The rights of the technical consultant in non-repeatable analyses

I would like to hear your opinion on the rights of a technical consultant in the field of assistance with non-repeatable analyses (specifically, food analyses).

Given that it is clear to me that the analysis laboratory cannot express an opinion on the conformity of the analytical results, I note that the reference institutes are reluctant, if not completely unavailable, to provide collaboration regarding:

• possibility for the CT to be informed, in ways other than physical presence, on the progress of the analyses and their conclusions;

• What are the subject of the CT's reports? Is it possible that they are limited to mere laboratory activity, thus excluding assessments such as sampling methods, transport times, and temperatures?

• take into consideration the existence of challenge tests validated by a third-party body (usually a university institute) and approved by the competent local veterinary authority, so as to adopt, as required by Regulation (EC) 2073/2005, the quantitative analysis method for the detection of listeria, and not the qualitative one.

I would like to receive objective support for the 'complaints' that are often dismissed as unacceptable demands or, conversely, understand that as a technical consultant I have no other right than to always be present and, like a security guard, limit myself to verifying that the laboratory operates in compliance with good practices and the requirements of the testing method adopted.

Many thanks, Paul

The lawyer Dario Dongo, Ph.D. in international food law, answers

Dear Paolo,

The question you raise concerns an area where criminal procedural law intersects with analytical techniques and food safety regulations, with interpretive gray areas that deserve careful analysis.

Regulatory framework

The main regulatory references applicable to the case in point – in criminal proceedings and by analogy, in the absence of specific provisions in Law 689/1981, also in administrative proceedings – are:

• art. 360 cpp — non-repeatable technical investigations ordered by the public prosecutor;

• art. 230 cpp — activities of technical consultants (in the context of the appraisal);

• art. 223 implementing provisions of the Code of Criminal Procedure — sample analysis and guarantees for the interested party.

Criminal procedural law is built around the relationship between non-repeatable technical assessments and the rights of the defense, without, however, explicitly regulating all the operational rights of the party's technical consultant during assessments entrusted to external laboratories. This regulatory gap, however, does not equate to an absence of rights.

Relevant constitutional and procedural principles

The rights of the technical consultant derive from fundamental procedural and constitutional principles:

1. Right of defense (art. 24 of the Constitution) — the Constitutional Court has repeatedly affirmed that the right of defense is 'inviolable at every stage and level of the proceedings' and the CT plays an essential role in the effective exercise of this right. Drastically limiting its operational powers is equivalent to restricting a constitutionally guaranteed right;

2. Principle of adversarial proceedings (Article 111 of the Constitution) — The Constitutional Court, with ruling no. 15/1986, recognized the extension of the right of defense to judicial police investigations, requiring legislators and judges to ensure its effectiveness from the stage preceding formal trial. Adversarial proceedings cannot therefore be reduced to mere physical presence, but must allow for substantial technical control;

3. Equal rights — the CT must be able to exercise control and verification functions similar, in content if not in form, to those of the opposing party's expert or consultant.

Analysis of individual issues

1. Information on the progress and conclusion of the analyses

Your request to be informed about the progress of the analyses and their conclusion is legitimate and is based on the right of defense:

• Article 360, paragraph 1, of the Code of Criminal Procedure provides that the PM shall notify 'without delay'the person under investigation, the injured party, and the defense counsel, of the date, place, and time set for the assignment of the task and for the expert operations. Although the law does not specify communications for subsequent phases, the right to participate must logically extend to all relevant phases of the technical activity;

• In the field of food analysis, some phases may take days or weeks (e.g., microbiological analysis with incubation). It is unreasonable to require the CT's continuous physical presence, but they have the right to be informed of significant stages so they can intervene when necessary;

• Article 360, paragraph 3-bis, of the Code of Criminal Procedure (introduced by Legislative Decree no. 105 of 10 August 2023, converted with amendments into law no. 137 of 9 October 2023) expressly provides that 'the public prosecutor may authorise the person under investigation, the person injured by the crime, the defence lawyers and technical consultants appointed, who request it, to participate remotely upon assignment of the task or upon investigationsThis provision formally recognizes the possibility of participation via remote connection tools, overriding the requirement for physical presence when technically compatible with the operations to be carried out.

The technical consultant can therefore:

• formally request that the laboratory communicate to them via certified email or email (with a timeliness compatible with technical requirements) the salient phases of the analysis;

• require to the public prosecutor – or, by analogy, to the administrative authority that ordered the investigation – authorization to participate remotely, pursuant to Article 360, paragraph 3-bis, of the Code of Criminal Procedure, for the assignment of the assignment and for expert assessments, when physical presence is not essential (e.g., to observe the incubation phases, intermediate readings, and final assessments). This method ensures cross-examination without imposing excessive burdens on either the laboratory or the expert witness;

• In any case, ensure the possibility of participating, in person or remotely, in the crucial phases (e.g. final reading, possible confirmation with alternative methods).

2. Subject of the CT's minutes

La limitation of the technical consultant's observations on 'laboratory activity' only – excluding assessments on sampling, conservation and transport – is unjustified and prejudicial for the right to defense. In fact:

• sampling and sample storage are integral part of the technical assessment. A flawed sampling or a break in the cold chain invalidates any subsequent analytical results, making the analysis technically unreliable;

• Regulation (EU) 2017/625 establishes that sampling must be carried out according to validated and documented procedures. Compliance with these procedures is a legitimate subject of technical verification;

• Article 360, paragraph 3, of the Code of Criminal Procedure provides that the defence lawyers and technical consultants eventually appointed 'They have the right to be present at the assignment of the task, to participate in the investigations and to formulate observations and reservations'. The rule does not limit the object of the observations to the strict analytical phase only, but refers to all the 'operations';

• Article 230, paragraph 2, of the Code of Criminal Procedure, although referring to the expert report, establishes that the technical consultants 'can participate in the expert operations, proposing specific investigations to the expert and formulating observations and reservations, which must be acknowledged in the report'. This principle must be applied by analogy to unrepeatable technical assessments;

• Article 223, paragraph 1, implementing provisions of the Code of Criminal Procedure establishes that 'such persons have the powers provided for in Article 230 of the Code', thus recalling the right of the technical consultant to formulate observations which must be recorded in the minutes;

• Failure to record the technical expert's observations constitutes a violation of the right to defence and adversarial proceedings, with possible consequences on the procedural applicability of the findings.

