Evidential Seizure and Omission of Notice to the Defence Counsel: The Supreme Court Clarifies with Ruling No. 11635/2025

Criminal procedural law is a constantly evolving field, where every judicial ruling can have a significant impact on defence strategies and the work of the public prosecutor's office. The recent Ruling No. 11635 of 21/01/2025 by the Court of Cassation, presided over by G. A. and with A. C. as rapporteur, represents a fundamental clarification on a delicate aspect of evidential seizure, one of the most incisive real precautionary measures: the consequences of the omission of notice to one of the defence counsel during the review phase. The case involved the defendant M. D. G., and the decision annuls with referral an order from the Milan Court of Liberty, emphasizing the importance of defence guarantees while upholding the need to preserve the effectiveness of the investigative act.

Evidential Seizure: An Essential Investigative Tool

Evidential seizure, governed by Article 253 et seq. of the Code of Criminal Procedure (c.p.p.), is an investigative tool of primary importance. It allows the judicial authority to remove items related to the crime from anyone's possession, if they are necessary for the ascertainment of facts. This can include documents, electronic devices, weapons, or any other object that may constitute the corpus delicti or useful evidence. Its purpose is, therefore, to secure sources of evidence for the trial, preventing them from being altered, dispersed, or concealed. Precisely because of its invasive nature, the law provides specific guarantees to protect the subject affected by the measure, including the possibility of requesting a review.

The Guarantee of the Right to Defence and the Omission of Notice to the Defence Counsel

The right to defence is a cornerstone principle of our legal system, enshrined in Article 24 of the Constitution and further specified in Articles 96 and 178 of the c.p.p. It is exercised at every stage of the criminal proceedings, particularly in the context of precautionary measures. Against the seizure order, a request for review (Art. 324 c.p.p.) is admissible, a chamber proceeding that allows the interested party and their defence counsel to challenge the lawfulness and merits of the seizure before the Court of Liberty. It is in this context that the issue addressed by the Court of Cassation arises: what happens if one of the chosen defence counsel is not notified of the review hearing?

In the matter of evidential seizure, the omission of notice to one of the chosen defence counsel of the date of the chamber hearing set for the review of the original measure constitutes a general nullity of the hearing and the order that concludes it, which, however, does not result in the loss of effectiveness of the seizure, which occurs only if the Court does not rule within the timeframe stipulated by Art. 309, paragraph 10, of the Code of Criminal Procedure.

The maxim of Ruling No. 11635/2025 is extremely clear and resolves a potential interpretative conflict. The Court states that the omission of notice to one of the chosen defence counsel of the date of the review hearing constitutes a general nullity. This means that the hearing and the resulting order are flawed, as a fundamental right of the defendant, that of being fully assisted by technical defence, is violated. Such nullity, pursuant to Art. 178 c.p.p., can be remedied but, if promptly raised, leads to the annulment of the flawed measure and the need to repeat the act. However, the Court of Cassation specifies a crucial point: this nullity does not automatically lead to the loss of effectiveness of the seizure. The seizure, in fact, maintains its validity and its function of preserving evidence, unless another specific condition occurs.

Practical Consequences and the Role of Art. 309 c.p.p.

The distinction made by the Court of Cassation is of fundamental practical importance. While on the one hand the centrality of the right to defence is reaffirmed, on the other hand, it avoids a procedural defect in the review phase from irremediably compromising the acquisition of evidence. Evidential seizure, once executed, aims to crystallize a situation and preserve essential elements for the trial. Allowing it to automatically lapse due to a defect in the review hearing could nullify investigative efforts and compromise the search for truth.

The loss of effectiveness of the seizure, according to the Court of Cassation, occurs only if the Court of Review does not rule within the peremptory deadline set by Art. 309, paragraph 10, of the c.p.p. This rule requires the Court to decide on the review request within ten days of receiving the documents (or five days in specific cases). It is this deadline, therefore, that is the only condition which, if not met, determines the ineffectiveness of the seizure. The rationale behind this provision is to ensure a swift decision on the lawfulness of the precautionary measure, preventing the subject affected by the seizure from remaining in a state of uncertainty for an excessive period.

For defence counsel, this means that, while they must raise the omission of notice to obtain the annulment of the flawed review hearing and order, their focus must also remain on verifying compliance with the deadlines referred to in Art. 309, paragraph 10, of the c.p.p. for the decision on the new review. The seizure, in fact, will remain effective until a new ruling or until the expiry of the peremptory deadline for the decision.

• The nullity of the review hearing due to omission of notice does not automatically render the seizure ineffective.
• The seizure loses effectiveness only if the Court does not decide on the review within the peremptory deadlines of Art. 309, paragraph 10, of the c.p.p.
• The right to defence is protected through the possibility of a new review, but the precautionary measure remains valid until a different decision is made.

Conclusions: A Delicate Balance Between Guarantees and Procedural Needs

Ruling No. 11635/2025 by the Court of Cassation is part of a constant search for balance between the indispensable guarantees of the right to defence and the needs for effective criminal prosecution. The ruling reiterates the seriousness of procedural nullities that affect the right to defence, but at the same time precisely delimits the consequences of such defects, avoiding automatisms that could compromise the ascertainment of truth. For legal professionals, this ruling represents an important reference point, which requires scrupulous attention both to compliance with procedural forms and to understanding the real implications of each individual violation.