Judgment No. 44941 of 2024: Inspections and Guarantees for Defenders

The recent judgment No. 44941 of November 13, 2024, issued by the Court of Cassation, offers an important reflection on the guarantees for defenders in relation to inspections and searches at their offices. In particular, the Court reiterated that the guarantees provided by Article 103 of the Code of Criminal Procedure do not confer an immunity principle to all lawyers but apply in specific circumstances.

The Guarantees of Article 103 of the Code of Criminal Procedure

Article 103 of the Code of Criminal Procedure establishes fundamental guarantees for the legal profession, aimed at protecting the defensive function. However, the ruling clarified that these guarantees apply only when it is necessary to protect the object of the defense and provided that the defender is not themselves the subject of investigation. In this context, the Court excluded that the public prosecutor must obtain the judge's authorization to conduct searches at the office of an investigated lawyer.

Inspections, searches, and seizures at the office of defenders - Guarantees of Article 103 of the Code of Criminal Procedure - Scope of operation - Limits - Reasons - Case. The guarantees provided by Article 103 of the Code of Criminal Procedure do not introduce an immunity principle for anyone practicing law, applying exclusively in cases where the defensive function or the object of the defense needs to be protected against the person who holds the status of defender by virtue of a duly conferred mandate, and provided that they themselves are not under investigation. (Case in which the Court excluded that the public prosecutor was required to obtain the judge's authorization and obliged to provide prior notice to the Bar Association in order to conduct a search aimed at finding the body of the crime at the office of a lawyer, investigated for complicity in usury and attempted extortion).

Practical Implications of the Ruling

This ruling has significant implications for the legal profession, as it clarifies the limits of defender immunity and the possibility of intervention by authorities. The main considerations that emerged are:

  • The guarantees are not absolute and do not apply to all lawyers indiscriminately.
  • The defender must be in a non-investigative position to enjoy the protections provided.
  • The authorities can proceed with inspections without the need for authorization if valid reasons exist.

Conclusions

In conclusion, judgment No. 44941 of 2024 is an important step in defining the rights and responsibilities of defenders in Italy. It underscores the need for a balance between the protection of the defensive function and the legitimacy of criminal investigations. It is essential that legal professionals are aware of these limits and the circumstances in which they can invoke the guarantees provided by law.

Bianucci Law Firm