Judgment No. 38880 of 2023: The Importance of Recording in Judicial Police Activities

The recent judgment No. 38880 of July 14, 2023, by the Court of Cassation has generated considerable interest in the Italian legal landscape, particularly concerning the methods of documenting judicial police activities. This ruling addresses a crucial issue: the legitimacy of omitting the recording of statements made by persons informed about the facts, in the presence of specific impediments.

Context of the Judgment

The Court examined a case where information provided by a person informed about the facts was not recorded but was instead noted in judicial police records. The central question was whether such information could be used for the application of precautionary measures. In this context, the Court confirmed the legitimacy of omitting the recording based on Article 373, paragraph 4, of the Code of Criminal Procedure, establishing that the concrete impediment of the informed person constitutes a valid prerequisite for such omission.

DOCUMENTATION OF ACTIVITIES - Impediment of the person informed about the facts who makes statements - Omission of recording pursuant to Article 373, paragraph 4, Code of Criminal Procedure - Legitimacy - Case law. Regarding the documentation of judicial police acts, the impediment of the person informed about the facts, resulting from concrete circumstances, constitutes a suitable prerequisite for the omission of recording, pursuant to Article 373, paragraph 4, Code of Criminal Procedure, of the relevant statements and for their inclusion in the judicial police annotation. (Case in which the unrecorded information, but reported in the judicial police annotation, was deemed usable for the application of the precautionary measure).

Legal Implications

The judgment emphasizes the importance of a pragmatic approach in documenting statements by judicial police. Concrete circumstances justifying the omission of recording may include emergency situations or danger to the informed person. Below are some key considerations:

• Respect for fundamental rights: The omission of recording in the presence of concrete impediments does not violate the rights of the informed person, although there must always be a balance between investigative needs and individual guarantees.
• Validity of information: Noted information can be used, provided it meets criteria of reliability and relevance.
• Role of jurisprudence: The Court referred to previous judgments, including judgment No. 37316 of 2021, to support its position.

Conclusions

In conclusion, judgment No. 38880 of 2023 represents an important milestone in understanding the recording of statements in judicial police activities. It reaffirms the need to ensure that investigative procedures are conducted in compliance with norms and fundamental rights, while allowing a degree of flexibility in particular situations. This approach not only protects the effectiveness of investigations but also preserves procedural guarantees, making the legal system fairer and more balanced.