Preventive detention: the illegitimate omitted acquisition of a defense document by the Court of Review determines nullity according to the Supreme Court of Cassazione

The Italian Supreme Court faces the problem of the consequences that may derive from the refusal of the Court of Review to acquire a defense brief.

According to the Ermelinis, the unjustified rejection of the request for the acquisition of a defense brief, presented pursuant to art. 121 c.p.p. or its omitted evaluation determine the general nullity provided by the art. 178, paragraph 1, lett. c), same code, as they prevent the defendant from concretely intervening in the reconstructive and evaluation process carried out by the judge in relation to the crime, involving the infringement of the defendant's rights of intervention or defensive assistance, as well as constituting a violation of the rules governing the motivation of judicial decisions.

The First Chamber of the Supreme Court in the body of the decision referred to the principle according to which said production was to be deemed certainly admissible, also in compliance with the jurisprudence of the United Chambers (n. 18339 of 31/3/2004 , Donelli, CED Cass. 227357), who had stated that, "in the proceeding following the appeal brought by the Public Prosecutor against the order rejecting the request for a personal precautionary measure, the production of documentation relating to "new" evidence is legitimate, pre-existing or supervening, provided that, within the confines marked by the "devolutum", those produced by the Public Prosecutor concern the same fact disputed with the original precautionary request and with regard to them the contradictory of the parties is ensured in the chamber of commerce proceeding, also through the granting of a suitable defense term, and those produced by the suspect, also acquired as a result of defensive investigations, are suitable for countering the reasons i of the Public Prosecutor's burden or to demonstrate that the conditions and prerequisites for the applicability of the requested precautionary measure do not exist".