13 Interventi


July 7th, 2014, written by Lawyer Pasquale Longobucco

Preventive Seizure aimed to Forfeiture by equivalent - "fumus commissi delicti" ("badge of offence" ) - motivational charges of the Court:"Tribunale del Riesame". Side note of Corte di Cassazione . Pen. III, 19.2.14/3.6.14, n. 443, Court Judges: Mannino, Andronio.

With reference to the correct evaluation of fumus commissi delicti ("badge of offence") related to the preventive Seizure, legal Science wonders which is the review Court jurisdiction .
It is true that this area should be limited by legitimacy conditions existence of this "provisional remedy" and it cannot be an early judgment for the indicted person .
But it is also true that the Court ("Tribunale del Riesame") task is to carry out his role in ensuring the rights of indicted person not limiting his knowledge to the abstract offence configuration. The Court must consider and evaluate every acquired proceedings findings.
Consequently, Court must evaluate not only Prosecutor allegations, but also the Defender evidence disproval and every other offered issue, which may affect the alleged offence configurability.
The Superior Court (Corte di Cassazione), third Section - stated that : "the task of the Court ("Tribunale del Riesame") it is to fulfill its role in ensuring the rights of indicted person, and it has not to limit his knowledge to the abstract offence cognition instead of having to consider and evaluate every proceedings findings. It has to examine not only Prosecutor allegations but also the Defender evidence disproval and every other offered issue, which may affect the configurability of alleged hypothesized offence". (judgment 23rd October - 23rd November, 2012 n. 45849).
The judgment conclusion stated that: "in absence of such clarifications, every motivation is only merely apparent."
Therefore, the detected motivation failure, about the offence non-existence, causes violation under article 125 and consequently article 322 ter of Italian Penal Code and article 321 Italian Criminal Procedure Code.
Even recently, the Superior Court (Corte di Cassazione), stated the above principle in delivering the sentence against a Ferrara Court decision that was confirming the preventive Seizure aimed to forfeiture by equivalent (Corte di Cassazione Section III, Febbruary 19th,2014 and March 14th 2014 judgement n. 443, Judges Mannino, and Andronio).
With the above mentioned judgment, the Superior Court (Corte di Cassazione), stated: "It is allowed the claim to The Superior Court ("Corte di Cassazione") against a decision delivered about a preventive seizure, although for violation law only, when motivation is absent or merely apparent, this because it lacks the minimum requirements to make comprehensible the contested matter and the judge reasoning by the Court. "
In this leading case, the Court ("Tribunale del Riesame") had not, even briefly, described the situation in its examination and it was mostly limited to list Court decisions concerning the seizure of money amounts deposited and available in current accounts of no-indicted person.
The motivation of "fumus commissi delicti" (badge of offence, is complete if it references to the objective and subjective elements resulting by Guardia di Finanza (inland revenue Police) report. They can consist of a number of witness statements ... and transaction verifications on companies that denote an availability on their managers.