Appeal and Interdictive Measures: Reflections on Judgment No. 34130 of 2023

Judgment No. 34130 of 2023, issued by the Court of Cassation, represents an important ruling on personal precautionary measures and their appeal regime. In particular, the Court rules on appeals against the rejection of requests for revocation or substitution of an interdictive measure, confirming certain fundamental principles governing the review proceedings of precautionary measures.

Regulatory Context

The appeal proceeding in question is based on Article 310 of the Code of Criminal Procedure, which establishes that the suspect may appeal the order rejecting a request for revocation or substitution of a precautionary measure. However, the Court emphasizes that the review court is bound by the devolutive effect of the appeal and, therefore, has no investigative powers. This means it cannot conduct new investigations or gather further evidence within the scope of the review.

Fundamental Principles and Consequences

Appeal against the rejection of a request for revocation or substitution of an interdictive measure - Devolutive effect - Existence - Investigative powers of the review court - Exclusion - Consequences. In the appeal proceeding pursuant to art. 310 of the Code of Criminal Procedure filed by the suspect against the order rejecting a request for revocation or substitution of an interdictive measure, the review court is bound by the devolutive effect of the appeal and lacks investigative powers, as well as being subject to time limits for issuing the control measure. Therefore, the assertion of a new factual situation, deemed more favorable to the appellant, must be the subject of a new and further documented request to the presiding judge and, in case of denial, of an appeal through a precautionary appeal.

The Court therefore clarifies that any new factual situation favorable to the appellant must be presented through a request to the presiding judge and cannot be examined directly on appeal. This approach aims to ensure respect for the rights of the parties involved, preventing the review court from becoming an additional first-instance proceeding.

Conclusions

Judgment No. 34130 of 2023 provides clear guidance on the limits and procedures for appealing interdictive measures, highlighting the importance of adhering to the procedures established by the Code of Criminal Procedure. This case underscores the need for a rigorous approach in handling requests for revocation or substitution of precautionary measures, avoiding situations of uncertainty or abuse of the right to defense. In an increasingly complex legal landscape, clarity and legal certainty are fundamental elements for the protection of individual liberties.