Yes to preventative seizure but only for things pertinent to the crime being investigated

It is not possible to arrange the seizure impediment of an asset even if this is likely to aggravate or prolong the consequences of a different crime or to facilitate the commission of other crimes, as there is a pertinence link between the asset and the crime being investigated.

This is what emerges from sentence 3 May 2023, n. 18271 (text at the bottom) of the Third Criminal Section of the Court of Cassation.

The case saw a person under investigation for the crime of cultivation and possession of narcotic substances, seeing his request for re-examination against the preventive seizure decree of a sum of money found in his home rejected. Although the ordinance held that the money subjected to seizure could not be considered pertinent to the crime under investigation, since it could not be considered as a product or profit of that crime, the Court confirmed the bond, deeming the conditions exist for proceeding with the impediment seizure former art. 321, comma 1, c.p.p., stating that, in relation to the amount of cash found and hidden in the attic of the house, it should be considered the result of previous drug sales. Furthermore, given that the ongoing cultivation of marijuana plants had reached the end of its life cycle, the Court of Review believed that that money could soon be used to set up a new drug cultivation.

According to the legitimacy jurisprudence, the so-called preventative seizure can be ordered in the presence of a double factual assumption of the pertinent relationship of the thing with the crime and of the concrete danger that its availability could facilitate or prolong the consequences (Criminal Cassation, Section IV, 14 October 2020, No. 29956), or may facilitate the commission of other crimes. In the absence of recognition of the appurtenant bond, the bond cannot be established on the basis of the mere assumption that the thing could be used to commit a crime (Criminal Cassation, Section V, 9 February 2010, n. 22612).

It is further clarified that where, as in the present case, money is involved, the precautionary measure can be applied to the extent that it is ascertained that it constitutes the product, profit or price of the crime, or served to commit it, or is concretely intended for the commission of the same (Criminal Cassation, Section VI, 20 March 2018, n. 17997).

In this case, the contested order had ruled out that the money was the product, price or profit of the crime under investigation, in the identified dual conduct of possession and cultivation of drugs, and had not identified any other pertinent connection with respect to said conduct, to be considered however, cease with the seizure of the drug; the Court, despite this, confirmed the measure considering it sufficient to recognize the periculum in mora with respect to the hypothesized use of that money for a new criminal activity of drug cultivation and, therefore, for another crime of the same type as those for which proceeded.

According to the stoats, the principle must be confirmed according to which the object of the impediment seizure cannot be anything even though it is likely to aggravate or prolong the consequences of a crime or to facilitate the commission of other crimes, it being necessary that it also concerns something that is somehow pertinent to the crime under investigation. Even on the existence of this constraint, the judge must provide an effective reasoning.

Criminal cassation, sentence n. 18271/2023