Real Precautionary Measures: The Court of Cassation on Duration and Constitutionality (Judgment No. 20658/2025)

In the complex landscape of criminal law, precautionary measures represent a fundamental tool to ensure the objectives of legal proceedings. However, their application often raises delicate issues, particularly regarding their duration and the limits imposed on fundamental rights. In this context, the Court of Cassation, with Judgment No. 20658 of 2025, has provided essential clarification on the duration of real precautionary measures, rejecting an exception of constitutional legitimacy that aimed to equate them with personal measures. A ruling that deserves careful analysis to understand its profound implications.

The Context of Precautionary Measures: Personal vs. Real

Before delving into the merits of the Supreme Court's decision, it is useful to distinguish between the two main categories of precautionary measures provided for by our legal system: personal precautionary measures and real precautionary measures.

• Personal precautionary measures (such as pre-trial detention or house arrest) directly affect the personal liberty of the defendant and are subject to strict time limits, precisely to safeguard the fundamental right to liberty and the presumption of innocence.
• Real precautionary measures (such as preventive or conservatory seizure) instead concern material or immaterial assets, and are aimed at preventing the free availability of an asset from aggravating or prolonging the consequences of a crime, facilitating the commission of other crimes, or guaranteeing the execution of a future confiscation or compensation for damages.

The issue submitted to the Court of Cassation concerned precisely the alleged disparity of treatment between these two types of measures, in the absence of predefined duration limits for real measures, raising doubts about their compliance with constitutional principles.

The Court of Cassation's Ruling: Analysis of the Headnote

Judgment No. 20658 of 2025, issued by the Criminal Court of Cassation (President D. N. V., Rapporteur M. E.), examined the question of constitutional legitimacy raised in relation to Articles 321, paragraph 2, of the Code of Criminal Procedure, 322-ter of the Criminal Code, and 12-bis of Legislative Decree No. 74 of 2000 (the latter regulating precautionary measures in tax matters). The defendant S. S., represented by the Public Prosecutor E. A., had seen an appeal rejected against an order from the Tribunal for Personal Liberty of Santa Maria Capua Vetere. The Court reiterated a fundamental principle, clearly expressed in the headnote:

The question of constitutional legitimacy of Articles 321, paragraph 2, of the Code of Criminal Procedure, 322-ter of the Criminal Code, and 12-bis of Legislative Decree of March 10, 2000, No. 74, for conflict with Articles 3, 24, 27, 41, and 111 of the Constitution, in the part where they do not provide, for real precautionary measures, the setting of duration limits analogous to those established for personal precautionary measures, is manifestly unfounded, given that the different nature and function of the former justify an autonomous regime, which, not being assimilable to that of the latter, does not result in a disparity of treatment.

This passage is crucial. The Court of Cassation declared