Preventive Seizure and Defense Ex Officio: Commentary on Judgment No. 38890 of 2024
The recent judgment No. 38890 of October 9, 2024, filed on October 23, 2024, provides important clarifications on the procedure for preventive seizure against legal entities. In particular, the Court of Liberty of Salerno addressed the issue of appointing an ex officio defender and the information guarantee in the context of a precautionary action involving an entity, such as SEVEN S.R.L.
The Key Point of the Judgment
Execution of seizure against an entity - Appointment of an ex officio defender and information guarantee - Necessity - Exclusion - Reasons. The execution, against an entity, of the preventive seizure measure does not have to be preceded, under penalty of nullity, by the appointment of an ex officio defender and the notification of the information guarantee, pursuant to Articles 40 and 57 of Legislative Decree No. 231 of June 8, 2001, as it is an "unexpected" act for which such formalities, similar to those provided for the investigated physical person, are required only if the representative of the legal entity is present at the completion of the act by the judicial police and is without a trusted defense attorney.
Analysis of the Judgment
The judgment in question highlights a fundamental aspect of the legislation regarding precautionary measures against entities: the non-necessity of an ex officio defender and the information guarantee, unless the legal representative of the entity is present at the time of the act. This principle responds to the logic of avoiding excessive formalism that could hinder the action of the judicial police.
- The preventive seizure is an act that can be executed without prior notice.
- The protection of the entity's rights is guaranteed only if its representative is present and does not have a trusted attorney.
- This interpretation aligns with the principles of speed and effectiveness of investigations.
In essence, the Court wanted to emphasize that the preventive seizure procedure, while it may seem severe, is designed to protect the public interest and ensure the proper conduct of investigations, preventing any technical defenses from compromising the action of justice.
Conclusions
Judgment No. 38890 of 2024 represents an important reference for legal practitioners, clarifying the execution methods of preventive seizure against entities. The fact that the appointment of an ex officio defender is not required in the absence of the legal representative raises questions about balancing the effectiveness of investigations and the right to defense, requiring deep reflection on how to ensure adequate protections in a context of precautionary measures. It is essential that companies and their legal representatives are prepared for these dynamics to best address potential crisis situations related to precautionary measures.
