Judgment No. 33944 of 2023: Analysis of the Loss of Effectiveness of Precautionary Measures

Judgment No. 33944 of July 13, 2023, issued by the Court of Cassation, offers important clarifications on the management of precautionary measures, particularly regarding their loss of effectiveness. The decision highlights the necessity of an appeal to the Court of Cassation to assert the ineffectiveness of such measures, a crucial aspect for legal professionals and parties involved in criminal proceedings.

Regulatory Context

The central issue of the judgment revolves around Article 311, paragraph 5-bis, of the Code of Criminal Procedure, which establishes that, in case of the expiry of the term for a precautionary measure, it loses its effectiveness. However, the Court of Cassation has clarified that the appellate judge has the obligation to rule on the issue of the loss of effectiveness of the precautionary measure. The absence of such a ruling, according to the judgment, constitutes a defect that can only be asserted through an appeal to the Court of Cassation.

Details of the Judgment

Loss of effectiveness of the measure pursuant to Article 311, paragraph 5-bis, of the Code of Criminal Procedure - Deductibility before the judge of the main proceeding - Exclusion - Notification through appeal to the Court of Cassation - Necessity. The failure of the appellate judge to rule on the supervening loss of effectiveness of the precautionary measure due to the expiry of the term referred to in Article 311, paragraph 5-bis, of the Code of Criminal Procedure constitutes a defect that can only be asserted through an appeal to the Court of Cassation within the framework of the "de libertate" proceeding and not also through a request for a declaration of ineffectiveness of the measure addressed to the judge of the main proceeding.

This maxim emphasizes that, despite the appellate judge's duty to examine the issue of the term's expiry, the interested party cannot simply request a declaration of ineffectiveness of the precautionary measure from the judge of the main proceeding but must follow the channel of an appeal to the Court of Cassation.

Practical Implications

• Clarity on appeals to the Court of Cassation: Legal professionals must be aware that the only instrument to contest the loss of effectiveness is an appeal to the Court of Cassation.
• Need for a correct defense strategy: It is essential to carefully plan how and when to file such appeals to avoid preclusions.
• Awareness of client rights: Defense counsel must inform their clients about the legal possibilities and timelines related to the loss of effectiveness of precautionary measures.

In conclusion, Judgment No. 33944 of 2023 represents an important reference point for jurisprudence on precautionary measures. It not only clarifies the rights of defendants and the responsibilities of judges but also offers food for thought for lawyers and legal practitioners in their daily work.

Conclusions

The management of precautionary measures is a matter of fundamental importance in criminal law, and the recent judgment of the Court of Cassation contributes to clarifying crucial aspects. It is essential for lawyers to understand the implications of this judgment and to prepare to best manage their clients' rights in this delicate area.