Commentary on Judgment No. 15141 of 2024: Necessary Referral and the Prohibition of Bis in Idem

Judgment No. 15141 of March 26, 2024 provides significant insights into the correct application of the code of criminal procedure, particularly regarding the dynamics of referral to the first instance judge. In this ruling, the Court addressed the issue of the incorrect assessment of the identity of the fact by the appellate judge, establishing that such an error prevents the denial of a degree of merit to the defendant. Let us therefore examine in more detail the implications of this decision.

The Legal Context of the Judgment

The Court highlighted how Article 522 of the code of criminal procedure provides that, in cases where the appellate judge recognizes the existence of a repeated offense in violation of the prohibition of bis in idem, the appealed judgment must be annulled with a referral to the first instance judge. This principle is fundamental to ensuring the respect of the rights of the defendant, who cannot be deprived of a degree of merit that has not taken place.

Analysis of the Ruling's Maxim

Incorrect assessment of the identity of the fact - Appellate judge annulling the judgment pursuant to Article 522 of the code of criminal procedure - Necessary referral to the first instance judge - Reasons - Case. The appellate judge who, when ruling following the return of documents to the public prosecutor pursuant to Article 521 of the code of criminal procedure, believes that the criminal action, in violation of the procedural prohibition of "bis in idem," has been exercised again for the same fact, is required to order the annulment of the contested judgment pursuant to Article 522 of the code of criminal procedure, with referral to the first instance judge, otherwise depriving the defendant of a degree of merit that has never taken place. (Case in which the Court annulled without referral the decision of the appellate judge who, instead of annulling the contested ruling, with referral to the first instance judge, had declared that no proceedings should be taken, believing that the public prosecutor had reiterated the original charge, for which the order of return was pronounced in accordance with Article 521 of the code of criminal procedure).

This maxim emphasizes the importance of a correct interpretation of the relationship between accusation and judgment. Indeed, the appellate judge is obliged to carefully examine the conditions under which the criminal action was exercised, to avoid repeating situations that could harm the rights of the defendant.

Conclusions

In conclusion, Judgment No. 15141 of 2024 represents an important step forward in the protection of the rights of defendants. It underscores how the respect for fundamental principles of due process and the prohibition of bis in idem is essential to guarantee a fair trial. Lawyers and legal practitioners must therefore pay particular attention to these aspects, ensuring that every stage of the criminal proceedings is conducted in compliance with current regulations, thus guaranteeing the full protection of the rights of the parties involved.

Bianucci Law Firm