законодательной базы данных

Article 321

Purpose of preventive seizure

1. When there is a risk that the free use or possession of things relevant to the offence might increase or extend the consequences of this offence or facilitate the commission of other offences, the Court holding jurisdiction to decide on the merits of the case, upon request of the Public Prosecutor, shall order preventive seizure by reasoned decree. Before the exercise of the criminal action, the order shall be issued by the Pre-trial Investigation Judge.

2. The court may also order the preventive seizure of the things whose confiscation is permitted.

2-bis. In the course of the criminal proceedings for the offences set forth in Chapter I, Title II, Book II of the Criminal Code, the court shall order the seizure of the things whose confiscation is permitted.

3. Preventive seizure shall immediately be revoked upon request by the Public Prosecutor or the person concerned when the requirements for its application under paragraph 1 are no longer satisfied also as a result of subsequent events. During preliminary investigations, the Public Prosecutor shall do so by reasoned decree which shall be served on those entitled to appeal. If there is a request for revocation by the person concerned, the Public Prosecutor, when he considers that the request should even in part be dismissed, shall transmit it to the court and submit specific requests including the elements underlying his/her representations. The request shall be transmitted not later than the day following that on which it has been filed with the Clerk’s Office.

3-bis. In the course of preliminary investigations, when it is not possible to await the judge’s order due to the matter of urgency, preventive seizure shall be ordered by reasoned decree by the Public Prosecutor. In the same cases, prior to the intervention of the Public Prosecutor, preventive seizure shall be carried out by Judicial Police officers who shall transmit the report to the Public Prosecutor of the place where preventive seizure has been carried out within the following forty-eight hours. If the Public Prosecutor does not order the return of the seized things, he/she shall request the Judge’s confirmation and the issuance of a decree under paragraph 1 within forty-eight hours of the preventive seizure, if ordered by the Public Prosecutor himself, or of receipt of the report if preventive seizure has been carried out upon initiative of the Judicial Police.

3-ter. Preventive seizure shall become ineffective if the time limits under paragraph 3 bis are not complied with or the Judge does not issue the confirmation order within ten days of receipt of the request. A copy of the order shall immediately be served on the person from whom the things have been seized.

Article 322

Purpose of preventive seizure

1. The defendant and his/her defence lawyer, the person from whom the things have been seized and the person who would be entitled to their restitution may make a request for review, including on the merits of the case, of the seizure order issued by the Court, under Article 324.

2. The request for review shall not suspend the enforcement of the measure.

Article 322-bis

Appeal

1. Apart from the cases set forth in Article 322, the Public Prosecutor, the defendant and his/her defence lawyer, the person from whom the things have been seized and the person who would be entitled to their restitution, may lodge an appeal against preventive seizure orders and against the decree of revocation of seizure issued by the Public Prosecutor.

1-bis. The decision on the appeal shall be made by the court, sitting as a panel of judges, of the chief town of the province in which the office issuing the measure is based. (90) (90a)

2. The appeal shall not suspend the enforcement of the measure. The provisions of Article 310 shall apply insofar as they are compatible.

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UPDATE (90) Legislative Decree of 19 February 1998, no. 51, stipulates (by Article 247, paragraph 1) that "This Legislative Decree shall enter into force on the day following its publication in the Official Gazette of the Italian Republic and it shall be effective after the time limit prescribed by Article 1, paragraph 1, letter r), of Law of 16 July 1997, no. 254, except for the provisions of Article 17, Article 33, paragraph 1, Article 38, paragraph 1 and Article 40, paragraphs 1 and 3."

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UPDATE (90a) Legislative Decree of 19 February 1998, no. 51, as amended by Law of 16 June 1998, no. 188, stipulates (by Article 247, paragraph 1) that "This Legislative Decree shall enter into force on the day following its publication in the Official Gazette of the Italian Republic and it shall be effective starting from 2 June 1999, except for the provisions of Article 17, Article 33, paragraph 1, Article 38, paragraph 1 and Article 40, paragraphs 1 and 3."

Article 323

Loss of effectiveness of preventive seizure

1. By a judgment of acquittal or nolli prosequi, even if it may still be appealed, the court shall order that the seized things be returned to those entitled thereto, unless it must order confiscation under Article 240 of the Criminal Code. The decision shall immediately be enforceable.

2. If there are several identical items of a seized thing and this is relevant for evidentiary purposes, the court, even after a judgment of acquittal or nolli prosequi was challenged by the Public Prosecutor, shall order that the seizure of only one item be maintained and the other ones returned.

3. If a judgment of conviction has been delivered, the effects of the seizure shall continue if the confiscation of the seized things has been ordered.

4. Restitution shall not be ordered if the court, upon request of the Public Prosecutor or the civil party to the proceedings, orders that seizure be maintained of the things owned by the defendant or the person with civil liability to guarantee the claims referred to in Article 316.