Judgment No. 39485 of 2023: Precautionary Measures and Elected Offices

Judgment No. 39485 of September 6, 2023, issued by the Court of Cassation, offers important clarifications regarding the application of precautionary measures against individuals holding elected offices, such as municipal councilors. In particular, the Court has established that the application of coercive measures, such as the prohibition of residence, is legitimate even for those elected through direct popular mandate. This represents a crucial point for ensuring legality and equality before the law.

The Regulatory Context

The Court's decision is based on an interpretation of the provisions of the Code of Criminal Procedure, specifically Articles 274, 283, and 289. Article 274, for example, establishes the conditions for the application of precautionary measures, while Article 283 governs the application of coercive measures. The Court reiterated that the prohibition of applying interdictory measures to those holding public office cannot be understood as a precautionary "safe conduct."

Person holding an elected office by direct popular mandate - Prohibition of residence in the place where the office is located - Applicability - Reasons. The application of a coercive precautionary measure to a person holding an elected office by direct popular mandate is legitimate, as the prohibition of applying the interdictory measure of suspension from the exercise of a public office or service to such a subject cannot be interpreted as introducing a precautionary "safe conduct," under penalty of violating the principle of equality. (Case concerning an order applying the precautionary measure of prohibition of residence in the municipality where the appellant held the office of municipal councilor).

Implications of the Judgment

This judgment marks an important victory for legality, as it affirms that those holding elected office must answer for their actions like any other citizen. Precautionary measures should not be considered an obstacle to the exercise of public function, but rather a tool to ensure compliance with the law. Below are some of the main implications of the judgment:

• Clarity in the distinction between interdictory measures and coercive precautionary measures.
• Affirmation of the principle of equality before the law.
• Possibility of applying precautionary measures even to elected positions, in case of necessity.

Conclusions

Judgment No. 39485 of 2023 represents a step forward in safeguarding legality and equality, clarifying that precautionary measures can also be applied to those holding public office. This underscores the importance of a legal system that does not differentiate between citizens and elected representatives, thereby promoting trust in justice and institutions.