Analysis of Judgment No. 33988 of 2023: The 'Ne Bis In Idem' Principle in Precautionary Measures

The recent judgment No. 33988 of June 16, 2023, filed on August 2, 2023, has generated considerable interest in the Italian legal landscape, particularly concerning real precautionary measures. The Court, presided over by A. C. and with A. C. as rapporteur, addressed the issue of the 'ne bis in idem' principle in relation to the issuance of a new preventive seizure on assets already subject to an annulled order.

Context of the Judgment

The case at hand involves the defendant R. F., who had a preventive seizure order annulled. However, the Court ruled that, in the absence of the reasoning for the annulment order, there is no impediment to issuing a new seizure on the same assets. This clarification is fundamental, as it outlines a clear distinction between the precautionary phase and the merits phase, emphasizing that the precautionary judgment is not subject to the same rules of finality.

The 'Ne Bis In Idem' Principle

'Ne bis in idem' Principle - Annulment of Preventive Seizure - Reasoning Not Yet Filed - Issuance of a New Preventive Seizure on the Same Assets - Admissibility - Reasons. In matters of real precautionary measures, the 'ne bis in idem' principle does not preclude the issuance of a new preventive seizure order on the same assets for which a previously imposed restraint was annulled following an appeal, in cases where the reasoning for the annulment order has not yet been filed. (In its reasoning, the Court specified that, as long as the arguments of the decision annulling the imposition order are not known, there are no preclusions deriving from the so-called 'precautionary res judicata').

The 'ne bis in idem' principle is a cornerstone of criminal law that prohibits being tried twice for the same offense. However, the judgment clarifies that this principle does not apply in the context of precautionary measures, as their purpose is to ensure the effectiveness of criminal proceedings, not to punish the individual. Consequently, the possibility of adopting precautionary measures again on the same assets is justified until the reasoning for the annulment order is made public.

Practical Implications of the Judgment

This judgment has several practical implications for the management of precautionary measures:

• It strengthens the judge's discretion in ordering new precautionary measures.
• It ensures greater flexibility in handling situations where the reasons for annulment are not yet available.
• It could lead to an increase in precautionary interventions during the investigation phase.

In summary, judgment No. 33988 of 2023 offers an important interpretation of the 'ne bis in idem' principle in relation to precautionary measures, promoting greater effectiveness of criminal prosecution without compromising the rights of defendants.

Conclusions

The Court's decision represents a significant step in understanding the dynamics of precautionary measures within the Italian legal system. It highlights the need to balance the effectiveness of justice with the protection of individual rights, emphasizing the precautionary phase as a fundamental tool for safeguarding public order and preventing further crimes. The judgment therefore invites reflection on a crucial issue in contemporary criminal law, paving the way for further jurisprudential developments in this area.