Criminal Preservation Seizure and Contradictory Opposition: The Ruling of the Court of Cassation No. 12316/2025

In the complex and delicate landscape of Italian criminal procedural law, precautionary measures play a crucial role, balancing the need for effective judicial action with the safeguarding of the fundamental rights of the accused. Among these, the preservation seizure represents a tool of particular importance, often the subject of debate and significant judicial rulings. In this context, the Court of Cassation, with ruling no. 12316 of 2025, has provided fundamental clarification regarding the issue of prior adversarial proceedings, reiterating the legitimacy of its absence in the phase of issuing the measure.

Preservation Seizure: A Measure to Protect Interests

Preservation seizure, governed by articles 316 et seq. of the Code of Criminal Procedure (c.p.p.), is a real precautionary measure aimed at guaranteeing the payment of court costs, pecuniary penalties, and civil obligations arising from the crime, such as compensation for damages to the victim. Its "real" nature implies that it directly affects specific assets of the accused (or the civilly liable party), withdrawing them from their availability to ensure the future execution of credits. The peculiar characteristic of this measure is often its adoption "by surprise," i.e., without prior adversarial proceedings with the party affected by it. This method, while essential to prevent the suspect or accused from dispersing their assets, has raised questions in the past about its compatibility with constitutional and conventional principles.

The question of the constitutionality of art. 317, paragraph 1, of the Code of Criminal Procedure, for conflict with articles 3, 24, and 111 of the Constitution and art. 6 of the ECHR, is manifestly unfounded, as it does not provide for adversarial proceedings before the issuance of the measure ordering the preservation seizure, since the eventual and deferred adversarial proceedings, ensured by the request for review under art. 318 of the Code of Criminal Procedure, satisfy the guarantees of defence with respect to a real precautionary measure that is by nature a physiologically surprise act, making the choice to adopt it "inaudita altera parte" not unreasonable.

This maxim of the Court of Cassation, taken from the ruling in question, represents the core of the decision. The Court addresses and resolves the question of the constitutionality of art. 317, paragraph 1, of the c.p.p., which does not provide for adversarial proceedings before the issuance of the preservation seizure. The main argument of the ruling is that, although prior adversarial proceedings are lacking, the guarantees of defence are not diminished but are ensured in a subsequent and equally effective phase: that of review. The very nature of preservation seizure, conceived to be a "surprise" act in order to protect the effectiveness of the measure, makes the legislative choice to adopt it "inaudita altera parte" (i.e., without hearing the other party) entirely reasonable and not in conflict with constitutional and supranational principles.

Deferred Adversarial Proceedings and Constitutional Guarantees: A Judicial Balancing Act

The ruling of the Court of Cassation, relating to the case of the accused M. R., is part of a solid line of case law that has long clarified the delicate balance between the effectiveness of precautionary measures and the right to defence. The Court held that adversarial proceedings, although not prior, are fully guaranteed by the possibility of filing a request for review pursuant to art. 318 of the c.p.p. This remedy allows the accused to appeal the preservation seizure order before the Tribunal for Liberty (T.D.L.), as happened in the specific case with the partial rejection by the Tribunal for Liberty of Turin. In this venue, the T.D.L. is called upon to assess the existence of the prerequisites for the seizure, its necessity, and its proportionality, ensuring full judicial review.

The Court examined the issue in light of several fundamental articles:

• Art. 3 of the Constitution (Principle of Equality and Reasonableness): The choice of deferred adversarial proceedings is considered a reasonable solution that does not unfairly discriminate against the accused but takes into account the specific needs of real precautionary measures.
• Art. 24 of the Constitution (Right to Defence): The right to defence is ensured at every stage and level of the proceedings. Its implementation, in the case of preservation seizure, is shifted to the review stage, where the accused, assisted by their defence counsel, can assert all their rights.
• Art. 111 of the Constitution (Principle of Fair Trial): A fair trial requires equality of arms and adversarial proceedings. Case law has consolidated the idea that deferred adversarial proceedings, provided they are effective and timely, are compatible with the requirements of a fair trial, especially when the nature of the act requires an element of surprise.
• Art. 6 of the ECHR (Right to a Fair Trial): Even at the European level, the case law of the ECtHR has recognised the legitimacy of measures adopted inaudita altera parte, provided that subsequent effective judicial review is provided for.

The Court of Cassation, in line with previous rulings (such as those cited in the previous maxims, e.g., no. 51576 of 2019 or United Sections no. 15290 of 2018), has therefore confirmed the solidity of this normative and interpretative framework.

Implications for the Parties Involved and Legal Defence

For the accused M. R. and for all those who find themselves subject to a preservation seizure, ruling no. 12316/2025 reiterates a fundamental principle: the absence of prior adversarial proceedings does not mean the absence of protection. On the contrary, the system provides for a robust and swift judicial review mechanism through recourse to the Tribunal for Liberty. This means that, once the seizure order has been notified, the accused and their defence counsel must act promptly. The request for review becomes the main arena in which to challenge the legitimacy and validity of the measure, presenting evidence and arguments in their defence. Timeliness and precision in drafting the appeal are essential to best protect the financial interests involved.

Conclusions: The Solidity of a Consolidated Procedural Model

The ruling of the Court of Cassation no. 12316 of 2025 does not introduce revolutions but strengthens a consolidated principle of our criminal procedural law: the balance between the effectiveness of real precautionary measures and the guarantee of the right to defence. The "surprise" nature of preservation seizure is recognised as a functional necessity for its very effectiveness, but this need is tempered and balanced by the provision for subsequent, full, and effective judicial review through the appeal process. This model ensures that, even in the immediacy of the precautionary action, individual rights are fully protected through adversarial proceedings, albeit deferred. For those facing such an incisive measure, the assistance of a lawyer experienced in criminal procedural law is crucial to navigate the complexities of the system and ensure the full defence of their rights and interests.