Precautionary Measures and Interrogation: The Court of Cassation with Judgment no. 28187 of 2025 Clarifies the Limits of the Adversarial Principle

The Italian legal landscape is constantly evolving, and the decisions of the Supreme Court of Cassation represent essential cornerstones for the interpretation and application of norms. A recent ruling, Judgment no. 28187 of June 26, 2025 (filed on July 31, 2025), is of particular importance for criminal procedural law, as it clarifies a fundamental aspect concerning personal precautionary measures and the defendant's right to defense. The decision, issued by the Fifth Criminal Section and presided over by Dr. M. G. R. A. with Dr. B. M. T. as rapporteur, addresses the issue of the necessity of a prior interrogation in the event of the application of a coercive measure by the Review Court, upon upholding the Public Prosecutor's appeal.

The Context of Precautionary Measures and the Role of the Review Court

Personal precautionary measures are measures restricting individual liberty, applied provisionally before a final judgment, for reasons related to the protection of the community or the continuation of investigations. They can be coercive (such as pre-trial detention or house arrest) or interdictory. The legal system provides stringent guarantees for their application, including the defendant's right to be interrogated.

When the Public Prosecutor is not satisfied with a decision by the Judge for Preliminary Investigations (GIP) regarding precautionary measures, they may appeal to the Review Court (pursuant to art. 310 of the Code of Criminal Procedure - c.p.p.). It is in this context that the issue examined by the Court of Cassation arises: whether, in the event of the Review Court upholding the Public Prosecutor's appeal and consequently applying a coercive measure, it is mandatory to proceed with the defendant's prior interrogation, as provided for by art. 291, paragraph 1-quater, of the Code of Criminal Procedure (c.p.p.) for the initial application of the measure.

The Position of the Court of Cassation: Ruling and Commentary

In matters of personal precautionary measures, the application by the review court of a coercive measure, upon upholding the public prosecutor's appeal, need not be preceded, in the cases provided for by art. 291, paragraph 1-quater, of the Code of Criminal Procedure, by the defendant's prior interrogation, as the right to an anticipatory adversarial hearing and the right to defense are ensured by the possibility for the defendant to appear at the hearing for the examination of the appeal and to request to be interrogated.

With this ruling, the Supreme Court has unequivocally clarified that the defendant's prior interrogation, provided for the initial phase of applying a coercive precautionary measure, is not a mandatory step when such a measure is applied by the Review Court upon the Public Prosecutor's appeal. The reason for this exclusion lies in the fact that the defendant's right to the adversarial principle and to defense is not at all curtailed, but simply reorganized. The defendant indeed has the full option to appear personally at the hearing set for the examination of the appeal and, in that venue, request to be interrogated. This possibility ensures that the principle of the adversarial process is respected nonetheless, albeit at a different procedural stage compared to the application of the measure.

The Court, therefore, balances the need for speed and functionality of the precautionary system with the inalienable guarantees of defense. This is not a denial of the right to defense, but a modulation of it that takes into account the procedural phase in which the measure is ordered. This orientation, which follows the path of previous decisions (such as No. 27444 of 2025 or No. 14958 of 2019, and also the United Sections No. 17274 of 2020), consolidates the interpretation that sees the review hearing as the privileged venue for the exercise of the right to defense in these specific cases.

Practical Implications for Defense and Legal References

This judgment has significant practical implications for lawyers and defendants. It means that the defense strategy must be oriented towards fully exploiting the hearing before the Review Court. It is there that the defendant, assisted by their lawyer, can exercise their right to be interrogated and present all elements in their defense or for the mitigation of the requested measure.

The key legal references are:

• Art. 310 c.p.p.: Governs appeals against orders concerning precautionary measures.
• Art. 291, paragraph 1-quater, c.p.p.: Provides for prior interrogation for the application of a coercive measure by the judge.
• Art. 292, paragraph 3, c.p.p.: Concerns the content of the order issuing the measure.

The ruling of the Court of Cassation confirms that the right to defense is guaranteed, but its exercise is adapted to the specificity of the procedural phase, emphasizing the active participation of the defendant and their lawyer in the review hearing.

Conclusions

Judgment no. 28187 of 2025 by the Court of Cassation represents a fundamental reference point for the correct interpretation and application of norms concerning personal precautionary measures. It reiterates a principle of balance between the need for effective judicial action and the safeguarding of the defendant's fundamental rights. Despite the exclusion of prior interrogation in the phase of the Public Prosecutor's appeal to the Review Court, the right to defense and the adversarial principle are fully ensured by the possibility for the defendant to be heard at the hearing. This decision underscores the importance of a diligent and prepared defense, capable of acting proactively at every stage of the criminal proceedings to best protect the interests of their client.