Vocazione polifunzionale del sequestro penale e problematica valutazione del fumus commissi delicti.

The matter of the research deals with the elements of fact and law which allow garnishments and other forms of attachment in the Italian criminal procedure. Particularly, it refers to the fumus commissi delicti element, applied due to the purpose and the rights involved in the specific measure ordered by the Court. The dissertation starts with a chronological analysis (Criminal Procedure Code of 1930) in order to make clear how the actual forms of seizure and confiscating originate in the Italian criminal procedure. They are rather distinguishable, according to their aim, in seizure for evidentiary purposes (Criminal Procedure Code, Article 253), conservative seizure (Criminal Procedure Code, Articles 316 et seq.) and preventive seizure (Criminal Procedure Code, Articles 321 et seq.). All the measures of attachment affect the fundamental rights, as the private propriety and the economic freedom (Constitution, Articles 41 and 42) and the freedom of expression (Constitution, Article 21). The legislative power shall find a balance between the protection of Constitutional rights and the necessity of ensuring the protective and evidentiary purposes of a measure limiting rights. The analysis focuses on the peculiarity of the fumus, the most important element in balancing fundamental rights with the purposes of criminal procedure. In case of seizure for evidentiary purposes, the fumus determines whether a criminal offence may figuratively exist, since the prior necessity is to perpetuate secure evidence. In case of preventive seizure, as the jurisprudence of the Supreme Court of Cassation appoints, the mere verification of the fumus is not enough. The attachment has the same enforcement of the personal coercive measures, since it affects the fundamental rights, in order to prevent the deterioration in the consequences of a crime or the commission of any further criminal offence.The peculiarity of the fumus shall be meant not in an inquiry view, but in the sense of the “serious evidence of a crime”, granting an effective control upon the Public Prosecutor’s suit and the exercise of the rights of defence.