Stalking and Precautionary Measures: The Cassation Court's Interpretation in Ruling No. 23201/2025

The crime of stalking, or persistent pursuit, threatens individual liberty and safety. Jurisprudence strives for effective protection. Ruling No. 23201 of the Court of Cassation, filed on 20/06/2025, clarifies the application of precautionary measures in the presence of new persecutory conduct. The decision, which rejected the appeal against the order of the Potenza Tribunal for the Protection of Liberty, illuminates the boundary between "open indictment" and "closed indictment," with significant implications for the aggravation of precautionary measures.

The Crime of Stalking and Precautionary Management: The Crucial Distinction

Article 612 bis of the Italian Criminal Code punishes anyone who, through repeated conduct, threatens or harasses, causing severe anxiety, fear for one's safety, or forcing the victim to alter their habits. Precautionary measures (Articles 273 et seq. of the Italian Code of Criminal Procedure) are essential. But what happens if the perpetrator continues their conduct despite a measure being in place? The Cassation Court, in ruling No. 23201/2025 (President Dr. C. R., rapporteur Dr. B. M. T.), responds by distinguishing between:

• Open Indictment: The charge describes ongoing persecutory behavior, not limited to specific incidents, and includes future conduct. In this case, subsequent conduct does not require a new proceeding or a new precautionary order, and can lead to the aggravation of the existing measure.
• Closed Indictment: The charge refers to well-defined and specific incidents. Here, subsequent incidents will require a supplementary indictment or a new criminal proceeding.

This distinction is fundamental in the context of precautionary measures. If the indictment is "open," subsequent conduct does not require the initiation of a new criminal proceeding or the issuance of a new precautionary order. It can be considered for the aggravation of the measure already in effect.

Regarding acts of stalking, in the case of an "open" indictment, subsequent conduct constitutes the continuation of the same crime. Therefore, in the context of precautionary measures, such conduct can be evaluated for the purpose of aggravating the measure already in effect, without the need to open a new criminal proceeding or issue another precautionary order. (In its reasoning, the Court specified that, conversely, in the case of a "closed" indictment, subsequent incidents must be included in a supplementary indictment or a new filing).

This principle is highly significant: if the stalking charge is formulated in an "open" manner, new persecutory acts are viewed as a continuation of the same crime. This allows the judge to quickly aggravate the existing precautionary measure (e.g., from a restraining order to house arrest) without the delays of a new judicial process. The objective is to ensure an immediate and effective response to the ongoing danger to the victim. If, however, the indictment is "closed," subsequent incidents will require a supplementary indictment or a new criminal proceeding.

Practical Implications and Conclusions

The Cassation Court's ruling has significant repercussions. For victims, it offers greater protection: the possibility of an immediate aggravation of precautionary measures without delays instills confidence and can act as a deterrent. For legal professionals, it highlights the strategic importance of how the indictment is formulated. An "open indictment" ensures greater flexibility and responsiveness in the application and aggravation of precautionary measures, proving to be a more agile and effective tool in the fight against stalking. This orientation aligns with European directives and the Istanbul Convention, which promote effective measures against gender-based violence. Ruling No. 23201/2025 is a fundamental piece in the jurisprudence on persecutory acts, strengthening the tools for faster and more effective victim protection, demonstrating the constant commitment of our legal system to safeguarding fundamental rights.