Judgment No. 37985 of 2023: Judge's Compatibility in the Pre-Trial Evidence Gathering Phase

Judgment No. 37985 of July 3, 2023, filed on September 15, 2023, offers an important reflection on the role of the judge within criminal proceedings, particularly concerning the issue of their compatibility when called upon to gather evidence in the pre-trial evidence gathering phase, after having issued a pre-trial detention order. This topic falls within a complex legal framework that warrants in-depth analysis, especially for legal professionals.

The Importance of the Judgment

The Court of Cassation, with this judgment, rejected the appeal filed by F. T., establishing that there is no cause for incompatibility for a judge who has issued a pre-trial detention order and is subsequently called upon to carry out evidence-gathering activities in the proceedings. This principle is of fundamental importance because it clarifies once and for all that the activity of evidence gathering does not imply an assessment of the merits of the accusation, but is rather a preparatory and non-decisional phase.

Issuance of a pre-trial detention order - Subsequent evidence gathering in the pre-trial evidence gathering phase - Incompatibility - Exclusion - Reasons. The fact that a judge, within the same proceedings, has issued an order applying a precautionary measure against the person under investigation does not constitute a cause for incompatibility and recusal of the judge called upon to gather evidence in the pre-trial evidence gathering phase, given that the procedural activity to be performed lacks any decisional connotation implying a deliberative assessment of the merits of the accusation.

Legal Implications

This decision is based on several provisions of the Code of Criminal Procedure, particularly Articles 34, 36, 37, and 292, which outline the conditions for judicial incompatibility. The Court emphasized the importance of distinguishing between the issuance of a precautionary measure and the subsequent investigative activities, highlighting that there is no overlap between the two phases. This implies a certain degree of reassurance for the parties involved, as the judge, engaged in these phases, is not influenced by previously made precautionary decisions.

• Clarity on the judge's role: the judge can operate without concern in both phases.
• Strong guarantee of impartiality: the evidence-gathering activity is separate from the precautionary measures.
• Strengthening trust in the judicial system: the decision contributes to the proper functioning of criminal proceedings.

Conclusions

In conclusion, Judgment No. 37985 of 2023 represents a significant step forward in defining the judge's role in criminal proceedings. Clarifying the judge's compatibility after issuing a precautionary order is crucial for ensuring fair and impartial justice. Lawyers and legal professionals must consider these legal developments to better assist their clients, ensuring that the rights of the accused are always respected throughout the entire proceedings.