Cassation Court Ruling No. 15500/2025: Jurisdiction of the Review Court on Precautionary Measures

The Court of Cassation, Sixth Criminal Section, with ruling No. 15500 filed on April 18, 2025, revisits the delicate relationship between territorial jurisdiction and the powers of the review court concerning personal precautionary measures. The case originates from an appeal filed by A. C. against the order by which the Tribunal for Liberty of Salerno had rejected the exception of territorial incompetence raised in relation to a pre-trial detention order. The Supreme Court, confirming the denial, offers insights of great interest to those who work daily in criminal justice.

The Core of the Ruling

According to the judges of legitimacy, the review court can rule on the territorial incompetence of the judge who issued the precautionary measure only if criminal proceedings have not yet been initiated pursuant to art. 405 of the Code of Criminal Procedure. Once the request for indictment or the direct summons decree has been issued, the issue of jurisdiction falls to the merits judge (arts. 22-23 of the Code of Criminal Procedure).

• Art. 12 of the Code of Criminal Procedure: connecting criteria for territorial jurisdiction.
• Art. 16 of the Code of Criminal Procedure: prohibition of conventional derogation from jurisdiction.
• Arts. 22-23 of the Code of Criminal Procedure: regulation of jurisdiction and powers of the judge.
• Art. 27 of the Constitution: presumption of innocence and reservation of law.

The review court, seized with the appeal of a measure imposing a precautionary measure, can review the territorial jurisdiction of the judge who issued the measure itself only if criminal proceedings have not yet been initiated, with any assessment of jurisdiction subsequently being reserved for the merits judge.

The maxim clearly summarizes the principle: the review's control is of an incidental nature and solely functional to the immediate protection of personal liberty. Once the investigative phase is over, the logic of concentrating procedural issues requires that it be the trial judge – endowed with broader investigative powers – who assesses jurisdiction.

Comparison with Previous Case Law

The ruling aligns with consistent case law (Cass. 28161/2014; 16478/2017) and with the dictum of the United Sections No. 19214/2020. The common thread is the distinction between the pre-cognitive phase and the trial phase: as long as the Public Prosecutor has not initiated proceedings, the review remains the first bulwark against any jurisdictional errors affecting personal liberty; thereafter, the need to avoid fragmentation and delays prevails.

For the defense, this means calibrating the exception of incompetence promptly: if proposed beyond the deadline referred to in art. 309 of the Code of Criminal Procedure, it risks being declared inadmissible, unless re-proposed before the Preliminary Hearing Judge or the trial judge. The Public Prosecutor's Office must also consider the connecting criteria (art. 12 of the Code of Criminal Procedure) from the moment of requesting the measure, to avoid acquittals that would weaken the prosecution's case.

Practical Implications for Lawyers and Operators

The 2025 ruling offers some operational indications:

• Strategic Timing: the exception of incompetence must be raised in the memorandum pursuant to art. 309 of the Code of Criminal Procedure or during the hearing before the review court, before the Public Prosecutor initiates proceedings.
• Burden of Motivation: the review court, if it declares incompetence, must indicate the competent judge, avoiding generic rulings that would paralyze the proceedings.
• Multi-level Protection: the principle is linked to Articles 5 and 6 of the ECHR, which require a rapid review of the lawfulness of detention, balanced with the right to a judge established by law.

Conclusions

Ruling No. 15500/2025 strengthens the systematic framework of territorial jurisdiction in precautionary matters, establishing a clear temporal limit for the intervention of the review court. A warning for the defense to act promptly and for the prosecution to carefully select the competent forum, with a view to more efficient criminal justice that respects constitutional guarantees.