Analysis of Judgment No. 38299 of 2023: Risk of Repetition and Precautionary Measures

Judgment No. 38299 of June 13, 2023, filed on September 19, 2023, represents a significant step forward in understanding precautionary measures and their correct legal framework. In particular, the Court clarified the methods by which the risk of repetition of criminal acts can be assessed, even in the absence of recent conduct by the defendant. This article will explore the details of this judgment, highlighting the main aspects and their impact on Italian jurisprudence.

Legal Context and Case Facts

The central issue of the judgment concerns the interpretation of Article 274, paragraph 1, letter c) of the Code of Criminal Procedure, which establishes the conditions for the adoption of personal precautionary measures. Specifically, the Court had to examine whether the risk of repetition of criminal conduct could be inferred solely from the recent actuality of such conduct.

• Personal precautionary measures and their necessity.
• Actuality and concreteness of precautionary needs.
• Methods for assessing the contested conduct.

The Legal Principle Affirmed

Risk of repetition of criminal acts - Actuality of contested conduct - Necessity - Exclusion - Case law. In the context of coercive measures, the actuality and concreteness of precautionary needs must not be conceptually confused with the actuality and concreteness of criminal conduct, so that the risk of repetition referred to in Article 274, paragraph 1, letter c) of the Code of Criminal Procedure can be legitimately inferred from the modalities of the contested conduct, even if it dates back in time. (In application of the principle, the Court declared the defendant's appeal ground inadmissible, which had alleged the non-existence of the requirement of actuality of precautionary needs, as no further recent contacts had emerged with individuals willing to act as nominees for the companies involved in the offenses).

The Court has therefore established that precautionary needs can be considered current even in the absence of recent illicit behavior, provided there are sufficient elements to believe that the defendant may repeat the criminal conduct. This means that the judge must analyze not only the actuality of the conduct but also the modalities with which it occurred in the past.

Implications and Conclusions

Judgment No. 38299 of 2023 offers a clear view on how the requirements of actuality and necessity in precautionary measures should be interpreted. It emphasizes that the risk of repetition does not necessarily have to be linked to recent conduct but can be inferred from past behavior. This approach broadens the possibilities for judges to adopt precautionary measures in the presence of significant indications, even if the conduct dates back to a previous period.

In conclusion, the Court's decision represents a fundamental reference point for all legal professionals, as it clarifies the balance between the protection of society and the rights of the accused individual. Jurisprudence continues to evolve, and the judgment in question offers important insights for understanding the dynamics of precautionary measures in the Italian criminal context.