Commentary on Judgment No. 13817 of 2023: Evidential Seizure and Formal Defects

Judgment No. 13817 of February 28, 2023, issued by the Court of Cassation, offers important insights into evidential seizure and its regulatory framework. This ruling falls within the context of real precautionary measures, impacting not only the rights of the defendant but also the proper management of legal procedures. In this article, we will analyze the key takeaway of the judgment and its implications in Italian criminal law.

The Key Takeaway of the Judgment

Evidential seizure - Annulment for formal defects - Seizure pursuant to art. 240-bis of the Criminal Code - "Ne bis in idem" - Procedural preclusion - Conditions. In matters of real precautionary measures, the preclusion of a precautionary judgment does not apply where, following the annulment of an order for the evidential seizure of a sum of money due to formal defects (in this case, for lack of notification of the review decision), a new seizure is ordered pursuant to art. 240-bis of the Criminal Code, based on the same elements. (In its reasoning, the Court clarified that a precautionary judgment is not formed even when, upon annulment for a formal defect of the first order, the judge has affirmed the absence of the "fumus" of the crime).

Formal Defects and Their Relevance

The Court confirmed that the annulment of an evidential seizure order due to formal defects, as in this specific case for lack of notification, does not preclude a new seizure. This principle is based on the interpretation of Article 240-bis of the Criminal Code, which allows for the reinstatement of precautionary measures even after an annulment, provided that the supporting elements remain the same.

The implications of this decision are significant because they break with the logic of "ne bis in idem," which normally prevents the repetition of a legal action that has already been judged. In this context, the judge must assess that the new seizure is not the result of a new evaluation of the existence of the "fumus" of the crime, but is based exclusively on the absence of correct procedures in the first order.

Conclusions

In conclusion, judgment No. 13817 of 2023 represents an important clarification regarding evidential seizure and formal defects. It underscores the importance of proper notification and adequate procedures in the context of precautionary measures. Legal practitioners must pay attention to these aspects to ensure respect for defendants' rights and the legitimacy of legal actions undertaken. The judgment invites reflection on the delicacy and complexity of precautionary measures within the Italian legal system, highlighting the need for a balance between the protection of the law and individual rights.