Preventive Seizure and Defense Rights: Cassation Ruling No. 26620/2025

In the complex landscape of criminal procedural law, precautionary measures play a crucial role, balancing the need to protect the interests of justice with the fundamental rights of the individual. A recent and significant ruling by the Court of Cassation, Ruling No. 26620 of 16/04/2025 (filed on 21/07/2025), has provided essential clarification regarding the Public Prosecutor's obligation to transmit defense briefs already filed, clearly distinguishing between personal and real precautionary measures. This decision, which declared inadmissible the appeal by N. M. P. C. S.r.l. against an order from the Milan Court of Liberty, deserves careful analysis to understand its practical implications and underlying principles.

The Cassation's Point: Art. 291 c.p.p. and Real Precautionary Measures

The central issue addressed by the Supreme Court concerned the interpretation of Article 291 of the Code of Criminal Procedure. This rule requires the Public Prosecutor to transmit defense briefs already filed to the judge in case of a request for the application of a personal precautionary measure. The question was whether this obligation could be extended, by analogy, to real precautionary measures, such as preventive seizure. The Cassation provided an unequivocal answer, denying such an extension.

The provisions of Article 291 of the Code of Criminal Procedure, which require the public prosecutor, in the case of a request for a personal precautionary measure, to transmit defense briefs already filed to the judge, are not extendable to real precautionary measures, due to literal and systematic constraints.

This maxim is illuminating. The Court clarified that legal interpretation must strictly adhere to the "literal meaning" and "systematic context" of the rule. Let's see why:

• Literal Meaning: Article 291 c.p.p. explicitly refers to "personal precautionary measures," with no mention of real measures. An analogical extension would be contrary to the precise wording of the rule.
• Systematic Context: The Code of Criminal Procedure clearly distinguishes between personal measures (which affect liberty) and real measures (which affect assets), providing distinct procedural regimes. Article 291 c.p.p. is placed within the context of rules relating to personal measures, safeguarding individual liberty, with a different balance compared to real measures.

The Court therefore reiterated that each rule must be read within its context and according to its specific wording, avoiding analogical applications where the legislator has chosen to differentiate.

Implications for Defense in Preventive Seizure

The Cassation's decision clarifies that the Public Prosecutor is not obliged to attach defense briefs to a request for preventive seizure. This does not mean an infringement of the right to defense, but rather a redefinition of its timing. The defense will still have the full opportunity to present its arguments and briefs during the review or appeal stages, moments when the adversarial principle is fully guaranteed (Art. 324 c.p.p.).

For lawyers, this ruling reinforces the need for a proactive defense strategy, focused on the timely challenge of the seizure order and on articulating defenses at that stage, making the best use of available procedural tools.

Conclusions: A Consolidated Orientation

Ruling No. 26620/2025 of the Court of Cassation consolidates a rigorous interpretative orientation, reaffirming the specificity of procedural rules and the distinction between different types of precautionary measures. For legal professionals and citizens, it is essential to thoroughly understand these dynamics to fully and promptly exercise the right to defense. Our law firm is available to provide qualified assistance in matters of criminal law and precautionary measures.