Supreme Court of Cassation No. 28440/2025: The Right to Written Translation for the Foreign-Language Defendant in Precautionary Measures

Ensuring a fair trial for everyone, including those who do not speak Italian (foreign-language speakers), is a cornerstone of our judicial system. The Supreme Court of Cassation ruling No. 28440 of June 20, 2025 (filed on August 4, 2025) clarifies a crucial aspect: the translation of documents in personal precautionary measures. This ruling defines the relationship between urgent oral translation and the fundamental right to written translation, a central theme for the right to defense.

Urgent Translation vs. Written Translation: The Limits of Orality

The case examined by the Supreme Court concerned the defendant F. H., who was subjected to a precautionary measure. The core issue was the adequacy of the translation of the order. Article 51-bis, paragraph 2, of the implementing provisions of the Code of Criminal Procedure allows for an "urgent translation" (oral and summarized) for speed. Article 143 of the Code of Criminal Procedure, on the other hand, guarantees the foreign-language speaker the right to a written translation of essential documents. Ruling No. 28440/2025 has defined the relationship between these two provisions, balancing expediency and the right to defense.

In matters of personal precautionary measures, the urgent translation procedure, provided for the validation hearing of an arrest in flagrante delicto and the simultaneous order for the application of a measure by Article 51-bis, paragraph 2, of the implementing provisions of the Code of Criminal Procedure, contemplates, where the defendant's right to defense is not prejudiced, a mere oral translation, even in a summarized form, which does not serve as a substitute but rather as an integration of the guarantees under Article 143 of the Code of Criminal Procedure. Therefore, the omission or untimely written translation of the initial order issued against a foreign-language defendant who does not know Italian, unless expressly and knowingly waived by them, results in an intermediate nullity, which can be raised with a review request, provided that a current and concrete interest is asserted, consisting of an unlawful prejudice to the right to defense, measured against the specific case, characterized by the omission of written translation but still marked by the intervening urgent oral translation.

The Court of Cassation clarifies that urgent oral translation does not replace the written translation of the precautionary order but supplements it. The latter is a fundamental right for the foreign-language defendant, essential for an in-depth analysis of the reasons and for an effective defense. The omission of the written translation, unless knowingly waived, generates an intermediate nullity.

Intermediate Nullity: Conditions and Consequences

An "intermediate nullity" does not automatically invalidate the act but must be raised by the defendant or their counsel through a review request. It is essential to demonstrate a "current and concrete interest," meaning an "unlawful prejudice to the right to defense," by arguing how the lack of written translation limited the ability to understand the charges or contest the measure. Ruling No. 28440/2025 annuls the decision of the Tribunal for the Liberty of Salerno with referral for a new evaluation.

Key points:

• Urgent oral translation (Art. 51-bis of the implementing provisions of the Code of Criminal Procedure) is supplementary, not substitutive, to written translation (Art. 143 of the Code of Criminal Procedure).
• Written translation of the precautionary order is a fundamental right for the foreign-language defendant.
• Omission or untimely written translation generates an intermediate nullity.
• It is necessary to demonstrate concrete prejudice to the right to defense to assert this nullity.
• A waiver of written translation is valid only if express and conscious.

Conclusions: A Crucial Step for a Fair Trial

The Supreme Court of Cassation ruling No. 28440 of 2025 is a crucial jurisprudential clarification. It consolidates the protection of the right to defense for foreign-language defendants, balancing the need for procedural speed with the effective understanding of judicial documents. It reminds legal professionals that a trial is fair only if every participant can fully exercise their rights, without linguistic barriers.