Commentary on Judgment No. 39179 of 2023: Evidential Seizure and Conditional Return

The recent judgment No. 39179 of June 13, 2023, filed on September 27, 2023, offers important food for thought on the mechanisms of evidential seizure and the return of assets subjected to it. The Court annulled with referral the order of the Preliminary Investigations Judge (GIP) of the Court of Biella, emphasizing crucial aspects concerning the conditions that can be imposed at the time of return.

The Legal Context of the Judgment

The core of the issue lies in Article 85 of the implementing provisions of the Code of Criminal Procedure, which establishes that the return of assets subjected to evidential seizure can only occur under conditions consistent with the nature and content of such seizure. The Court clarified that the conditions must be oriented towards pursuing the same objectives as the evidential seizure, avoiding confusion with preventive precautionary measures.

Art. 85 implementing provisions of the Code of Criminal Procedure - Return conditioned by prescriptions - Asset subjected to evidential seizure - Purpose of prescriptions - Purpose of seizure - Identity - Case law. The prescriptions to which the return of items subjected to evidential seizure may be conditioned, pursuant to art. 85 implementing provisions of the Code of Criminal Procedure, must be functional to the nature and content of the specific seizure to which they pertain and logically oriented towards achieving the same objectives. (Case law concerning evidential seizure, in which the Court censured the order applying the real precautionary measure as the prescribed conditions, referring to the current and concrete "periculum" arising from the use of the asset, if not secured, served the different purposes of preventive seizure).

Implications of the Judgment

The judgment under review highlighted errors in the GIP's assessment, which applied conditions that did not reflect the objectives of evidential seizure. This leads to important reflections on the need for clarity and consistency in the application of precautionary measures, so as to avoid overlaps between evidential seizure and preventive seizure.

• Need to clearly define the objectives of evidential seizure.
• Importance of avoiding conditions that refer to dangers not pertinent to the seizure itself.
• Clarity in orders to ensure respect for the rights of the parties involved.

Conclusions

Judgment No. 39179 of 2023 represents an important guide for the correct application of provisions relating to evidential seizure. It underscores the need for careful evaluation of the imposed conditions, so that they are always functional to the objectives of the seizure itself. Legal practitioners should draw inspiration from this ruling to ensure that precautionary measures are applied fairly and justly, avoiding possible conflicts between different types of seizure.