Commentary on Judgment No. 47383 of 2024: Seizure and Opposition in Criminal Law

The judgment no. 47383 of November 29, 2024, issued by the Court of Cassation, represents an important ruling regarding preventive measures and objections to eviction orders. In this article, we will examine the key points of the decision, analyzing the regulatory and jurisprudential context that supports it.

The Case and the Judge's Decision

In this case, the subject of contention was a request for deferral of the execution of an eviction order for a property under seizure. The Court of Rome had rejected this request, and the issue then shifted to the opposition judgment. The Court established that the judge who had already participated in the rejecting panel could legitimately constitute the new panel for the opposition judgment.

This aspect is particularly relevant as it touches upon the delicate issue of the incompatibility of the judge. In general, incompatibility occurs when the merits assessments belong to different stages of the proceedings. However, the Court clarified that the opposition judgment is not an appeal and does not represent an autonomous phase but rather a segment of a unified proceeding.

The Maxim of the Judgment

Seizure aimed at confiscation - Eviction order - Request for deferral - Rejection - Opposition - Incompatibility in composing the panel of the judge who decided on the request - Exclusion - Reasons. In matters of prevention, the judge who was part of the panel that "de plano" rejected the request for deferral of the execution of the eviction of the property under seizure can legitimately compose the panel in the opposition judgment, as incompatibility presupposes that the merits assessments belong to different degrees or stages of the proceedings, while the opposition judgment is not an appeal, nor does it represent a distinct and autonomous phase, integrating a segment, within a unified proceeding, through which full adversarial proceedings are carried out, potentially and at the initiative of the party itself.

This maxim highlights the importance of ensuring the right to defense and the continuity of the proceedings, allowing the judge to examine the issue without encountering problems of incompatibility.

Regulatory and Jurisprudential References

The judgment is based on several provisions of the Code of Criminal Procedure, particularly article 34 and article 667, which deal respectively with preventive measures and objections. Furthermore, the Constitutional Court has repeatedly emphasized the necessity of ensuring a fair trial, in line with the principles established by the European Union regarding fundamental rights.

  • Article 34 of the New Code of Criminal Procedure: Preventive measures.
  • Article 667 of the New Code of Criminal Procedure: Objections to orders.
  • References to relevant previous jurisprudence for the case.

In this context, the ruling of the Court of Cassation not only clarifies the issue of incompatibility but also represents an important step for the protection of the rights of individuals involved in preventive proceedings.

Conclusion

The judgment no. 47383 of 2024 offers significant insights into the functioning of the judicial system concerning preventive measures. The possibility of maintaining the same judging panel in the opposition process underscores the importance of continuity and decision-making coherence, promoting a fair and just process.

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