Tacit Consent to the Acquisition of Investigative Acts: The Cassation Court's Interpretation in Judgment No. 29678 of 2025

In the dynamic landscape of criminal procedural law, every ruling by the Supreme Court of Cassation contributes to defining the boundaries of normative interpretation. A crucial issue concerns the formation of the trial file and the acquisition of preliminary investigative acts. In this context, the recent Judgment No. 29678, filed on August 25, 2025, by the Court of Cassation, offers decisive clarifications on the concept of "tacit consent" to the acquisition of such acts. Let us analyze together the implications of this ruling, presided over by Dr. M. G. R. A. and with Dr. M. T. as rapporteur, which involved the defendant D. N. B. and the Public Prosecutor Dr. M. G.

The Formation of the Trial File and the Principle of Consent

The trial represents the central moment where evidence is formed, in compliance with the adversarial principle. The trial file, governed by Article 431 of the Code of Criminal Procedure (CPP), contains the acts usable for the decision. Among these are irretrievable acts and those acquired with the consent of the parties. The issue of consent is vital, as it affects the possibility of using elements gathered during preliminary investigations, not formed in adversarial proceedings, as evidence.

The judgment in question addresses this delicate balance, establishing that consent to the acquisition of investigative acts does not necessarily have to be expressed explicitly. The Court of Cassation, rejecting the appeal against a decision of the Court of Appeal of Bari of March 3, 2025, reiterated that consent can also be manifested tacitly.

In the matter of the formation of the trial file, consent to the acquisition of investigative acts contained in the public prosecutor's file can be expressed tacitly through the absence of opposition, if the overall procedural conduct of the interested party is incompatible with a contrary will.

This maxim is the core of the ruling. It clarifies that the absence of formal opposition, combined with unequivocal procedural conduct, can be sufficient. It is not mere inertia, but behavior that denotes adherence. For example, requesting the production of acts from the Public Prosecutor's file without reservations, or using them as a basis for one's own arguments, can constitute such implicit consent.

Conditions for the Admissibility of Implicit Consent: Unequivocal Conduct

The Supreme Court, with judgment No. 29678/2025, emphasizes that the "overall procedural conduct of the interested party" must be "incompatible with a contrary will." This requirement is fundamental to distinguishing tacit consent from mere inattention. Lack of opposition is not enough; it is necessary for actions or omissions to clearly and unequivocally demonstrate acceptance of the acquisition of the acts.

This principle is referenced in various provisions of the CPP, such as Articles 493 paragraph 3, 431, 491 paragraph 2, and 484. Case law has highlighted how the right to defense requires active and conscious procedural conduct.

Examples of conduct interpretable as tacit consent include:

• The use of an act by the defense during witness examination or final arguments, despite having the opportunity to oppose its acquisition.
• The failure to raise objections of nullity or inadmissibility of acts within the deadlines, despite being aware of them.
• The request for the reading of acts not duly acquired, without reservations about their origin or usability.

It is crucial for lawyers to always be vigilant and aware of the documentation and implications of their every action or omission, as silence, if accompanied by consistent behavior, can have binding legal effects.

Conclusions and Practical Implications

Judgment No. 29678 of 2025 by the Court of Cassation follows a consolidated line of case law, clarifying its contours. By reiterating the admissibility of tacit consent to the acquisition of investigative acts, the Supreme Court underscores the importance of unequivocal procedural conduct. This ruling is a warning to all legal professionals: vigilance and awareness of one's actions and omissions in court are fundamental to protecting the rights of the parties and ensuring the correctness of the proceedings. Careful management of procedural phases and a clear defense strategy become even more crucial in a context where silence, if not accompanied by a consistently manifested contrary will, can take on significant value for the outcome of the judgment.