Precautionary measures and the burden of proof: the Supreme Court, judgment no. 13269/2024, refers the assessment of social dangerousness to the lower court

Judgment no. 13269, filed on April 4, 2025 (decision of July 1, 2024) by the Criminal Supreme Court of Cassation marks a significant step in the application of personal and patrimonial precautionary measures under Legislative Decree 159/2011. The Supreme Court, by quashing with referral the decree of the Court of Appeal of Bologna, intervenes on the delicate balance between the need to protect public safety and individual guarantees, imposing on the lower court a burden of justification "all the more rigorous" when the subject has never been convicted and the facts on which dangerousness is based have resulted in dismissal. Let's see why the decision deserves attention.

The core of the decision

The case concerns S. C., who was subjected to precautionary measures despite a previous criminal proceeding that ended with dismissal. The Supreme Court recalls that Article 1(b) and Article 4 of the Anti-Mafia Code allow a person to be classified as "socially dangerous" even if they have no convictions, provided that the judge conducts an independent and complete assessment of the facts.

However, the Court emphasizes that the more favorable the outcome of the criminal proceeding is for the interested party (acquittal, dismissal, acquittal), the greater the care must be in explaining:

• which factual elements still remain indicative of dangerousness;
• why these elements, although deemed insufficient for the criminal proceedings, are nevertheless suitable under the different evidentiary standard for prevention ("qualified probability");
• the reasons why the conclusions of the public prosecutor or the preliminary investigation judge do not preclude the inference of dangerousness.

The official headnote commented

In the context of precautionary measures, the classification of a person subject to such measures within one of the profiles of subjective dangerousness can also be based on an independent assessment of facts that were the subject of criminal proceedings not concluded with a conviction, provided that, in such cases, the assessment of the existence of the prerequisites for the measure is carried out with all the more rigor the more favorable the outcome of the criminal proceeding was to the person concerned. (In application of the principle, the Court quashed with referral a decree applying personal and patrimonial precautionary measures, justified by reference to facts that were the subject of a criminal proceeding in which the person's position had been resolved by a dismissal order, as it did not take into account the reasons why the collected elements were not even deemed sufficient to initiate criminal proceedings against him).

The headnote summarizes the legal principle: dismissal does not automatically nullify the facts, but requires a more stringent review. This is a balance between the presumption of innocence (Article 48 of the Charter of Fundamental Rights of the European Union, Article 6 ECHR) and the preventive function, which relies on a less burdensome evidentiary standard than the criminal one. The message is clear: without precise reasoning explaining why the same elements deemed insufficient for indictment become convincing in the preventive proceeding, the measure must be annulled.

Regulatory and jurisprudential aspects

The obligation for enhanced justification is based on Articles 16 and 24 of Legislative Decree 159/2011, as well as Articles 111 of the Italian Constitution and 125 of the Code of Criminal Procedure. In line with previous rulings such as Cass. no. 24707/2018 and no. 15704/2023, the Supreme Court reiterates that the judge's discretion is never arbitrary: a true "double check" of dangerousness is required, taking into account:

• the seriousness, timeliness, and concreteness of the conduct;
• the proportionality of the measure to be applied;
• the suitability of the sources of evidence (wiretaps, police reports, witness statements).

The referral to the Court of Appeal will therefore compel the Bologna judges to re-examine in detail the reasons for dismissal: this serves as a warning to all courts dealing with prevention, who are called upon to distinguish between general suspicion and qualified proof.

Conclusions: what changes for defense and defendants

Judgment no. 13269/2024 offers important procedural protection to individuals subject to precautionary measures: it is no longer sufficient to refer to a "accumulation of evidence" or "criminal record." It is necessary to precisely illustrate why, despite the dismissal, there is a current and concrete dangerousness. For the defense, this opens up opportunities to challenge the lack of justification, invoking the principle of strict interpretation of norms limiting personal freedom.

At the same time, the ruling does not undermine the function of the measures: the judge can still assess facts that were not the subject of a conviction, but only in the face of robust and transparent reasoning. This approach may make decisions more predictable and consistent with constitutional and European standards, ensuring public safety and the protection of fundamental rights.