Precautionary Measures: Personal and Real - The Court of Cassation Clarifies Autonomy with Ruling No. 23892/2025

The Italian judicial system, particularly the criminal justice system, is replete with tools aimed at ensuring the effectiveness of justice, protecting the community, and, at the same time, safeguarding fundamental individual rights. Among these, precautionary measures play a primary role, distinguishing between personal and real measures. Their application and revocation are often subjects of debate and jurisprudential interventions aimed at clarifying their boundaries. Ruling No. 23892, filed on June 26, 2025, by the Court of Cassation, Section 2, presided over by P. A. and drafted by C. P., falls precisely within this context, offering a fundamental clarification on the autonomy of real precautionary measures from personal ones, by rejecting the appeal filed by the defendant B. O. against the decision of the Tribunal for the Liberty of Catanzaro.

The Autonomy of Precautionary Measures in Criminal Law

In criminal proceedings, precautionary measures are provisional orders issued by the judge for specific and urgent needs. They are mainly distinguished as:

• Personal precautionary measures: These affect the personal liberty of the suspect or defendant (e.g., pre-trial detention, house arrest, residence obligation). They are imposed to prevent flight, tampering with evidence, or the commission of further offenses.
• Real precautionary measures: These affect the assets of the suspect or defendant (e.g., preventive seizure, conservatory seizure). Their purpose is to prevent the free disposal of an asset from aggravating or prolonging the consequences of the crime, facilitating the commission of other crimes, or to guarantee future confiscation or compensation for damages.

The question that often arises is whether the fate of a personal precautionary measure can automatically influence that of a real precautionary measure. The Court of Cassation, with the ruling under examination, has reaffirmed a cornerstone principle of our legal system.

Regarding precautionary judgments, the revocation of a personal precautionary measure does not have an immediate invalidating effect on any real measures ordered in the same proceeding, as the rights considered in the two types of measures and the procedural needs they aim to satisfy are different.

This principle is of fundamental importance and deserves careful analysis. It clearly states that the revocation of a personal precautionary measure (for example, because the serious indications of guilt or the precautionary needs justifying it have ceased to exist) does not automatically lead to the invalidation, i.e., annulment, of a real precautionary measure (such as a seizure) ordered in the same proceeding. The reason lies in the profound difference between the interests and rights that the two categories of measures are called upon to protect and the procedural aims they pursue. While personal measures primarily protect individual liberty and the need to prevent dangers related to the person, real measures aim to safeguard assets, often in view of future confiscation or to guarantee compensation for damages to victims, as provided for by Articles 321 et seq. of the Code of Criminal Procedure.

Reasons for the Distinction: Objectives and Legal Foundations

The Cassation ruling No. 23892/2025, in rejecting the appeal, confirmed the orientation already expressed in previous rulings (such as the consistent Principle No. 13119 of 2018), emphasizing the functional autonomy of the different types of precautionary measures. This autonomy is not a mere technicality but is based on precise legal and logical foundations:

• Different Purposes: Personal measures (governed by Articles 272 et seq. of the Code of Criminal Procedure) are linked to the defendant's person and their dangerousness or the risk of evidence tampering. Real measures (governed by Articles 316 et seq. of the Code of Criminal Procedure) are linked to the asset and its potential function as an instrument or profit of the crime, or to the need to guarantee future civil obligations arising from the crime.
• Autonomous Prerequisites: The prerequisites for applying a personal measure (serious indications of guilt and specific precautionary needs) are distinct from those for a real measure (fumus commissi delicti and periculum in mora related to the asset). Although the two *fumus* often coincide, the needs justifying the maintenance of the measure may diverge.
• Rights Involved: Personal measures affect the fundamental right to personal liberty (Art. 13 of the Constitution), while real measures affect the right to property and the free disposal of assets (Art. 42 of the Constitution). Although both are constitutionally guaranteed rights, their restriction occurs for different reasons and in different ways.

The fact that the Tribunal for the Liberty of Catanzaro had maintained the real measure, despite a possible different development for a personal measure, was deemed legitimate by the Supreme Court, precisely due to this autonomy. The decision was, in fact, based on the persistence of the needs that justified the seizure, regardless of the assessment of B. O.'s personal liberty.

Practical Implications and Jurisprudential Trends

The practical scope of this ruling is significant. For legal professionals and citizens involved in criminal proceedings, it reiterates that the revocation of a personal precautionary measure should not lead to the assumption that all restrictions on assets are automatically lifted. A preventive seizure, for example, aimed at confiscating assets deemed to be the proceeds of a crime, may remain in place even if the defendant is no longer subject to pre-trial detention, as the reasons for the seizure (the illicit nature of the asset) may persist. This principle is crucial for combating organized crime and economic crimes, where the confiscation of illicitly acquired assets is a primary objective.

The jurisprudence of the Court of Cassation has long consolidated this orientation, as demonstrated by the numerous previous principles cited in the ruling itself (e.g., No. 36198 of 2021, No. 24256 of 2023). The Constitutional Court, in its interventions on normative references (Articles 309, 321 of the Code of Criminal Procedure), has always recognized the specificity of the different forms of precautionary measures, ensuring a balance between the needs of justice and the protection of fundamental rights.

Conclusions: Clarity and Legal Certainty

Ruling No. 23892/2025 of the Court of Cassation represents an important piece in the interpretative mosaic of criminal precautionary measures. It does not introduce a new principle but strengthens and reaffirms the clear distinction between personal and real precautionary measures, based on the diversity of interests protected and the purposes pursued. This clarity is essential for legal certainty and for the correct application of procedural rules. Lawyers, defendants, and victims must be aware that the outcome of a personal precautionary measure does not automatically determine that of a real precautionary measure. Each measure, in fact, lives its own life, anchored to its own prerequisites and purposes, thus ensuring a fairer and more functional judicial system.