Preliminary Hearing and Obligation to Transmit: Commentary on Cass. pen. no. 12151/2025

The precautionary order is often the first point of conflict between the personal liberty of the suspect and investigative needs. The recent ruling of the Court of Cassation, Section VI, no. 12151 of March 12, 2025 (filed March 27, 2025), offers an important piece on the role of the preliminary hearing under art. 294 c.p.p. in the review proceedings governed by art. 309 c.p.p. The issue closely concerns criminal lawyers, public prosecutors, and—not least—the suspects themselves, who see in this fulfillment a potential lever to obtain the revocation or attenuation of coercive measures.

The Regulatory Framework

Art. 294 c.p.p. requires that, immediately after the execution of the precautionary measure, the suspect be subjected to a preliminary hearing before the judge who ordered it. The subsequent art. 309, paragraph 5, c.p.p. then establishes that the prosecuting authority must transmit to the Review Court "supervening elements favorable to the suspect." The vexata quaestio was to understand whether the hearing automatically falls among these elements or only in the presence of certain requirements.

The preliminary hearing provided for by art. 294 of the Code of Criminal Procedure must be considered included among the supervening favorable elements, for which art. 309, paragraph 5, of the Code of Criminal Procedure imposes the obligation of transmission by the prosecuting authority to the review court, only when it has an objectively favorable content for the suspect and is not limited to the mere contestation of the charges. (In the reasoning, the Court specified that said value of the act, capable of causing the annulment of the precautionary measure, must be specifically indicated by the party in the appeal to the review court).
Commentary: the Supreme Court, referring to consistent precedents (Cass. 51789/2013; 12896/2019), delimits the scope of the obligation to transmit: it is not enough for the suspect to deny the facts; new and verifiable data must emerge that affect the serious indications of guilt or the precautionary needs. Otherwise, the act remains "neutral" and does not oblige automatic transmission.

Key Aspects of the Decision

Based on the appeal filed by M. D. (defendant A. P.M.), the Review Court of Caltanissetta had not received the preliminary hearing held before the GIP. The Cassation annuls with referral, specifying that:

• the defense must precisely indicate, already in the appeal under art. 309 c.p.p., which parts of the hearing have favorable content;
• the public prosecutor, assessing the "objectively favorable" nature of these statements, is required to transmit them in full to the court;
• in the absence of indications or in the absence of truly new elements, the omission to transmit does not invalidate the review proceedings.

The Court recalls the principle of proportionality also enshrined in art. 5 of the ECHR: any restriction of liberty must be continuously re-evaluated in light of supervening elements. However, an extensive interpretation of the obligation to transmit would risk transforming the review into a duplicate of the hearing, with inevitable delays and dispersion of resources.

Practical Implications for Defense and Office Practices

The ruling reinforces the burden of specific pleading on the defense counsel. It is no longer sufficient to file the minutes: it is necessary to indicate *why* those statements affect the seriousness of the indications of guilt or the precautionary needs (art. 274 c.p.p.). This requires careful preparatory work and a procedural strategy based on:

• documentation of verifiable circumstances (alibis, collaborations, reparatory conduct);
• immediate request for acquisition of exculpatory evidence;
• use of the hearing not as a mere opportunity for denial, but as an occasion to introduce objective elements, including documentary ones.

For public prosecutor's offices, on the other hand, the obligation to carefully select the material to be sent for review is consolidated, avoiding indiscriminate transmissions but, at the same time, preventing the risk of procedural defects if the defense has adequately fulfilled its burden of specification.

Conclusions

Judgment no. 12151/2025 continues along the lines of the United Sections "D. V." (Cass. 250/2000) and subsequent consistent rulings, balancing the need to protect personal liberty with the efficiency of the precautionary proceedings. The message is clear: the preliminary hearing can be a decisive weapon, but only if used proactively and supported by substantial elements. In a procedural system increasingly attentive to the protection of fundamental rights, collaboration between the defense and prosecuting authorities—while respecting their respective roles—becomes the main path to ensure well-founded, timely decisions that comply with constitutional and European principles.