Commentary on Judgment No. 24375 of 2023: Precautionary Measures in Sexual Offenses

The judgment No. 24375 of February 22, 2023, by the Court of Cassation, filed on June 7, 2023, represents an important ruling regarding personal precautionary measures, particularly concerning sexual offenses. The Court, presided by G. Sarno and rapporteur V. Di Nicola, addressed crucial issues related to the evaluation criteria by the judge, providing significant clarification on the application methods of precautionary measures.

The Context of the Judgment

The central issue of the ruling concerns the obligation of the judge to specify the investigative needs in cases of precautionary measures for sexual offenses. The Court established that, in the presence of serious indications of guilt, it is not necessary to justify the existence of specific investigative needs, nor to set a deadline for the investigative activity. This aspect is based on the relative presumption of the existence of precautionary needs, as provided for by Article 275, paragraph 3, of the Code of Criminal Procedure.

CRITERIA - Recognized existence of serious indications of guilt regarding sexual offenses - Obligation of the judge who considers the risk of evidence tampering to indicate the specific and mandatory needs related to the investigations and to set a deadline for them - Exclusion - Reasons. In terms of personal precautionary measures, the judge who assesses the existence of serious indications of guilt regarding sexual offenses is not required to justify the recurrence of specific and mandatory investigative needs concerning the facts for which proceedings are taking place, in relation to situations of concrete and current danger for the acquisition or genuineness of evidence, nor is he obliged to set a date by which to carry out the necessary investigative activity, given the existence of the relative presumption of the existence of precautionary needs established by Article 275, paragraph 3, of the Code of Criminal Procedure. (In the motivation, the Court added that it is the responsibility of the accused to indicate contrary elements that demonstrate the certain non-existence of the need, otherwise allowing an incorrect overlap between precautionary proceedings that follow, "ex positivo iure", different rules).

The Implications of the Judgment

This ruling has significant practical implications for the judicial system. In particular, it clarifies that the burden of proof regarding the non-existence of precautionary needs may fall on the accused, who must provide elements demonstrating the absence of a concrete danger for the acquisition of evidence. This breaks with a practice in which a more detailed justification was required from the judge, simplifying the process and speeding up response times in cases of sexual offenses.

  • Clarity on the evaluation criteria for precautionary measures.
  • Reduction of the motivational burden for the judge.
  • Greater accountability of the accused in contesting precautionary needs.

Conclusions

In conclusion, judgment No. 24375 of 2023 represents an important step in defining the application methods of precautionary measures concerning sexual offenses. With its decision, the Court of Cassation not only clarifies the responsibilities of the judge but also offers a new perspective on the balance between investigative needs and the rights of the accused. This could have a significant impact on the management of criminal proceedings in the future, especially in such a delicate context as that of sexual offenses.

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