Preliminary Investigations and Technical Assessments: The Court of Cassation Clarifies the Limits of the Notice of Investigation with Judgment No. 24722/2025

Preliminary investigations are a crucial phase of criminal proceedings for the collection of evidentiary elements. The protection of the suspect's rights is fundamental, and the notice of investigation (Art. 369 of the Code of Criminal Procedure) is a cornerstone tool. But what are its boundaries, especially concerning urgent assessments? The Court of Cassation, with Judgment No. 24722/2025, has provided an important interpretation.

The Notice of Investigation and Urgent Assessments

The notice of investigation informs the suspect of the existence of proceedings and the right to appoint a defense counsel, allowing participation in investigative acts that could prejudice the defense, such as unrepeatable technical assessments. However, the code provides for investigative activities that, due to urgency or non-intrusive nature, can be carried out by judicial police without prior notification.

Judgment No. 24722/2025: The Clarification by the Court of Cassation

The case concerned T. P. and the necessity of notifying the notice of investigation before carrying out assessments of the state of the places with photographic surveys, performed by judicial police upon delegation from the Public Prosecutor. The Court of Cassation, with the ruling by President L. R. and Rapporteur A. S., provided a clear answer:

The mere description of the state of the places, accompanied by photographic surveys, even if carried out by judicial police upon delegation from the public prosecutor, does not require prior notification of the notice of investigation and the communication pursuant to Art. 369-bis of the Code of Criminal Procedure, falling within the scope of activities referred to in Arts. 352 and 354 of the Code of Criminal Procedure, subject, as such, to the regime of Art. 356 of the Code of Criminal Procedure.

This maxim is of fundamental importance. The Court established that photographic documentation and the description of the state of the places do not fall under the acts requiring the notice of investigation (Art. 369 of the Code of Criminal Procedure) or the communication pursuant to Art. 369-bis of the Code of Criminal Procedure. These activities are considered "urgent assessments" (Art. 354 of the Code of Criminal Procedure) or "judicial police activities" (Art. 352 of the Code of Criminal Procedure), falling under the regime of Art. 356 of the Code of Criminal Procedure. The latter allows the defense counsel to attend, without prior notice, but their absence does not invalidate the act. The distinction is crucial: these are not unrepeatable acts that require the guaranteed participation of the defense counsel, but mere observation activities that do not prejudice the right to defense at a later stage.

• Key Distinction: Difference between acts that could be altered (greater guarantees) and simple description/photographic reproduction of the state of the places.
• Role of Judicial Police: Autonomy of judicial police, even upon delegation from the Public Prosecutor, in carrying out urgent and non-intrusive assessments.
• Defense Guarantees: The right to defense is exercised at a later stage, where the collected elements can be contested.

Practical Implications for the Defense

For criminal lawyers and suspects, this ruling is a compass. Not every assessment by law enforcement will automatically entail the notification of the notice of investigation. Judicial police will be able to proceed with photographic surveys and descriptions of places without this formality, without violating defense guarantees.

However, it is essential to distinguish between a mere descriptive or photographic assessment (Arts. 352 and 354 of the Code of Criminal Procedure) and an unrepeatable technical assessment (Art. 369-bis or Art. 360 of the Code of Criminal Procedure), for which the participatory guarantees of the defense counsel are indispensable. Judgment No. 24722/2025, while confirming investigative efficiency, reiterates the importance of this distinction for the correct application of due process.

Conclusions: Investigative Efficiency and Suspect's Rights

The decision of the Court of Cassation, with Judgment No. 24722/2025, is a significant piece in preliminary investigations. It does not weaken defense guarantees but contextualizes them, clarifying which acts require immediate defense participation and which can be carried out in a more embryonic phase. A delicate balance, but essential for a swift and fair judicial system.