Judgment No. 44941 of 2024: Inspections and Guarantees for Defence Lawyers

The recent judgment No. 44941 of 13 November 2024, issued by the Court of Cassation, offers an important reflection on the guarantees for defence lawyers in relation to inspections and searches of their offices. In particular, the Court reiterated that the guarantees provided for by Article 103 of the Code of Criminal Procedure do not confer an immunity principle on all lawyers, but apply in specific circumstances.

Guarantees under Article 103 of the Code of Criminal Procedure

Article 103 of the Code of Criminal Procedure establishes fundamental guarantees for the legal profession, aimed at protecting the defence function. However, the judgment clarified that these guarantees apply only when it is necessary to protect the object of the defence and provided that the defence lawyer is not himself the subject of an investigation. In this context, the Court ruled out that the public prosecutor needs to obtain judicial authorisation to carry out searches at the office of a lawyer under investigation.

Inspections, searches and seizures at the office of defence lawyers - Guarantees under Article 103 of the Code of Criminal Procedure - Scope of application - Limits - Reasons - Case law. The guarantees provided for by Article 103 of the Code of Criminal Procedure do not introduce an immunity principle for anyone practising the legal profession, applying exclusively in cases where the defence function or the object of the defence must be protected from the person holding the quality of defence lawyer by virtue of a duly conferred mandate and provided that they are not themselves under investigation. (Case where the Court ruled out that the public prosecutor was required to obtain judicial authorisation and obliged to provide prior notice to the Bar Association in order to carry out a search aimed at finding the corpus delicti at the office of a lawyer, investigated for complicity in usury and attempted extortion).

Practical implications of the judgment

This judgment has significant implications for the legal profession, as it clarifies the limits of defence lawyers' immunity and the possibility of intervention by the authorities. The main considerations that emerged are:

• The guarantees are not absolute and do not apply to all lawyers indiscriminately.
• The defence lawyer must be in a non-investigation status to enjoy the protections provided.
• Authorities can proceed with inspections without the need for authorisation, if there are valid reasons.

Conclusions

In conclusion, judgment No. 44941 of 2024 is an important step in defining the rights and responsibilities of defence lawyers in Italy. It underscores the need for a balance between the protection of the defence function and the legitimacy of criminal investigations. It is essential that legal professionals are aware of these limits and the circumstances in which they can invoke the guarantees provided by law.