Comment on Judgment No. 13817 of 2023: Evidential Seizure and Formal Defects
Judgment No. 13817 of February 28, 2023, issued by the Court of Cassation, provides important insights regarding evidential seizure and its regulatory framework. This provision is part of a context of real precautionary measures, impacting not only the rights of the defendant but also the proper management of legal procedures. In this article, we will analyze the maxim of the judgment and its implications in Italian criminal law.
The Maxim of the Judgment
Evidential seizure - Annulment for formal defects - Seizure under Art. 240-bis of the Penal Code - "Ne bis in idem" - Procedural bar - Conditions. In matters of real precautionary measures, the bar of precautionary judgment does not operate in cases where, after annulling the evidential seizure of a sum of money due to formal defects (in this case, due to lack of notification of the review decision), a seizure is again ordered, based on the same elements, in accordance with Art. 240-bis of the Penal Code. (In the reasoning, the Court specified that the precautionary judgment is not formed even when, in the case of annulment for formal defect of the first provision, the judge stated the non-existence of the "fumus" of the crime).
Formal Defects and Their Relevance
The Court confirmed that the annulment of an evidential seizure due to formal defects, as in the specific case of lack of notification, does not preclude the possibility of a new seizure. This principle is based on the interpretation of Article 240-bis of the Penal Code, which allows for the restoration of precautionary measures even after an annulment, provided that the supporting elements are the same.
The implications of this decision are significant because they break with the logic of "ne bis in idem," which normally prevents the repetition of a legal action that has already been judged. In this context, the judge must assess that the new seizure is not the result of a new evaluation regarding the existence of the "fumus" of the crime, but is based solely on the absence of correct procedures in the first provision.
Conclusions
In conclusion, Judgment No. 13817 of 2023 represents an important clarification regarding evidential seizure and formal defects. It highlights the importance of proper notification and adequate procedures in the context of precautionary measures. Legal practitioners must pay attention to these aspects to ensure the respect of the rights of the defendants and the legitimacy of the legal actions taken. The judgment invites reflection on the delicacy and complexity of precautionary measures within the Italian legal system, emphasizing the need for a balance between the protection of the law and individual rights.
