Commentary on Judgment No. 47383 of 2024: Seizure and Opposition in Criminal Law

Judgment No. 47383 of November 29, 2024, issued by the Court of Cassation, constitutes an important ruling on preventive measures and opposition to eviction orders. In this article, we will examine the salient points of the decision, analyzing the regulatory and jurisprudential context that supports it.

The Case and the Judge's Decision

In this case, the subject of the dispute was a request for postponement of the execution of an eviction order for a seized property. The court of Rome had rejected this request, and the matter then moved to the opposition judgment. The Court ruled that the judge who had already participated in the rejecting panel could legitimately form the new panel for the opposition judgment.

This aspect is particularly relevant as it touches upon the delicate issue of judicial incompatibility. In general, incompatibility occurs when merits assessments belong to different stages of the proceedings. However, the Court clarified that the opposition judgment is not an appeal and does not represent an autonomous phase, but rather a segment of a unitary proceeding.

The Ruling's Maxim

Seizure for confiscation - Eviction order - Request for postponement - Rejection - Opposition - Incompatibility of the judge who decided on the request to form the panel - Exclusion - Reasons. In matters of prevention, the judge who was part of the panel that rejected "de plano" the request for postponement of the execution of the eviction of the seized property may legitimately form the panel in the opposition judgment, as incompatibility presupposes that the merits assessments belong to different degrees or phases of the process, while the opposition judgment is not an appeal, nor does it represent a distinct and autonomous phase, but rather integrates a segment, within a unitary proceeding, through which full adversarial proceedings are implemented, potentially and at the initiative of the party itself.

This maxim highlights the importance of guaranteeing the right to defense and the continuity of the proceedings, allowing the judge to examine the issue without encountering incompatibility problems.

Regulatory and Jurisprudential References

The judgment is based on several provisions of the Code of Criminal Procedure, particularly Article 34 and Article 667, which deal respectively with preventive measures and oppositions. Furthermore, the Constitutional Court has repeatedly reiterated the need to ensure a fair trial, in line with the principles established by the European Union regarding fundamental rights.

• Article 34 of the New Code of Criminal Procedure: Preventive measures.
• Article 667 of the New Code of Criminal Procedure: Opposition to orders.
• References to previous case law relevant to the case.

In this context, the ruling of the Court of Cassation not only clarifies the issue of incompatibility but also represents an important step for the protection of the rights of individuals involved in preventive proceedings.

Conclusion

Judgment No. 47383 of 2024 offers significant food for thought on the functioning of the judicial system in matters of preventive measures. The possibility of maintaining the same judging panel in the opposition process underscores the importance of continuity and decisional coherence, promoting a fair and just proceeding.