Commentary on Judgment No. 15637 of 2024: Preventive Seizure and the Principle of Proportionality

The judgment No. 15637 of March 13, 2024, filed on April 16, 2024, provides important reflections on precautionary measures, particularly regarding preventive seizure. It addresses the delicate balance between the demands of justice and the protection of individual rights, highlighting the crucial role of the principle of proportionality.

The Principle of Proportionality in Preventive Seizure

The Court clarified that the principle of proportionality must be applied not only at the stage of adopting precautionary measures but also during their execution. In particular, it ruled on the eviction order issued by the public prosecutor, establishing that it is not the task of the precautionary judge to reassess, in the absence of a party's initiative, the existence of "periculum in mora".

  • Preventive Seizure: measure adopted to prevent the commission of crimes or to avoid the danger of aggravating the situation.
  • Principle of Proportionality: the precautionary measure must be adequate and necessary concerning the objective to be achieved.
  • Role of the Judge: limited in reassessing precautionary needs unless prompted by the parties.

Summary of the Judgment and Practical Implications

APPLICABILITY - Execution of preventive seizure - Eviction order by the public prosecutor - Principle of proportionality - Applicability - Conditions - Power of official reassessment of precautionary needs - Exclusion - Reasons. In the context of the so-called preventive seizure, the principle of proportionality, applicable even during the execution of the constraint through the eviction order issued by the public prosecutor, does not entail, in the absence of a party's initiative, the reassessment by the precautionary judge of the existence of the requirement of "periculum in mora", since, if this were allowed, it would result in an undue invasion of the prerogatives of the prosecuting authority, responsible for executing the measure.

This summary highlights the importance of maintaining a balance between the prerogatives of the prosecuting authority and the role of the precautionary judge, preventing unjustified interference. The Court, referring to the New Code of Criminal Procedure, emphasized the need to respect the conditions for the applicability of preventive seizure, avoiding that the judge replaces the public prosecutor in assessing precautionary needs.

Conclusions

Judgment No. 15637 of 2024 represents an important milestone in Italian jurisprudence regarding preventive seizure. It underscores the necessity of a clear delineation of powers among the different figures involved in the criminal process, thus ensuring greater protection of the rights of the parties involved. The Court's interpretation offers significant insights for legal practice, reiterating the importance of a proportional approach that respects the various functions within the legal system.

Bianucci Law Firm