Evidential Seizure and Attempted Crime: Cassation No. 12518/2025 Clarifies the Limits of the Fumus Commissi Delicti
Judgment No. 12518/2025 of the Court of Cassation, filed on April 1, 2025, marks another piece in the complex mosaic of the regulation of evidential seizures ex art. 253 c.p.p. The case, which originated from the detention of an activist from the "Ultima Generazione" movement at the entrance of a museum with chalks, glue, and a cardboard sign, offered the Supreme Court the opportunity to redefine the boundaries of the fumus commissi delicti when the alleged crime is only attempted.
Context and Essential Facts
The Review Court of Venice had confirmed the seizure of the material, deeming it capable of constituting the attempted crime of defacing cultural property (arts. 56 and 518-duodecies c.p.). The defendant, identified as P. F., had not, however, materially initiated any offensive conduct nor publicly claimed the intention to do so. The Cassation Court – President L. R., Rapporteur A. G. – annulled the decision without referral, ordering the return of the items.
In matters of evidential seizure, the judge, when assessing the fumus commissi delicti, is required to verify, if a crime has been alleged in attempted form, in addition to its abstract configurability, also the unequivocal nature and suitability of the acts carried out, discernible, with an ex ante judgment, from the agent's conduct and the modalities of the action, as these requirements affect the concrete reasonable hypothesizability of the crime itself, without reference, for this purpose, to mere internal intentions, of which no knowledge is gained through objectively discernible data.
In other words, the seizure cannot be based on mere assumptions about the suspect's intentions: the acts actually committed must be unequivocally directed towards committing the offense and suitable to consummating it. The assessment must be carried out "ex ante," meaning with the judge's perspective at the time of the facts, without indulging in hypothetical reconstructions or prognoses based on mere conjecture.
The Principle of Suitability and Unambiguity in Attempt
The reference to art. 56 c.p. is fundamental: for there to be an attempt, the acts must manifest the "direct" intention to commit the crime and must be objectively suitable. The Cassation Court, referring to consistent precedents (e.g., Cass. 3465/2020; 36311/2019), specifies that:
- suitability must be assessed with objective criteria and not in the abstract;
- unambiguity implies the absence of alternative lawful explanations for the acts committed;
- the existence of a mere "internal intention" does not in itself constitute an attempt, nor does it justify an evidential seizure.
In the present case, chalks and cardboard, normally intended for creative use, could not be considered typical tools for permanent defacement in themselves; at the same time, there was no preparatory act (approaching the works, opening packages, revendicatory statements). Therefore, the reasonable hypothesizability of the crime is lacking.
Operational Implications for Defense and Prosecution
The ruling offers practical insights:
- Defense Counsel: will be able to challenge seizures based on ambiguous or multifunctional conduct, insisting on the absence of ambiguity.
- Prosecution Offices: will have to provide precise reasoning on the link between seized items and their offensive suitability, highlighting concrete factual elements.
- Review Judges: are called upon to verify not only the "abstract configurability" of the crime but also the logical coherence of the prosecution's case regarding the suitability and unambiguity of the acts.
Conclusions
Judgment No. 12518/2025 reiterates the need for rigorous judicial control over evidential seizures in cases of attempted crimes: the fumus, to be such, must be based on tangible facts, not on presumed intentions. In an era of increasing environmental and performative activism, the decision acts as a barrier against the temptation to use seizure as a "preventive" measure detached from actual offensive conduct. The Firm will carefully follow jurisprudential developments, ready to offer assistance to those who deem asset-freezing measures illegitimate.
