Commentary on Judgment No. 50320 of 2023: Precautionary Appeals and Judge's Motivation

The recent judgment No. 50320 of November 10, 2023, provides significant insights regarding real precautionary appeals in the criminal field. The Court, presided over by A. C., has established important principles regarding the necessity of adequate motivation by the judge for preliminary investigations, particularly concerning the "periculum in mora." This concept refers to the imminent risk of harm that could arise from a specific action or situation and justifies the adoption of precautionary measures.

The Case Under Review

The preliminary investigations judge had rejected a petition for release from seizure, but the decision was subsequently appealed. However, the Court upheld the legitimacy of the declaration of inadmissibility of the precautionary appeal by the review court. The central issue was whether the motivational defect, that is, the lack of sufficient justification for the "periculum in mora," could be raised for the first time on appeal.

Order rejecting the petition for release from seizure by the preliminary investigations judge lacking motivation on the "periculum in mora" - Failure to raise the motivational defect before the preliminary investigations judge - Raising the issue in the precautionary appeal - Declaration of inadmissibility by the precautionary court - Legitimacy - Reasons. Regarding real precautionary appeals, the declaration of inadmissibility of the precautionary appeal against the order of the preliminary investigations judge rejecting the petition for release from seizure, based on the lack of motivation on the "periculum in mora," is legitimate if the related exception has not been previously raised before the "first instance" judge, since the motivational deficiency renders the genetic provision flawed by relative nullity, which, if not timely raised with the petition for release from seizure, cannot be contested for the first time with the real appeal.

The Role of Motivation

The judgment emphasizes the importance of motivation in the decision of the preliminary investigations judge. According to the New Code of Criminal Procedure, it is essential that decisions are motivated, especially when it comes to precautionary measures, which profoundly affect the rights of the parties involved. The Constitutional Court has already stated that the absence of motivation can lead to the relative nullity of the provision.

  • The judge must adequately motivate the "periculum in mora."
  • The lack of motivation cannot be raised on appeal if not previously contested.
  • Compliance with procedural guarantees is fundamental for the legitimacy of precautionary measures.

Conclusions

In conclusion, judgment No. 50320 of 2023 represents an important milestone in the legal debate concerning precautionary appeals. It reaffirms the obligation for the judge to provide clear and precise motivation regarding the "periculum in mora," highlighting the consequences of a motivational deficiency. Legal practitioners must pay attention to these aspects to ensure that procedural guarantees are always respected and the rights of the parties involved are protected at every stage of the proceedings.

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