Pre-trial detention and deadlines: Cassation n. 15050/2025 clarifies Article 292 of the Code of Criminal Procedure

Is an order for pre-trial detention null and void if the judge fails to indicate the expiry date of the measure in relation to the investigations to be carried out? The Court of Cassation, Second Criminal Section, with judgment no. 15050 of 18 March 2025 (filed 15 April 2025), addresses this issue and, by rejecting the appeal of the suspect M. S., establishes a principle destined to impact the practice in courtrooms.

The relevant regulatory framework

The rules governing personal pre-trial measures are contained in Articles 274 et seq. of the Code of Criminal Procedure. Article 292, in particular, requires the judge to provide reasons for the order and to indicate "the expiry date of the measure in relation to the investigations to be carried out" when the precautionary measure is based on the risk of evidence tampering. The amendment introduced by Law 114/2024 has made the requirements more stringent, adding the possibility of a declaration of nullity pursuant to Article 292, paragraph 3-bis, in case of essential omissions, alongside the strict reasoning.

The ruling of the Court of Cassation

An order applying pre-trial detention, issued due to the presumed existence of the risk of evidence tampering in the absence of the prior conduct of the anticipatory interrogation referred to in Article 291, paragraph 1-quater, of the Code of Criminal Procedure, which does not contain the indication of the expiry date of the measure in relation to the investigations to be carried out, is not affected by nullity pursuant to Article 292, paragraph 3-bis, of the Code of Criminal Procedure, if another precautionary need concurs, confirmed on review, which makes the indication of such a term superfluous.

The Court interprets the ratio of Article 292: the deadline serves to limit the operability of the measure when the only risk is evidence tampering. However, if the judge also identifies a different ground (e.g., risk of flight or reoffending), the indication becomes superfluous, as the measure would still be justified. In this way, the Court of Cassation adopts a criterion of procedural economy, avoiding purely formal annulments.

Key points of the decision

• Plurality of precautionary needs: the coexistence of multiple needs justifies the omission of the deadline relating solely to the need to prevent evidence tampering.
• Confirmation on review: the assessment by the Court of Liberty (Brescia, 28/11/2024) is fundamental, as it reiterated the existence of the second precautionary need when reviewing the measure.
• Non-essential nature of the deadline: the requirement becomes "non-essential" if it is not the sole parameter of legitimacy.

The judgment aligns with previous rulings from 2021 (Cass., no. 9902/2021) and 2025 (nos. 12034 and 11921), confirming an orientation that prioritizes the substance of guarantees over excessive formalism.

Practical implications for defence and prosecution

For the defence counsel, the strategy must focus on demonstrating the non-existence or insufficiency of the further precautionary needs: only then can the omission of the deadline regain relevance. The Public Prosecutor, for their part, will be required to provide rigorous reasoning for the plurality of grounds, because if these are lacking, the order will remain vulnerable to challenges under Article 292.

Also interesting is the aspect relating to the anticipatory interrogation referred to in Article 291, paragraph 1-quater: the Court holds that the failure to hold it does not invalidate the measure if other needs coexist, thereby reducing another potential ground for nullity.

Conclusions

Decision no. 15050/2025 consolidates the idea that the system of criminal pre-trial measures must balance efficiency and guarantees, preventing purely formal defects from hindering the punitive claim when substantial and multiple needs exist. For legal professionals, a careful reading of the order remains crucial: where the deadline is missing, it will be necessary to verify whether the judge based the measure on multiple grounds, as in that case, nullity will be difficult to obtain.