Judge's Incompatibility in Asset Prevention Measures: Comment on Judgment no. 44504 of 2024

Judgment no. 44504 of 2024, issued by the Court of Appeal of Florence, has focused on a crucial issue in criminal law: the incompatibility of a judge who has already ruled in the same proceedings concerning asset prevention measures. This issue, which touches upon the fundamental principles of a fair trial, deserves in-depth analysis to understand its implications.

Context of the Judgment

The Court addressed the question of the constitutionality of art. 37, paragraph 1, letter a), in relation to art. 36, paragraph 1, letter g), of the Code of Criminal Procedure, highlighting a possible contradiction with articles 24, 111, and 117 of the Italian Constitution. In particular, the order emphasised that the idea that a judge who has already ordered the return of the case files to the proposing authority cannot decide on the request for preventive seizure and confiscation is not manifestly unfounded.

Implications of the Decision

Proceedings for the application of asset prevention measures - Judge who returned the case files to the proposing authority for further investigations pursuant to art. 20, paragraph 2, Legislative Decree no. 159 of 2011 - Incompatibility to decide on the request for preventive seizure and confiscation - Question of constitutionality - Not manifestly unfounded. The question of the constitutionality of art. 37, paragraph 1, letter a), in relation to art. 36, paragraph 1, letter g), of the Code of Criminal Procedure, which refers to art. 34 of the Code of Criminal Procedure, for conflict with articles 24, 111, and 117 of the Constitution, the latter in relation to articles 6 ECHR and 47 of the Charter of Fundamental Rights of the European Union, is not manifestly unfounded, in that it does not provide that the judge who, called upon to decide on the application of the asset prevention measure, has ordered, in the same proceedings, the return of the case files to the proposing authority, pursuant to art. 20, paragraph 2, Legislative Decree of 6 September 2011, no. 159, may be challenged by the parties.

This summary highlights the delicate role of the judge and the importance of ensuring a fair trial. The issue underscores the need for a clear separation between investigation and decision-making phases, to prevent the judge from being influenced by previously made decisions.

• Principle of judicial impartiality
• Protection of the rights of the parties involved
• Consistency with European and constitutional law

Conclusions

In conclusion, judgment no. 44504 of 2024 represents a significant step towards strengthening procedural rights and the protection of judicial impartiality. The Court of Appeal of Florence, with its decision, has not only highlighted the problems related to judicial incompatibility but has also paved the way for possible legislative intervention aimed at ensuring increasingly fair and just proceedings. It will be interesting to observe how these principles will be applied in future jurisprudential and regulatory developments.