Preventive Interrogation and Intermediate-Regime Nullities: Analysis of Cassation Ruling 27444/2025

In the complex and dynamic landscape of criminal procedural law, the correct observance of forms and guarantees plays a crucial role in ensuring a "fair trial." Every act, every phase, is governed by precise rules, the violation of which can generate more or less serious defects, known as nullities. Recently, the Court of Cassation, with ruling no. 27444 of 09/07/2025 (filed on 25/07/2025), has ruled on a matter of great practical and theoretical importance: the nature and the terms for asserting the omission of the preventive interrogation, as provided for by art. 291, paragraph 1-quater of the Code of Criminal Procedure.

This ruling, presided over by Dr. D. A. G. and reported by Dr. P. G. A. R., addresses the case of the defendant B. M., whose appeal was rejected by the Naples Court of Liberty. The Supreme Court seized the opportunity to precisely delineate the legal regime of a specific nullity, providing fundamental guidance for legal practitioners and, ultimately, for the protection of citizens' rights.

The Core Issue: Preventive Interrogation and Defense Guarantees

The focal point of the decision revolves around art. 291, paragraph 1-quater of the Code of Criminal Procedure. This article, introduced to strengthen defense guarantees, stipulates that the public prosecutor, before requesting the application of a personal precautionary measure, must proceed with the interrogation of the investigated subject, except in exceptional cases. The objective is to allow the investigated person to provide their version of events and to defend themselves even before a restriction of personal liberty is requested.

The omission of such a preventive interrogation constitutes a serious violation of the right to defense, a cornerstone principle of our legal system, enshrined in art. 24 of the Constitution and art. 6 of the European Convention on Human Rights. The Cassation Court was called upon to establish the consequences of such an omission and, above all, within what timeframe and by what means such a defect could be asserted.

The Cassation Ruling and the Concept of Intermediate-Regime Nullity

The ruling in question crystallizes a fundamental principle that clarifies the legal regime of this specific violation. Here is the full ruling:

In matters of procedural nullities, the omission of the prior interrogation pursuant to art. 291, paragraph 1-quater, Code of Criminal Procedure, in cases where it is prescribed, constitutes a so-called intermediate-regime nullity pursuant to art. 178, paragraph 1, letter c), Code of Criminal Procedure, which can be asserted for the first time before the review court or noted by it "ex officio" even if it was not raised by the interested party during a subsequent post-guarantee interrogation, but it cannot be asserted for the first time beyond that procedural phase.

This ruling is of extreme importance. The Court classifies the omission of the preventive interrogation as an "intermediate-regime nullity" pursuant to art. 178, paragraph 1, letter c) of the Code of Criminal Procedure. But what exactly does "intermediate-regime nullity" mean? In our procedural system, nullities are distinguished as absolute, intermediate-regime, and relative, based on their severity and the regime for their assertion and validation. Intermediate-regime nullities are those that, while not curable in all cases (like relative ones), are also not detectable at every stage and level of the proceedings (like absolute ones).

The Cassation Court establishes that such a nullity can be asserted for the first time before the Court of Review. This is the crucial moment to assert the violation. Furthermore, the Court of Review can also note it ex officio, meaning autonomously, even if it has not been expressly raised by the defense. This is an important opening that underscores the seriousness of the defect and the attention of the legislator and jurisprudence to the protection of fundamental rights.

A fundamental aspect clarified by the ruling is that the nullity can be asserted before the Court of Review even if it was not raised by the interested party during the subsequent post-guarantee interrogation (the one provided for by art. 294 of the Code of Criminal Procedure after the execution of the precautionary measure). This prevents an oversight or a lack of immediate awareness of the defect from definitively precluding the possibility of asserting one's right. However, the ruling sets an insurmountable limit: such a nullity can no longer be asserted for the first time beyond the review phase. This means that once this phase is passed, the possibility of contesting the omission of the preventive interrogation is precluded.

Practical Implications and Protection of Rights

The practical consequences of this ruling are significant for all those facing criminal proceedings and, in particular, for defense attorneys. Here are some key points:

• **Strict Deadline:** The Court of Review phase becomes the crucial moment to assert the omission of the preventive interrogation. Timely and informed action is essential.
• **Role of the Court of Review:** The guarantee role of the Court of Review is strengthened, not only as the judge of the lawfulness and merits of the precautionary measure but also as a bulwark against serious procedural violations.
• **Importance of Preventive Interrogation:** The ruling reiterates the centrality of the interrogation provided for by art. 291, paragraph 1-quater of the Code of Criminal Procedure as an essential guarantee tool for the investigated person, emphasizing that its omission is not a mere formal error but a defect with precise legal consequences.
• **Defense Vigilance:** For the defense, it is crucial to always verify the regularity of the procedure, ensuring that the preventive interrogation has been correctly carried out in cases where it is prescribed.

This decision contributes to better defining the scope of defense guarantees, balancing the need for procedural speed with the necessity of ensuring full protection of the investigated person's fundamental rights.

Conclusions

The ruling of the Court of Cassation no. 27444 of 2025 represents an important clarification on criminal procedural nullities. It confirms the jurisprudence's commitment to ensuring full compliance with the rules protecting the right to defense, while establishing precise time limits for the assertion of such defects. Understanding the nature of an intermediate-regime nullity and the terms for its assertion is essential for any criminal lawyer and for anyone involved in a criminal proceeding. Promptness and competence in managing these delicate procedural issues can make the difference in the outcome of a trial.