Incompatibility of the Judge in Asset Prevention Measures: Commentary on Judgment No. 44504 of 2024

The judgment No. 44504 of 2024, issued by the Court of Appeal of Florence, emphasized a crucial issue in criminal law: the incompatibility of a judge who has already expressed an opinion in the same proceeding regarding the asset prevention measure. This topic, which touches on the fundamental principles of a fair trial, deserves a thorough analysis to understand its implications.

The Context of the Judgment

The Court addressed the issue of constitutional legitimacy of Article 37, paragraph 1, letter a), in relation to Article 36, paragraph 1, letter g), of the Code of Criminal Procedure, highlighting a possible contradiction with Articles 24, 111, and 117 of the Italian Constitution. In particular, the order pointed out that the idea that a judge, who has already ordered the return of documents to the proposing authority, cannot decide on the request for seizure and preventive confiscation is not manifestly unfounded.

The Implications of the Decision

Procedure for applying asset prevention measures - Judge who returned the documents to the proposing authority for further investigations pursuant to Article 20, paragraph 2, Legislative Decree No. 159 of 2011 - Incompatibility to decide on the request for seizure and preventive confiscation - Constitutional legitimacy issue - Not manifestly unfounded. The issue of constitutional legitimacy of Article 37, paragraph 1, letter a), in relation to Article 36, paragraph 1, letter g), of the Code of Criminal Procedure, which refers to Article 34 of the Code of Criminal Procedure, for contrast with Articles 24, 111, and 117 of the Constitution, the latter in relation to Articles 6 of the ECHR and 47 of the Charter of Fundamental Rights of the European Union, insofar as it does not provide that the judge who, called to decide on the application of the asset prevention measure, has ordered, in the same proceeding, the return of documents to the proposing authority, pursuant to Article 20, paragraph 2, Legislative Decree No. 159 of September 6, 2011, can be recused by the parties.

This maxim highlights the delicacy of the judge's role and the importance of ensuring a fair process. The issue underscores the necessity of a clear separation between investigative phases and decision-making phases, to prevent the judge from being influenced by actions taken previously.

  • Principle of impartiality of the judge
  • Protection of the rights of the involved parties
  • Consistency with European and constitutional law

Conclusions

In conclusion, judgment No. 44504 of 2024 represents a significant step towards strengthening procedural rights and ensuring the impartiality of the judge. The Court of Appeal of Florence, with its decision, not only highlighted the issues related to the incompatibility of the judge but also opened the way for possible legislative intervention aimed at ensuring increasingly fair and just processes. It will be interesting to observe how these principles will be applied in future jurisprudential and regulatory developments.

Bianucci Law Firm