Preventive Confiscation and Evidentiary Burdens: The Cassation Ruling n. 19468/2025 and the Rights of the Third-Party Creditor

In the complex scenario of patrimonial prevention measures, the protection of third-party creditors is crucial. The recent ruling of the Court of Cassation n. 19468, filed on May 26, 2025, offers fundamental clarifications, outlining a rigorous framework for the opposability of credits prior to seizure. This pronouncement is essential for understanding the evidentiary burdens on the third party and the dynamics with judicial administration.

Patrimonial Prevention Measures: Context and Objectives

Patrimonial prevention measures (Legislative Decree no. 159/2011, the "Anti-Mafia Code") are tools to remove illicit assets from organized crime. Seizure and confiscation aim to restore legality. Assets under restraint are often active businesses, whose management is entrusted to judicial administration to preserve their value and ensure continuity, protecting legitimate economic relationships.

The Cassation's Ruling: Unambiguous Evidentiary Rigor

Ruling n. 19468/2025 addresses the burden of proof for the third-party creditor. The Court establishes that the third party cannot limit themselves to invoking the mere existence of the credit in the accounting records of the seized company, even if such entries are repeated and the company is authorized to continue its activity. The reason lies in the inapplicability of Article 2709 of the Civil Code. The need to protect the integrity of the assets prevails over the presumption of truthfulness of internal records.

In the context of patrimonial prevention measures, the third-party creditor, for the purpose of opposability to the procedure of credits prior to seizure, must provide proof of their right even if it results from the records of the company subject to restraint with repeated accounting entries during the authorized business management pursuant to art. 41, paragraph 1-sexies, legislative decree of September 6, 2011, no. 159, as the provisions of art. 2709 of the Civil Code are not applicable in such cases. (In its reasoning, the Court specified that the judicial administration authorized to continue business activity remains a third party, except for cases concerning essential and long-term commercial relationships, provided for, respectively, by articles 54-bis and 56 of the aforementioned legislative decree, with respect to debit and credit relationships arising prior to the management).

For the third party, the burden of proof is onerous and requires external documentation. The credit must be supported by objective and verifiable elements, such as:

• Formally stipulated and registered contracts;
• Bank documentation (transfers, account statements) attesting to financial flows;
• Commercial correspondence (certified emails, PEC) confirming the existence and validity of the relationship;
• Invoices and receipts issued and paid (or with proof of non-payment) that are not merely internal "entries".

Judicial Administration and Exceptions

The Cassation clarifies that judicial administration, although authorized to continue the activity (art. 41, paragraph 1-sexies, Legislative Decree no. 159/2011), remains a "third party" with respect to pre-existing debit and credit relationships. This prevents potentially fictitious credits from compromising the effectiveness of the measure.

However, the Court recognizes exceptions (Articles 54-bis and 56 of Legislative Decree no. 159/2011). These provisions provide for the recognition of essential and long-term commercial relationships, to prevent the measure from paralyzing the legitimate economic activity of the company, protecting good-faith third parties. The administration may be required to recognize and fulfill pre-existing obligations, always in compliance with legality and transparency.

Conclusions and Practical Advice

Ruling n. 19468/2025 reiterates the need for a rigorous approach in managing credits in the context of patrimonial prevention measures. For creditors, the message is clear: mere accounting entries are not sufficient. It is essential to have robust and unequivocal external documentation attesting to the origin and validity of the right. For legal professionals and businesses, this ruling underscores the importance of thorough due diligence and impeccable contractual and documentary management, to balance the fight against crime with the safeguarding of legitimate commercial relationships.