Omission of Preliminary Interrogation and Nullity of Precautionary Measures: Cassation Ruling No. 17916/2025

In criminal law, defence guarantees are crucial, especially in relation to personal precautionary measures. The Court of Cassation, with ruling no. 17916 of March 20, 2025 (filed on May 13, 2025), has provided a fundamental clarification on the omission of the preliminary interrogation provided for by Article 291, paragraph 1-quater, of the Code of Criminal Procedure. This decision is crucial for defence guarantees in personal precautionary measures, defining the procedural consequences of such a failure and the limits to the integrating power of the Review Court, a matter of great importance for the protection of the defendant's rights.

Preliminary Interrogation: An Indispensable Guarantee

Article 291, paragraph 1-quater, of the Code of Criminal Procedure is an essential safeguard, requiring a preliminary interrogation before the application of a personal precautionary measure. This allows the suspect to present their version of events, strengthening the right to defence. Such an interrogation is mandatory, except for specific exceptions for categories of offences or for well-founded risks of flight or tampering with evidence, which must always be adequately substantiated. The ruling in question addresses precisely the consequences of non-compliance with this procedure, reiterating a cornerstone principle of a fair trial.

The Cassation Ruling: Nullity and Limits of Review

The Supreme Court, in the case of the defendant G. L., annulled without referral the order of the Rome Liberty Court of November 26, 2024. The key decision is that the omission of the preliminary interrogation, in the absence of adequate substantiation of risks of flight or tampering with evidence, leads to an "intermediate nullity".

The omission of the preliminary interrogation provided for by art. 291, paragraph 1-quater, of the Code of Criminal Procedure results – in the absence of a risk, which requires adequate substantiation, of flight or tampering with evidence – in an intermediate nullity, for violation of art. 178, letter c), of the Code of Criminal Procedure, of the order applying a personal precautionary measure issued for the needs referred to in art. 274, letter c), of the Code of Criminal Procedure in relation to offences other than those falling within the categories enumerated by the same art. 291, paragraph 1-quater, cited (In the grounds, the Court specified that the review court cannot exercise the power to supplement the grounds referred to in art. 309, paragraph 9, of the Code of Criminal Procedure, as, otherwise, it would attribute a nullity-curing effect not to the party's choice, which is subject to the relevant objection, but to the judge).

This nullity, pursuant to Article 178, letter c), of the Code of Criminal Procedure, is not absolute but can be remedied if not promptly objected to by the interested party. Crucial is the exclusion of the Review Court's power to supplement: the Court, with rapporteur Dr. E. A. G. and president Dr. G. D. A., established that the Review Court cannot remedy this defect, as this would grant the judge a curing power that instead belongs to the party through an objection. This decision reinforces the need for scrupulous observance of procedures affecting personal liberty, in line with Article 111 of the Constitution.

Conclusions

The Cassation ruling no. 17916 of 2025 is an important precedent regarding personal precautionary measures. It establishes the mandatory nature of the preliminary interrogation under art. 291, paragraph 1-quater, of the Code of Criminal Procedure for offences not expressly excluded, and the need for stringent substantiation for any derogations. The classification of the nullity as "intermediate" and the preclusion of the Review Court's power to supplement are pillars that strengthen defence guarantees, ensuring a fairer trial that adheres to constitutional principles.