Commentary on Judgment No. 15637 of 2024: Preventive Seizure and the Principle of Proportionality

Judgment No. 15637 of March 13, 2024, filed on April 16, 2024, offers important insights into precautionary measures, particularly regarding preventive seizure aimed at obstruction. It addresses the delicate balance between the demands of justice and the safeguarding of individual rights, highlighting the crucial role of the principle of proportionality.

The Principle of Proportionality in Preventive Seizure

The Court clarified that the principle of proportionality must be applied not only in the phase of adopting precautionary measures but also during their execution. In particular, it ruled on the eviction order issued by the public prosecutor, establishing that it is not the role of the precautionary judge to re-evaluate, in the absence of a party's initiative, the existence of "periculum in mora" (danger in delay).

• Preventive Seizure for Obstruction: A measure adopted to prevent the commission of crimes or to avoid the danger of an aggravated situation.
• Principle of Proportionality: The precautionary measure must be adequate and necessary with respect to the objective to be achieved.
• Role of the Judge: Limited in re-evaluating the need for precautionary measures if not prompted by the parties.

Judgment's Headnote and Practical Implications

APPLICABILITY - Execution of preventive seizure for obstruction - Eviction order by the public prosecutor - Principle of proportionality - Applicability - Conditions - Power of ex officio re-evaluation of precautionary needs - Exclusion - Reasons. In the context of so-called preventive seizure for obstruction, the principle of proportionality, also applicable in the execution phase of the restraint through the eviction order issued by the public prosecutor, does not entail, in the absence of a party's initiative, the re-evaluation, by the precautionary judge, of the existence of the "periculum in mora" requirement, since, if this were permitted, it would lead to an undue encroachment on the prerogatives of the prosecuting authority, responsible for the execution of the measure.

This headnote highlights the importance of maintaining a balance between the prerogatives of the prosecuting authority and the role of the precautionary judge, preventing unjustified interference. The Court, referencing the New Code of Criminal Procedure, emphasized the need to respect the conditions for the applicability of preventive seizure, preventing the judge from substituting the public prosecutor in assessing the need for precautionary measures.

Conclusions

Judgment No. 15637 of 2024 represents an important milestone in Italian jurisprudence concerning preventive seizure. It underscores the necessity for a clear delimitation of powers among the various figures involved in criminal proceedings, thereby ensuring greater protection of the rights of the individuals involved. The Court's interpretation offers significant insights for legal practice, reiterating the importance of a proportionate approach that respects the different functions within the legal system.