Precautionary Measures and the Right to Defence: The Criminal Cassation Court on the Necessity of the Guarantee Interrogation (Judgment no. 28457/2025)

The Italian criminal procedural system is woven with fundamental guarantees aimed at ensuring a balance between the need to repress crimes and the protection of inviolable individual rights. Among these, personal precautionary measures play a paramount role. These are instruments designed to prevent the repetition of crimes, the tampering of evidence, or the flight of the suspect, but they profoundly impact personal liberty. In this context, the guarantee interrogation stands as an indispensable bulwark of the right to defence. The ruling of the Criminal Cassation Court, Section 5, with Judgment no. 28457 of July 23, 2025 (filed on August 4, 2025), presided over by Dr. L. Pistorelli and drafted by Dr. E. M. Morosini, offers essential clarification on the consequences of an omitted interrogation during the validation hearing of an arrest, even in the presence of force majeure.

The Case and the Fundamental Principle Established by the Cassation Court

The case examined by the Supreme Court, which involved the defendant H. Yesildag, concerned a situation where the suspect's interrogation during the validation hearing of a flagrante delicto arrest had not been conducted due to force majeure: the unavailability of an interpreter. The Palermo Liberty Court had previously validated the arrest and applied a coercive measure. However, the Cassation Court annulled this decision, emphasizing a principle of fundamental importance: while not preventing the validation of the arrest and the simultaneous application of a coercive measure, an omitted interrogation due to force majeure nevertheless requires the subsequent conduct of the guarantee interrogation. Failure to comply with this obligation entails a very serious sanction: the immediate loss of effectiveness of the precautionary order, as provided for by Article 302 of the Code of Criminal Procedure.

This ruling reinforces the principle that the protection of the right to defence cannot be curtailed, not even in the face of operational difficulties. The suspect's right to be heard by the judge, to present their version of events, and to contest the charges against them is a cornerstone of a fair trial.

In matters of personal precautionary measures, the omitted interrogation of the suspect during the validation hearing of a flagrante delicto arrest due to force majeure, while not preventing the validation of the arrest and the simultaneous application of a coercive measure, requires the subsequent conduct of the guarantee interrogation within the terms of Article 294 of the Code of Criminal Procedure, under penalty of the immediate loss of effectiveness of the original order pursuant to Article 302 of the Code of Criminal Procedure (Case relating to the unavailability of an interpreter for the validation hearing).

The above-cited maxim is clear and impactful. It highlights how the Court distinguishes between the validity of the arrest validation and the effectiveness of the precautionary measure. If force majeure (such as the lack of an interpreter, pursuant to Article 143 of the Code of Criminal Procedure) can justify the omission of the interrogation during the validation hearing, it cannot in any way exempt the judge from the obligation to proceed with the guarantee interrogation within the time limits set by Article 294 of the Code of Criminal Procedure. The reason is profound: the guarantee interrogation is not a mere formality but a crucial moment in which the suspect can fully exercise their right to defence, providing their version of events and contributing to verifying the existence and persistence of the prerequisites that legitimize the restrictive measure. Without this step, the measure loses its basis of legitimacy, becoming ineffective.

The Guarantee Interrogation: A Bulwark of the Right to Defence

The guarantee interrogation, governed by Article 294 of the Code of Criminal Procedure, represents one of the most significant moments for the protection of the suspect's rights. It is at this stage that the judicial authority, after the application of a precautionary measure, must hear the person subjected to the measure. The purposes of this interrogation are manifold and indispensable:

• To ensure the full exercise of the right to defence, allowing the suspect to be heard by the judge who issued the measure.
• To enable the suspect to provide their version of events, to contest the charges, and to present exculpatory evidence.
• To verify the persistence and current relevance of the prerequisites that justified the application of the precautionary measure.
• To ensure compliance with the principle of adversarial proceedings, a cornerstone of a fair trial enshrined in Article 111 of the Constitution and Article 6 of the European Convention on Human Rights (ECHR).

The judgment in question strongly reiterates that not even "force majeure" can curtail the right to this interrogation. The omission, even if initially justified, cannot be prolonged, under penalty of the nullity and ineffectiveness of the measure. This requires greater attention from legal professionals to ensure that the conditions for carrying out this obligation are always guaranteed, including the availability of interpreters when necessary.

Practical Implications for Legal Professionals

The Cassation Court's decision has significant practical implications for all actors in the criminal process. For Public Prosecutors and judges, it serves as a reminder to scrupulously ensure the effective conduct of the guarantee interrogation within the legal timeframes, even when the validation hearing has been complex or incomplete. For defence lawyers, the ruling offers a powerful tool for protecting their clients: the failure to hold the guarantee interrogation, even in the face of a valid arrest validation, can and must be raised to obtain the immediate revocation of the precautionary measure pursuant to Article 302 of the Code of Criminal Procedure. This principle translates into greater protection for the suspect, whose right to be heard cannot be sacrificed even in the face of procedural unforeseen events.

Conclusions

Judgment no. 28457 of 2025 by the Court of Cassation aligns with a line of case law aimed at strengthening defence guarantees within the system of precautionary measures. By reiterating the centrality of the guarantee interrogation as an indispensable tool for exercising the right to defence, even in the presence of force majeure that prevented the interrogation during the validation hearing, the Supreme Court has drawn a clear line: personal liberty can only be restricted in full compliance with procedures and fundamental rights. This ruling not only offers interpretative clarity but also underscores the importance of a careful and protective application of procedural rules, safeguarding every citizen.