Preventive Seizure Not Executed and Inadmissibility of Review: What the Court of Cassation Says
With ruling no. 14526 of March 7, 2025 (filed April 14, 2025), the Second Criminal Section of the Court of Cassation closes the circle on a topic that continues to generate litigation: is it possible to challenge a preventive seizure decree through review before the restraint is actually imposed? The Supreme Court's answer is clear: no. In the following lines, we examine the case, the legal principle established, and the concrete implications for suspects, defense counsel, and owners of seized property.
The Procedural Fact
The suspect A. C. is served with a preventive seizure decree issued by the GIP of Cagliari. However, the measure is not promptly executed by the judicial police. Despite this, the defense files a request for review pursuant to art. 324 c.p.p., which the Tribunal for Liberty declares inadmissible. The decision is then submitted to the Court of Cassation for review, which confirms the inadmissibility outcome.
The Legal Principle Affirmed
A request for review against a preventive seizure decree that has not yet been executed is inadmissible, as, in such a situation, there is no concrete and current interest in filing an appeal. In its reasoning, the Court clarified that the interest in appealing cannot consist merely in the aim of obtaining a declaration of illegality of a measure that has not yet affected the applicant's assets, as the appeal mechanism is intended to remove the real restraint and obtain the return of the seized item.
Comment: the Court of Cassation refers to the concept of "interest to act" under art. 568, paragraph 4, c.p.p. and, more generally, to the constitutional principle of the reasonable duration of the proceedings (art. 111 of the Constitution). Review has a restorative nature: it serves to lift an existing restraint. If the restraint does not yet exist, the appeal amounts to a request for a purely abstract ruling, which jurisprudence qualifies as inutiliter data and therefore inadmissible. The defense counsel must therefore wait for the material execution of the seizure to activate – within ten days – the remedy of review.
Normative and Jurisprudential Coordinates
- Art. 324 c.p.p.: governs review against preventive seizure.
- Art. 591, paragraph 1, letter a), c.p.p.: provides for inadmissibility in case of lack of interest.
- Art. 568, paragraph 4, c.p.p.: interest must be "concrete and current".
- Conforming precedents: Cass. nn. 3465/2021, 17839/2019, 16535/2017.
- Divergent precedents: Cass. nn. 43718/2023, 40069/2021, 14772/2018.
The United Sections (judgments 27777/2006 and 18253/2008) had already defined the physiology of review as a remedy to protect the right of ownership; the present ruling constitutes its natural continuation.
Practical Implications for Defense
The principle affirmed requires defense counsel to precisely calibrate their reaction times:
- If the seizure has not yet been executed, a request for revocation to the Public Prosecutor or the GIP can still be submitted (art. 321, paragraph 3-bis, c.p.p.).
- Only after execution does the ten-day period for review pursuant to art. 324 c.p.p. begin.
- Any delay in execution does not violate the right to defense, as the interest in appealing only accrues with the actual impact on assets.
For the suspect, the possibility of appealing to the Court of Cassation against the order of the Tribunal for Liberty remains, but only for violation of law (art. 325 c.p.p.), provided that the seizure has become effective in the meantime.
Conclusions
Cassation ruling no. 14526/2025 reiterates a principle of procedural economy: appeal remedies must be used only when there is a concrete interest. Criminal defense lawyers are therefore called upon to monitor the effective execution of the seizure before initiating review, avoiding procedural acts destined to be declared inadmissible and focusing defensive energies on truly effective tools.
