Pre-trial seizure and confiscation: analysis of Judgment no. 45268 of 2024

Judgment no. 45268 of 18 September 2024, issued by the Court of Cassation, offers an important reflection on real precautionary measures, particularly regarding pre-trial seizure aimed at confiscation under Article 240-bis of the Criminal Code. This legal provision plays a crucial role in combating economic crime, but it must be applied with rigor and adequate justification.

The principle of "periculum in mora"

According to the ruling's maxim, the pre-trial seizure order must contain a clear and concise justification regarding the existence of "periculum in mora". This legal terminology refers to the need to justify the seizure based on the risk that assets may be dispersed or compromised. The Court clarifies that mere ownership of assets less than those subject to confiscation is not sufficient to declare the existence of such a danger.

Pre-trial seizure aimed at confiscation under Art. 240-bis of the Criminal Code - Justification of the existence of "periculum in mora" - Necessity - Insufficiency of assets - Sufficiency - Exclusion. The pre-trial seizure order for extended confiscation under Art. 240-bis of the Criminal Code must contain a concise justification of "periculum in mora", which cannot be considered to exist based solely on the ownership, by the subject to whom the measure is addressed, of assets less than those subject to confiscation, not even when the object of the restraint is a fungible asset such as money.

Implications of the judgment

The judgment in question not only reiterates the need for adequate justification but also introduces an element of guarantee for the recipients of precautionary measures. In fact, the Court of Cassation has established that the insufficiency of assets cannot be used as the sole proof of "periculum in mora", thus excluding that the mere ownership of assets not sufficient to cover the amount of the confiscation can justify a seizure order.

• Importance of justification in the seizure order.
• Exclusion of mere ownership as justification for "periculum in mora".
• Implications for the protection of the rights of the subjects involved.

Conclusions

Judgment no. 45268 of 2024 represents a significant step towards greater protection of the rights of subjects subjected to precautionary measures. The obligation for clear and detailed justification regarding "periculum in mora" not only strengthens the principle of legality but also contributes to ensuring a balance between the need for justice and the protection of individual rights. It is essential that legal professionals pay attention to these indications to ensure a correct and balanced application of precautionary measures within our legal system.