Omission of notice to the Public Prosecutor in review proceedings: the Court of Cassation clarifies with ruling no. 15503/2025

The Italian criminal legal system places great importance on procedural guarantees during the pre-trial detention phase. The Court of Cassation, with ruling no. 15503 of March 20, 2025 (filed April 18, 2025), offers a new interpretative element, addressing the failure to notify the competent Public Prosecutor of the hearing in the review proceedings. The decision, which annulled without referral the order of the Palermo Review Court, revolves around articles 178, paragraph 1, letter b), 309, and 300 of the Code of Criminal Procedure (c.p.p.) and requires reflection for lawyers and legal professionals.

The procedural case

The case originated from a trial where, following the reform of the acquittal judgment of the first instance pursuant to art. 300, paragraph 5, c.p.p., the Attorney General had requested the application of a pre-trial detention measure. In the review phase, however, the notice of the hearing was served exclusively on this Attorney General, and not also on the Public Prosecutor of the District Anti-Mafia Directorate, who was involved before the same Court. Hence, the appeal to the Court of Cassation based on the violation of the adversarial principle between the public parties.

The legal principle affirmed

Failure to notify the Public Prosecutor involved in the appellate court of the hearing date – Consequences – General nullity with intermediate regime, deductible by appeal to the Court of Cassation – Existence – Notification to a different prosecuting office that requested the application of the measure – Relevance – Exclusion – Case.

The failure to notify the Public Prosecutor involved in the same district court of the hearing date, pursuant to art. 309, paragraph 8, of the Code of Criminal Procedure, constitutes a general nullity with an intermediate regime, under art. 178, paragraph 1, letter b), of the Code of Criminal Procedure, deductible by appeal to the Court of Cassation, without it being considered substituted by the notification to the different prosecuting office that requested the application of the measure. (In this case... not also to the Public Prosecutor of the District Anti-Mafia Directorate).

Comment: the Court reiterates that the adversarial principle between public parties is essential. The legislator, with art. 309, paragraph 8, obliges the review court to inform the Public Prosecutor "involved" at the seat of the appeal. If the notification is addressed to a different office – even if involved in the pre-trial detention phase – the defense guarantee is compressed, and a "general nullity with an intermediate regime" (art. 178) is triggered. This allows the defect to be raised before the Court of Cassation, avoiding unnecessary procedural regressions and preserving the reasonable duration of the proceedings.

Practical implications for the defense

• Timeliness of objections: the nullity under art. 178 can be raised for the first time before the Court of Cassation; however, immediately pointing out the lack of adversarial proceedings allows for the acceleration of the annulment of the order.
• Verification of notifications: lawyers must request copies of the hearing notices to ascertain that they have been received by all parties indicated in art. 309, para. 8.
• Role of the District Public Prosecutor: when the investigation falls under anti-mafia jurisdiction, the Public Prosecutor of the District Directorate retains authority in the review phase, even if a different prosecuting office initiated the measure.
• Pre-trial detention strategy: the decision offers a powerful tool to challenge restrictions on personal liberty based on incompletely notified procedures.

Coordination with previous case law

The Court implicitly refers to the United Sections rulings no. 31011/2009 and no. 44060/2024, which had already classified certain compressions of the adversarial principle in review hearings as nullities with an intermediate regime. The 2025 ruling consolidates this trend, differentiating itself from some decisions in 2014 (rv. 260874) that had recognized forms of "implicit validation" when the different Public Prosecutor's office had nevertheless been part of the proceedings. Now, the rule is clear: notification must be made to *all* Public Prosecutors involved under art. 309.

Conclusions

Ruling no. 15503/2025 represents an important safeguard for the adversarial principle in the pre-trial detention phase, averting the risk that decisions limiting personal freedom are adopted without the full participation of the competent Public Prosecutor. For defense lawyers, meticulous monitoring of notifications becomes crucial; for review judges, a reminder to scrupulously observe the legal provisions. The message from the Court of Cassation is clear: guarantees are not mere formalism, but the very substance of a fair trial.