Preventive Seizure and Court-Appointed Defense: Commentary on Judgment No. 38890 of 2024

The recent judgment No. 38890 of October 9, 2024, filed on October 23, 2024, offers important clarifications on the procedure for preventive seizure against legal entities. In particular, the Salerno Court of Liberty addressed the issue of appointing a court-appointed defender and the notice of investigation in the context of a precautionary measure involving an entity, such as SEVEN S.R.L.

The Ruling's Headnote

Execution of seizure against an entity - Appointment of court-appointed defender and notice of investigation - Necessity - Exclusion - Reasons. The execution, against an entity, of a preventive seizure order does not need to be preceded, under penalty of nullity, by the appointment of a court-appointed defender and the notification of the notice of investigation, pursuant to Articles 40 and 57 of Legislative Decree of June 8, 2001, No. 231, as it is a "surprise" act for which these formalities, similarly to what is provided for the investigated individual, are only due if the legal representative of the legal entity is present during the act by judicial police and is unrepresented by a chosen defense counsel.

Analysis of the Judgment

The judgment under review highlights a fundamental aspect of the regulations concerning precautionary measures against entities: the non-necessity of a court-appointed defender and the notice of investigation, unless the legal representative of the entity is present at the time of the act. This principle aligns with the logic of avoiding excessive formalities that could hinder the actions of judicial police.

• Preventive seizure is an act that can be executed without prior notice.
• The protection of the entity's rights is guaranteed only if its representative is present and does not have legal counsel of their choice.
• This interpretation is in line with the principles of speed and effectiveness of investigations.

In essence, the Court intended to emphasize that the preventive seizure procedure, while it may appear stringent, is designed to protect the public interest and ensure the proper conduct of investigations, preventing any technical defenses from compromising the action of justice.

Conclusions

Judgment No. 38890 of 2024 represents an important reference for legal practitioners, clarifying the methods for executing preventive seizures against entities. The fact that the appointment of a court-appointed defender is not required in the absence of a present legal representative raises questions about the balance between the effectiveness of investigations and the right to defense, requiring in-depth reflection on how to ensure adequate protections in the context of precautionary measures. It is crucial for companies and their legal counsel to be prepared for these dynamics to best address potential crisis situations related to precautionary measures.