Commentary on Judgment No. 15673 of 2024: The Role of the Third Party in Preventive Seizure

Judgment No. 15673 of March 13, 2024, issued by the Court of Cassation, addresses a crucial aspect of criminal law concerning preventive seizure and the right of third-party holders to contest it. In particular, this decision clarifies that a third party with a legitimate interest in the return of the seized asset may legitimately contest not only the fictitiousness of the title of the seized asset but also the objective confiscability of the asset itself.

The Context of the Judgment

The case in question refers to a preventive seizure aimed at confiscation under Article 85-bis of the Presidential Decree of October 9, 1990, No. 309. The Court established that the third-party title holder has the right to demonstrate the absence of fumus commissi delicti and periculum in mora, which are essential elements for the legitimacy of the seizure. This principle is based on an extensive reading of the current laws that protect the rights of those who, despite being title holders, have had no involvement in illegal activities.

Maxim of the Judgment

Third party with an interest in restitution - Contestation of the prerequisites of the seizure - Admissibility - Reasons - Case. In the context of preventive seizure, the third-party title holder of the seized asset is authorized to contest, in addition to the fictitiousness of the title, the objective confiscability of the asset in the absence of 'fumus commissi delicti' and 'periculum in mora', as the absence of the prerequisites for confiscation can support the thesis of the non-fictitious but real nature of the title. (Case related to preventive seizure aimed at confiscation under Article 85-bis of the Presidential Decree of October 9, 1990, No. 309).

This maxim highlights how the Court of Cassation recognizes the right of the third party to defend themselves, asserting that the absence of prerequisites for confiscation can demonstrate the real title of the asset. This represents an important step forward in the protection of third-party rights, who often find themselves involved in criminal proceedings without any responsibility.

Implications for Criminal Law

The implications of this judgment are significant and fit into a broader debate regarding the balance between the fight against crime and the safeguarding of individual rights. It is essential that those in a situation of preventive seizure can exercise their right to defense, effectively contesting the actions of the authorities. Key points include:

  • Legitimization of the third party to contest the seizure;
  • Necessity to demonstrate the fictitiousness of the title;
  • Evaluation of objective confiscability in the absence of fumus commissi delicti.

Conclusions

In conclusion, Judgment No. 15673 of 2024 offers an important perspective on the legitimization of the third party in the context of preventive seizure. The ability to contest confiscation underscores the importance of ensuring a fair trial and the defense of individual rights, which are cornerstone elements of our legal system. With this ruling, the Court of Cassation not only clarifies the rights of third parties but also contributes to a broader reflection on procedural guarantees in criminal matters.

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