Judgment no. 10946/2025 of the Court of Cassation: stop to the second precautionary appeal on the same measure

With ruling no. 10946, filed on March 19, 2025, the Sixth Criminal Section of the Court of Cassation reiterated a procedural principle of particular importance: when an appeal against a precautionary order is already pending, it is not permissible to file a new incidental proceeding under art. 309 of the Code of Criminal Procedure on the same grounds. The decision, which involves the suspect C. D., is of interest to lawyers, magistrates, and legal professionals due to its concrete implications for defence strategy.

The case examined by the Supreme Court

The case originated from a preliminary precautionary custody order issued by the Judge for Preliminary Investigations in Rome. The defence counsel, not legitimized as they had not yet been appointed, had filed a request for review, which was subsequently declared inadmissible. Meanwhile, an appeal to the Court of Cassation against this rejection was filed and is still pending. Not satisfied, a new defence counsel filed a second request under art. 309 of the Code of Criminal Procedure, reiterating the identical grounds. The Liberty Court declared it inadmissible; a decision now confirmed by the Court of Cassation.

The regulatory framework and case law

The codal framework combines several provisions:

• art. 96 of the Code of Criminal Procedure: governs the legitimacy of the defence counsel to file an appeal;
• art. 309 of the Code of Criminal Procedure: regulates the review of personal precautionary measures;
• art. 649 of the Code of Criminal Procedure: reiterates the principle of ne bis in idem, invoked in the judgment to support the uniqueness of the appeal.

Already the United Sections 34655/2005 and 18339/2004, as well as judgments 23371/2016 and 29627/2014, had excluded the possibility of duplicating precautionary appeals, to avoid an unreasonable paralysis of criminal proceedings and to prevent dilatory abuses.

The maxim

It is inadmissible, while an appeal against the precautionary order is pending, to file a further incidental proceeding concerning the same person and for the same act, based on the same elements. (In this case, the Court rejected the appeal against the measure by which the Tribunal, after the review against the preliminary order filed by an unauthorized defence counsel had been declared inadmissible, had declared inadmissible another request under art. 309 of the Code of Criminal Procedure in the interest of the suspect, reiterating the grounds already proposed, because the cassation proceedings relating to the first appeal had not yet been concluded).

The Court recalls the ratio of procedural economy: the presence of a pending appeal prevents the same measure from being re-examined, avoiding conflicting decisions and ensuring certainty in the proceedings. The right to defence remains intact, as the suspect can assert their reasons within the first and only appeal.

Practical implications for the defence

The principle affirmed requires criminal defence lawyers to:

• promptly verify the legitimacy to file the review;
• coordinate defence activities to avoid overlapping appeals;
• concentrate the grounds in the first instance of review, knowing that a subsequent "review of the review" will not be allowed;
• consider the eventual appeal to the Court of Cassation as a conclusive and non-overlapping stage.

Conclusions

Judgment 10946/2025 follows a line of case law aimed at countering the abuse of precautionary incidental proceedings and preserving the linearity of the process. For legal professionals, this means clarity: only one appeal route at a time, full respect for the adversarial principle but without repetitive manoeuvres. A warning for the defence to carefully plan the timing and content of appeals, avoiding negatively impacting the credibility of their strategy with identical requests.