Index

The question
The solution adopted by the Cassation
Conclusions

1. The question
The Prosecutor of the Republic of Macerata ordered the seizure of two cell phones with a decree in order to "ascertain the supply and sale channels of the amazing substance" and this provision was confirmed by order.
This place, The defender of the suspect proposed an appeal by cassation deducting violation of the criminal law and a defect in motivation against this provision.
In particular, It is noted that the seizure decree in question brought only the indication of the provision that was assumed to have been violated, the date of the fact and the place.
However, In the face of this, The applicant observed as the review judge, emerged on the point of the absolute deficiency of indications on the fact from which to obtain the crime fumus, had correctly recognized that he had the task of verifying its existence, but he believed, nevertheless, the legitimate measure, due to the absolutely preliminary nature of the investigation phase, "as the prosecution body does not currently have further elements to formulate a more specific charge".
In fact, in this way, However, the seizure was given a purely exploratory purpose, in defiance of the indications provided by the Court of legitimacy (Sez. 6, n. 10815 of 16/02/2021).

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2. The solution adopted by the Cassation
The appeal was deemed well founded for the following reasons.
It was noticeable first of all, after having pointed out that the art. 253 cod. proc. pen. provides that the decree must be “motivated“, how the orientation was not considered acceptable - even though it appeared within the legitimacy jurisprudence and which the review Court would appear to have adhered to in relation to the case in question – according to which this burden of motivation must be modulated in relation to the procedural progression, so that in the initial phase of the investigations the mere indication of the legal provisions that are alleged to have been violated would be sufficient, of the date and place of the event and the investigative purposes for which the bond is placed (Sez. 2, n. 41360 of 1679/2015; Sez. 2, n. 2787 of 3/12/2015) expected that, reasoning like this, In the opinion of the supreme assembly, It would end with the attribute to the evidentiary seizure a merely exploratory purpose that does not compete and which contrasts with the need, several times also indicated in the European conventional seat, to count the interest in the persecution of crimes with the patrimonial interest of the suspect, effectively precluding control of the proportionality and adequacy of the measure adopted with respect to the purpose pursued by the investigating authority, as well as the verification of the necessary relevance link, where required.
Having said this, It was also noted that, even before, the omitted indication, of the essential elements relating to the fact in relation to which we proceed, would frustrate the possibility of verifying the existence of the so -called. smoke defeated, that, For the Supreme Court, represents an unavoidable prerequisite for the precautionary measures as personal as they are real, highlighting itself in this regard that, according to another nomophilactic orientation (as expressed, among the many, The Sez. 6 in the decision n. 56733 of 12/09/2018), The obligation to motivate must support, under penalty of nullity, The decree of evidentiary seizure regarding the reason why the assets can be considered the body of the crime or things relevant to it and the concrete evidentiary purposes pursued with the affixing of the real bond, while noting that such an obligation must be modulated by the public prosecutor in relation to the hypothesized fact, to the type of offense to which the fact is concretely traced, to the relationship that things present with the crime, as well as the nature of the good that is intended to seize, With the further clarification that "the decree of evidentiary seizure must necessarily be supported by suitable motivation that must not be limited to indicating the provisions of the violated law, ma, compatibly with the procedural phase and the nature of the investigation, must contain a concise description: a) of the criminal conduct hypothesized against the suspect with the indication of its coordinates of the temporal space; b) of the nature of the assets to be marked; c) of their relationship with this criminal hypothesis ", To then add that "only through the description of the criminal conduct, indeed, it is possible to verify both the evidentiary relevance link between this and the res and the justifying reason for the imposed constraint, preventing the means of searching for evidence from being unduly used for merely exploratory purposes not permitted by law" (Sez. WE, n. 10815 of 16/02/2021).
However, declining this hermeneutic criterion with respect to the specific case, The Ermellini believed how – not being (to their opinion) from the genetic provision no indication can be deduced regarding the elements of the fact in relation to which the seizure of the two mobile phones was ordered – the contested order should be annulled without postponement, arranging themselves, pursuant to Article. 621 c.p.p., the immediate return of the seized items to the appellant.
3. Conclusions
The decision in question arouses a certain interest since it clarifies how the decree with which the seizure of evidence is ordered must be motivated.
It is in fact stated in this ruling, on the basis of a nomophylactic orientation, albeit not uniform, that the decree of seizure of evidence must necessarily be supported by suitable motivation which must not be limited to indicating the provisions of the law violated, ma, compatibly with the procedural phase and the nature of the investigation, must contain a concise description: a) of the criminal conduct hypothesized against the suspect with the indication of its coordinates of the temporal space; b) of the nature of the assets to be marked; c) of their relationship with this criminal hypothesis ", To then add that "only through the description of the criminal conduct, indeed, it is possible to verify both the evidentiary relevance link between this and the res and the justifying reason for the imposed constraint, preventing the means of searching for evidence from being unduly used for merely exploratory purposes not permitted by law.
This provision, then, can be taken into due consideration whenever it is necessary to ascertain whether the decree, with which the public prosecution orders a seizure of evidence, has been correctly motivated (o meno) provided that, given the existence of a different interpretative direction, always elaborated by the Supreme Court in subject matter, less restrictive, it would be appropriate, in the opinion of the writer, that the United Sections intervene on this issue.
Anyway, the judgment regarding what is established in this sentence, precisely because it sets rigorous parameters according to which this type of seizure can be ordered, it can only be positive.
Recommended volume

Criminal procedure compendium

This text faces the criminal trial discipline in a complete and in -depth way, allowing an organic and systematic study of the subject.
The work is updated to the L. n. 7 of 2020 of reform of the discipline of interceptions, Al D.L. n. 28 of 2020 With regard to remote criminal process, penitentiary system and tracing of contacts and infections from Covid-19 and the most recent constitutional and legitimacy jurisprudence.

Giorgio SpangherEmeritus professor of criminal procedure at the University of Rome “La Sapienza”.Marco ZincaniLawyer representing the Court of Cassation, president and founder of Legal Training, school of excellence in preparation for the forensic exam present throughout the national territory. Teacher and trainer in twenty Italian cities, Ph.D., author of over four hundred direct contributions to the preparation of the State Exam. He is the creator of the wikilaw.it website and the Desiderio management software, the most advanced distance learning system for public exams and competitions. He is the author of the Forensic Exam series.

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Marco Zincani, Giorgio Spangher, 2021, Maggioli Editore

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