The technical consultant may therefore formally request, in writing, that all of his technical observations (including those relating to sampling, transportation, and storage) be fully recorded. If the laboratory refuses, he or she may independently draft a report of his or her observations and immediately deliver it to both the laboratory and the judicial or administrative authority that ordered the investigation, requesting that it be included in the case file. If necessary, he or she may formally raise the issue of proper recording with the said authority.

3. Challenge test and choice of quantitative analytical method for Listeria

Regulation (EU) 2024/2895, applicable from 1 July 2026, amends Regulation (EC) No 2073/2005 as follows:

• the limit of 100 cfu/g for Listeria monocytogenes It is confirmed only for products whose microbiological stability is demonstrated through challenge tests and recognized predictive models;

• in the absence of the above evidence, the more restrictive criterion appliesabsence in 25 grams;

• Operators must also define in their HACCP plans intermediate control limits along the shelf life and submit to periodic validation their monitoring plans (Dongo & Biglia, 2025).

Consequently:

• if the company has a challenge test validated by an accredited third party which demonstrates that the product does not promote the growth of L. monocytogenes (or which will not exceed 100 CFU/g during shelf-life), the applicable microbiological criterion is that of 100 CFU/g;

• in this case, the qualitative method (presence/absence in 25 g) it is not appropriate, because it does not allow verification of compliance with the quantitative criterion (≤100 CFU/g). A quantitative method must be used (e.g. ISO 11290-2:2017);

• the choice of the analytical method that is inadequate with respect to the applicable criterion can produce results misleading: a sample may test positive in the qualitative test (presence of L. monocytogenes) but compliant with the quantitative criterion (<100 CFU/g);

• the technical consultant has the right-duty to report the inadequacy of the analytical method with respect to the applicable regulatory framework. This is not an "undue demand," but a legitimate exercise of the technical advisory function.

The CT can therefore:

• to formally present, before  of the start of the analyses, the documentation relating to the challenge test (complete study, validation, possible ASL approval) to the laboratory and, if applicable, to the authority;

• require that, in the presence of a validated challenge test capable of demonstrating compliance with the 100 CFU/g criterion, a quantitative method be used;

• in case of a negative response from the laboratory, ask that the refusal and its reasons be verbalizedSubsequently, the CT may raise the issue before the judge or administrative authority, contesting the inadequacy of the method with respect to the applicable legislation;

• Alternatively, the technical consultant may request that, in addition to the qualitative method requested by the PM, a quantitative method also be performed, in order to have complete technical data that can be used in court.

Conclusions and operational recommendations

The doubts raised concern legitimate requests which are founded on the constitutional principles of the right to defence and adversarial proceedings, as well as on European food legislation.

The role of the technical consultant cannot and must not be reduced to that of a "passive guardian." The technical consultant must be able to:

1. Be informed promptly of the significant phases of the technical assessment, in order to be able to exercise the right to effective participation in all operations in a contradictory manner, even at a distance when authorized by the public prosecutor pursuant to art. 360, paragraph 3-bis, of the Code of Criminal Procedure;

2. Record observations on all relevant technical aspects (sampling, storage, transport, analytical methods), not just on the physical execution of the analyses in the laboratory;

3. Report inadequacy of the analytical method with respect to the applicable regulatory framework, when supported by technical-scientific documentation.

The laboratories' resistance is often driven by established practices, fears of operational slowdowns, or restrictive interpretations of procedural rules. Constitutional principles and procedural law, however, offer solid arguments to support the expert's requests.

Available for further information on specific aspects, kind regards

Dario

Image by Michal Jarmoluk from Pixabay 

Bibliography

• Constitutional Court. (1986). Sentence no. 15 of 10 February 1986. Official Journal of the Italian Republic, no. 80, 1986. https://www.cortecostituzionale.it/stampa-pdf-pronuncia/1986/15

• Presidential Decree No. 447 of September 22, 1988. Approval of the Code of Criminal Procedure. Normattiva (last updated on March 11, 2026). https://www.normattiva.it/uri-res/N2Ls?urn:nir:stato:decreto.del.presidente.della.repubblica:1988-09-22;447

• Legislative Decree No. 105 of August 10, 2023, converted with amendments by Law No. 137 of October 9, 2023. Urgent provisions on criminal proceedings, civil proceedings, and the protection of personal data. Normattiva (last updated on October 10, 2023). https://www.normattiva.it/uri-res/N2Ls?urn:nir:stato:decreto.legge:2023-08-10;105

• Dongo, D.; Biglia, C. (2025, November 24). Listeria monocytogenes, the new EU rules. FT (Food Times)https://www.foodtimes.eu/it/sicurezza-alimentare/listeria-monocytogenes-nuovo-regolamento-ue/

• Law No. 689 of November 24, 1981. Amendments to the Criminal Justice System. Normattiva (last updated on December 31, 2025). https://www.normattiva.it/uri-res/N2Ls?urn:nir:stato:legge:1981-11-24;689