Rationale for Precautionary Orders: The Court of Cassation and Referral "per Relationem" (Judgment no. 30327/2025)

In the landscape of Italian criminal law, the issue of the rationale for judicial measures holds cardinal importance, especially when they affect personal liberty. The clarity and completeness of the reasons underlying a precautionary order are fundamental pillars of a fair and rights-guaranteeing process. The Court of Cassation, with Judgment no. 30327 of 2025, has once again addressed a delicate and often debated topic: the admissibility of "per relationem" or "incorporation" rationale in personal precautionary orders. This ruling offers important clarifications and consolidates the jurisprudential orientation on the matter, precisely outlining the boundaries within which a judge can refer to the Public Prosecutor's documents.

The Principle of Rationale and Precautionary Measures

Personal precautionary measures, such as arrest or pre-trial detention, represent instruments of extreme impact, capable of significantly limiting an individual's freedom even before a final conviction. Precisely because of their nature, the law imposes stringent requirements for their issuance. Article 292, paragraph 2, letter c) of the Code of Criminal Procedure, in fact, establishes that the order imposing a precautionary measure must contain, under penalty of nullity, the statement of the specific precautionary needs and the serious indications of guilt that justify the application of the measure.

The challenge for judges, and particularly for the Liberty Court (as in the case of the Tribunal of Palermo, which had rejected the appeal of M. A. in the judgment under review), lies in balancing the need for a complete and autonomous rationale with the practicality and speed required by the preliminary investigation phase. In this context, the possibility of referring "per relationem" to the Public Prosecutor's documents has been the subject of numerous debates.

Regarding the rationale for personal precautionary orders, the autonomous assessment of precautionary needs and serious indications of guilt, prescribed by art. 292, paragraph 2, letter c), of the Code of Criminal Procedure, is observed even when the judge refers, "per relationem" or by incorporation, to the objective elements that emerged during the investigations as reconstructed in his request by the public prosecutor, provided that he accounts for his critical examination of those elements and the reasons why he considers them suitable to justify the application of the measure.

The maxim above, extracted from Judgment no. 30327/2025, is the core of the issue. It clarifies that referral "per relationem" is admissible, but it does not constitute a blank check. The judge, while able to refer to the objective elements gathered by the P.M. V. A. P. and illustrated in his request, must still demonstrate that he has conducted his own independent critical examination of those elements. A mere "copy and paste" or a generic reference is not enough: it is essential that President C. F. or the rapporteur M. M. M. or the reporting judge M. M. M. explain the reasons why the acquired elements are deemed suitable to support the precautionary measure. This ensures that the decision is not an automatic endorsement of the prosecution's case, but the result of a considered and independent judicial evaluation.

Conditions for a Valid Referral "Per Relationem"

The Court of Cassation, with the judgment in question, reiterates an already established principle, but does so with a clarity that deserves attention. For the "per relationem" rationale to be valid, it must meet specific conditions, which can be summarized as follows:

• **Autonomous Critical Examination:** The judge cannot limit himself to passively accepting the Public Prosecutor's arguments. On the contrary, he must demonstrate that he has critically evaluated them, examining their relevance, foundation, and congruence with the specific case.
• **Indication of Suitability Reasons:** It is essential that the judge explicitly states the reasons why the objective elements, as reconstructed by the Public Prosecutor, are considered sufficient and suitable to justify the application of the precautionary measure. This means explaining the logical link between the ascertained facts and the necessity of the precaution.
• **Specificity of Referral:** The referral cannot be generic but must concern specific elements that emerged during the investigations and are clearly identifiable.

These conditions are in place to protect the defendant's right to defense (M. A.) and the principle of a fair trial. Only a rationale that respects these requirements allows the suspect and their defense counsel to fully understand the reasons for the precautionary measure and, consequently, to effectively challenge it.

Conclusions

Judgment no. 30327 of 2025 by the Court of Cassation represents a further step in consolidating the principles governing the rationale for personal precautionary orders. By rejecting the appeal, the Supreme Court reiterated that, although referral "per relationem" is a permissible tool for reasons of procedural economy, it can never empty the judge's duty of an autonomous and critical assessment of the evidentiary elements and precautionary needs. Personal liberty is a primary good, and its restriction must always be supported by a transparent, understandable, and logically founded judicial measure, in which the judge's role as guarantor is clearly perceptible. This ruling strengthens confidence in the judicial system, ensuring that every decision affecting fundamental rights is the result of careful consideration and not mere ratification.