With judgment no. 46130 of November 15, 2023, the Italian Supreme Court of Criminal Cassation highlighted that merely citing the relevant legal provisions is not sufficient to justify an evidentiary seizure, unless details are provided regarding the alleged conduct, the reasons why the seized assets should be considered part of or connected to the crime, as well as the specific evidentiary purpose pursued.
In this case, the Court of Fermo had rejected an appeal against a decree validating a search and seizure order issued by the public prosecutor concerning assets linked to alleged crimes of trading counterfeit goods and receiving stolen property.
In the appeal to the Supreme Court, one of the grounds for complaint was the lack of reasoning in the validation decree concerning the contested conduct. According to the defense, the judge merely referred to the legal violations without providing a clear description of the alleged criminal conduct, including spatial and temporal details, the nature of the assets to be seized, and their connection to the alleged crime.
Through this ruling, the Supreme Court clarified that the reasoning behind the seizure must necessarily include a thorough explanation regarding the existence of the fumus commissi delicti for which the proceedings are being carried out, indicating the abstract configurability of the alleged crime in relation to the consistency of the elements presented.
This assessment must be carried out exclusively with reference to the suitability of the elements constituting the criminal report, highlighting their actual usefulness.
Specifically, the reasoning must not become a judgment on the actual merits of the accusation. Instead, the focus should be on the concrete possibility of framing the event within a specific crime hypothesis. It is not sufficient to merely affirm the existence of the crime by the public prosecutor or to provide a generic investigative prospect regarding the criminal report.
According to the Supreme Court, the lack of reasoning would turn the evidentiary tool into a purely exploratory measure if the alleged crimes, the nature of the conduct, the assets subject to seizure, and the spatial and temporal coordinates in which the crime allegedly occurred are not specified. The Court affirms that the obligation to provide reasoning in support of the evidentiary seizure decree must therefore be adapted in relation to the alleged event, the type of offense to which the event is effectively attributable, the connection between the seized assets and the crime, as well as the nature of the asset intended to be seized.
Therefore, it is not sufficient to merely cite the legal provisions without providing a description of the facts, the reason why the seized assets should be considered part of or connected to the crime, nor the evidentiary purpose pursued.
Furthermore, since the seizure serves a precautionary function and acts as a preliminary tool for the subsequent decision on the merits, it must comply with the principles of adequacy and proportionality.
Consequently, the instrumental connection between the asset and the criminal conduct must be one of the evaluation criteria when ordering the seizure and, accordingly, when providing justification for it.
For these reasons, in the case examined by the Supreme Court, the seizure decree was found to be seriously deficient in terms of understanding which specific act the proceedings were based upon. Consequently, the Supreme Court annulled the challenged order without referral, as well as the seizure decree, and ordered the return of the assets to their rightful owners.
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