Commentary on Judgment No. 20045 of 2023: Reflections on the Prohibition of Double Jeopardy

The recent judgment No. 20045 of April 26, 2023, filed on May 11 of the same year, has raised important questions regarding the principle of the prohibition of a second trial, known as "ne bis in idem." This principle, fundamental in criminal law, prevents a person from being tried twice for the same act. In this case, the Court of Cassation clarified the limits of the judge's power in the context of precautionary measures.

The Case and the Court's Decision

In the examined case, the trial judge allowed the public prosecutor to close an open charge concerning an associative crime. This led to the temporal delimitation of the "thema decidendum," thereby limiting the scope of the trial. The Court ruled that the judge in the precautionary sub-proceeding cannot review this decision, even in the presence of a non-final decision.

PROHIBITION OF A SECOND TRIAL ("NE BIS IN IDEM") - Precautionary "Ne Bis In Idem" - "Open" Charge of Associative Crime - Closure by the Public Prosecutor in the Allegedly Preclusive Main Proceedings - Preclusive Effects of a Non-Final Decision - Configurability - Review Powers of the Precautionary Judge - Exclusion - Reasons. In the context of precautionary "bis in idem," after the trial judge in the allegedly preclusive main proceedings has allowed the public prosecutor to "close" the "open" charge of associative crime, thus accepting the temporal delimitation of the "thema decidendum," the judge in the precautionary sub-proceeding cannot review that decision – which is currently in force and effective, albeit not final – nor can they incidentally disregard it to assert that the first trial covers a longer period than that considered by the trial judge, as it is incumbent upon the latter to prevent any abuses and to verify that the delimitation of the indictment does not translate into an inadmissible retraction of criminal action.

Implications of the Judgment

This judgment highlights several critical aspects of Italian criminal legislation. In particular, the decisions of the public prosecutor, although not final, assume central importance in determining the direction of the precautionary proceedings. This implies that the precautionary judge must respect the choices made by the trial judge, thereby limiting their own power of intervention.

• Recognition of the public prosecutor's discretionary power.
• Limits on the judge's review in the precautionary sub-proceeding.
• Importance of temporal delimitation in criminal proceedings.

Conclusions

Judgment No. 20045 of 2023 offers significant insights for reflection on criminal law and its practical application. The approach adopted by the Court of Cassation highlights the need for a clear delimitation of responsibilities among the various actors in criminal proceedings. This balance is essential to ensure respect for the rights of the accused and the proper administration of justice.