Evidential Seizure in Criminal Proceedings
Undergoing an evidential seizure often represents a moment of intense stress and disorientation for anyone involved, in any capacity, in criminal proceedings. Being deprived of movable property, real estate, documents, or electronic devices can have significant repercussions on private and professional life. As an expert criminal lawyer in Milan, Avv. Marco Bianucci fully understands the urgency of comprehending the dynamics of this legal institution and, above all, the available avenues for obtaining the return of what has been seized. This guide aims to provide regulatory clarity and illustrate the correct procedures for protecting one's rights.
The Legislation: Art. 253 c.p.p. and Prerequisites
Evidential seizure is governed by Article 253 of the Code of Criminal Procedure. It is a means of searching for evidence through which the Judicial Authority acquires the corpus delicti and items related to the crime that are necessary for ascertaining the facts. Unlike preventive or conservatory seizure, the purpose here is strictly linked to evidentiary needs: the asset is restricted because it is needed to prove the existence of the crime or related responsibilities. However, the law requires that such a restriction must be motivated and proportionate. It is not uncommon for assets to be seized in excess or not strictly necessary for the investigation, and it is precisely in these situations that technical defense becomes essential for requesting the release of the seized items.
The Paths to Release: Request and Review
To obtain the return of assets, the code provides specific tools. The primary route is opposition to the seizure decree, which can be done through a request for review by the Court of Liberty (Tribunale del Riesame) within 10 days from the date of execution or notification of the order. In this forum, the Court assesses the legitimacy of the seizure, verifying whether the evidentiary needs and the connection to the alleged crime truly exist. Alternatively, or subsequently if the evidentiary needs have ceased, it is possible to submit a request for return directly to the Public Prosecutor or the presiding Judge. If the request is rejected, an appeal can be filed with the Judge for Preliminary Investigations.
The Bianucci Law Firm's Approach to Seizure Release
Avv. Marco Bianucci, thanks to his consolidated experience as an expert criminal lawyer in Milan, approaches cases of evidential seizure with an analytical and prompt strategy. The Bianucci Law Firm's strategy is not limited to the mere formal submission of the request; it begins with an in-depth examination of the seizure decree to identify any formal or motivational defects. Often, in fact, the decree lacks a specific indication as to why that particular asset is indispensable for evidentiary purposes.
Avv. Marco Bianucci's primary objective is to demonstrate, where possible, the absence of a connection between the seized asset and the crime, or the cessation of evidentiary needs (for example, after a document has been copied or a device analyzed). The firm works to minimize the period of asset unavailability, actively engaging with the Judicial Authority and preparing appeals to the Court of Review, legally reasoned and supported by the most recent case law.
Frequently Asked Questions
How long can an evidential seizure last?
There is no fixed statutory deadline for the duration of an evidential seizure, as it is linked to the persistence of evidentiary needs. However, the restriction cannot be maintained indefinitely. When evidentiary needs cease to exist (e.g., after an expert examination), the asset must be returned. The defense lawyer has the duty to expedite this return if the Judicial Authority does not act ex officio.
What happens if computers or smartphones are seized?
The seizure of electronic devices is very common. Case law has established that, once a forensic copy of the data necessary for the investigation has been made (the so-called bit-to-bit copy), the physical medium (hardware) must be returned to the rightful owner, unless the device itself constitutes the corpus delicti (e.g., stolen goods). Immediate return can be requested after irreversible technical operations.
Can I sell an asset under evidential seizure?
No, an asset under evidential seizure is removed from the owner's possession, who cannot use, sell, or destroy it. Any disposition of a seized asset is null and void and may result in further criminal consequences for violation of seals or removal of items under seizure.
Who pays for the custody of seized assets?
Custody costs are advanced by the State. However, in the event of a final conviction, the costs of custody and preservation of seized assets are borne by the convicted person. Obtaining a swift release of seized items is therefore also important to avoid the accumulation of potential future costs.
Request a Case Evaluation
If your assets have been seized and you wish to assess the possibility of their recovery, it is crucial to act quickly, respecting the strict deadlines for any review. Avv. Marco Bianucci is available at the Milan office, located at Via Alberto da Giussano 26, to analyze the seizure decree and plan the most appropriate defense strategy. Contact Avv. Marco Bianucci to schedule an initial consultation and receive professional advice on your situation.