Jurisdiction over appeals against controls under Article 41-bis: note on Cass. pen. no. 15673/2025
On April 22, 2025, the First Criminal Section of the Court of Cassation filed judgment no. 15673, annulling without referral the measure by which the Court of Appeal of Messina had decided, in person, the appeal of a detainee subjected to the differentiated regime under Article 41-bis O.P. against the retention of certain letters addressed to him. The Supreme Court recognizes the violation of functional jurisdiction, emphasizing that the appeal should instead have been referred to the Supervisory Court, as established by Article 18-ter, paragraph 5, O.P.
Why the Court annuls without referral
The crucial point concerns the judge "functionally" competent to hear appeals against measures that limit or control the correspondence of detainees under Article 41-bis. According to the Court of Cassation, an error in jurisdiction constitutes a defect that can be raised ex officio in cassation proceedings pursuant to Article 609, paragraph 2, of the Code of Criminal Procedure, with the consequence that no referral is necessary: the challenged measure is entirely overturned.
In the matter of the differentiated prison regime referred to in Article 41-bis of the Penitentiary Law, the violation of the rules identifying the judge functionally competent to decide on the appeal against the measure that has imposed limitations or controls on the detainee's correspondence is ex officio reviewable in cassation proceedings. (Case relating to a measure of retention of correspondence adopted by the Court of Appeal, as the "court proceeding" ex Articles 18-ter, paragraph 3, letter b), of the Penitentiary Law and 279 of the Code of Criminal Procedure, whose appeal had been decided by the same Court of Appeal, and not by the Tribunal, as instead provided for by Article 18-ter, paragraph 5, of the Penitentiary Law).
Comment: The maxim recalls a principle of immediate practical perception. If the judge who adopts the restrictive measure also "retains" the power to decide on the appeal, the guarantee of impartiality inherent in the logic of judicial review of prison administrative powers is violated. The Court of Cassation reiterates that supervisory jurisdiction is not a mere embellishment, but a safeguard of legality and a balance between security needs and the fundamental rights of the detainee.
Regulatory framework and precedents
- Article 41-bis O.P.: introduces a "special" detention regime to combat organized crime, allowing for significant restrictions on external contacts.
- Article 18-ter O.P.: regulates detainee correspondence and identifies, in paragraph 5, the Supervisory Court as the judge for appeals.
- Article 279 c.p.p.: attributes to the Court of Appeal jurisdiction over measures issued during the proceedings, but this jurisdiction does not extend to subsequent appeals.
- Consistent case law: Cass. 12564/2015, 10463/2017, 31046/2020, 45981/2024, which had already affirmed the ex officio reviewability of the lack of functional jurisdiction.
Operational implications for defense counsel and prison administrations
The ruling reinforces some firm points:
- The detainee retains the right to an external review of the authority that imposed the restrictive measure.
- Defense counsel must raise objections – but, thanks to the ruling, can also rely on ex officio review – regarding the lack of jurisdiction, with a potentially demolishing effect on the measure.
- Prison administrations, when transmitting files and appeals, must refer to the Supervisory Court, under penalty of invalidity of subsequent acts.
Conclusions
With judgment no. 15673/2025, the Court of Cassation consolidates an approach aimed at ensuring the separation between the issuing authority and the appeal judge, an essential element for the protection of detainees' rights even in maximum security contexts. The message is clear: respect for functional jurisdiction is not a technicality, but a substantial safeguard of criminal and constitutional legality. Defense counsel and the prison administration are called upon to comply, with the awareness that any deviation from the ordinary scheme will be sanctioned with ex officio annulment by the Court of Cassation.
