With multiple suspects preventive interrogation only to those who have no obstacles

Clarifications by the Supreme Court on the application of one of the novelties introduced just under a year ago by the Nordio law, the necessity of the preventive interrogation before the application of a precautionary measure. However, this obligation is not absolute if there are both objective reasons (danger of absconding, evidential pollution) and objective reasons (identification of a catalogue of serious offences).

According to the Court's judgment No. 27080 of the Sixth Section, the gip, in detection proceedings, does not have to carry out the preventive interrogation, proceeding, instead, a posthumous guarantee interrogation only against the suspect in respect of whom it considers that there exist impeding precautionary requirements or the circumstantial gravity for a hostile offence. The possible presence of derogatory grounds for co-defendants, even if they are seriously suspected of the same offence or of connected or, in any event, related offences, is not relevant.

In addition, the ruling states that the omission of the preventive interrogation, in cases where it is prescribed, constitutes an intermediate nullity that may be raised before the Court of Re-examination or by the latter ex officio, even if it has not been previously objected to by the interested party, during the posthumous interrogation of guarantee, but not beyond. The failure to carry out the preventive interrogation thus constitutes a nullity that differs from the nullity of the failure to carry out the guarantee interrogation, the omission of which invalidates the effectiveness of the order and which, according to case law, cannot even be deduced at the review stage.

As regards the connection or, in any event, the connection between offences, 'it must be emphasised that the rule of prior questioning is aimed at protecting the individual suspect, who cannot be prejudiced by the position of other suspects who have to answer for more serious offences or in respect of whom there are specifically identifiable needs that require surprise intervention'.

Consideration, however, that does not necessarily drag with it the obligation for the judge to proceed to a separation of the positions: the procedure remains unique, but what is differentiated is the respectiveprecautionary regime. Moreover, the Court of Cassation points out that, even in the case of a unitary request, nothing precludes the judge from issuing autonomous precautionary orders, "it being understood that nothing prevents that in the presence of compelling needs in respect of certain suspects, virtuous practices may be used in order to avoid that the prior interrogation of a suspect may compromise the needs of immediate protection that may be identified in respect of another suspect".