Court of Cassation, ruling no. 13783/2024: Confiscation for equivalent value between recovery function and punitive limits

With decision no. 13783 of September 26, 2024 (filed April 8, 2025), the Court of Cassation returns to the long-debated topic of confiscation for the equivalent value of the proceeds of a crime. The ruling – which annuls the order of the Preliminary Investigations Judge of Vicenza of June 23, 2023, with referral – offers valuable insights for legal professionals and businesses that fear the economic impact of this asset-based measure.

The core of the ruling

The confiscation for the equivalent value of the proceeds of a crime, just like direct confiscation, serves a recovery function and has a sanctioning function as it concerns assets lacking a direct link to the crime. It can only assume a punitive function if it deprives the recipient of assets exceeding the economic advantage they derived from the offense.

The Court, referencing the United Sections ruling G. E. (2015) and more recent pronouncements from 2022-2023, reiterates that the measure, provided for by articles 240 and 322-ter of the Criminal Code, aims primarily to recover illicit profits. However, it targets assets different from those directly linked to the crime, which inevitably gives it a sanctioning character. Only when the expropriated value exceeds the economic advantage does the confiscation become truly punitive, approaching the logic of a monetary penalty.

Regulatory and jurisprudential framework

• Art. 240 of the Criminal Code: mandatory/discretionary confiscation of assets linked to the crime.
• Art. 322-ter of the Criminal Code: extension of confiscation for equivalent value for crimes against public administration and corruption.
• Art. 111 of the Constitution and ECHR case law: necessity of proportionality and predictability of financial sanctions.

In the ruling under comment, the Court criticized the Preliminary Investigations Judge for failing to provide reasoning on the proportionality and necessary correspondence between the confiscated amount and the estimated profit. Since 2015, the United Sections have required the judge to precisely quantify the advantage obtained, even through presumptive criteria, before ordering confiscation for equivalent value. Ruling no. 13783/2024 reaffirms that the burden of providing reasoning cannot be evaded with the formula "Art. 240 of the Criminal Code mandates it.".

Practical implications for businesses and defense lawyers

For entities, especially after Legislative Decree 231/2001, confiscation for equivalent value represents a concrete risk. The reading of the decision reveals three operational focal points:

• Preventive due diligence: map risk areas to avoid illicit enrichment.
• Document financial flows: facilitate the judge's distinction between assets derived from the crime and "lawful" assets.
• Contest excess: demonstrate, where possible, that the seizure exceeds the profit actually obtained.

For the defense lawyers of M. G. (a pseudonym), the Court of Cassation has opened the way for a new referral judgment, in which the Court will have to precisely quantify the profit and provide reasoning for the choice of assets to be seized.

Commentary on the maxim

The maxim reminds us that confiscation is not a penalty in the strict sense, but it shares its severity. The balance between recovery and sanction is delicate: exceeding it means violating the principles of culpability and proportionality enshrined in Article 27 of the Constitution and by the ECHR (Engel case). With the ruling in question, the Supreme Court averts disguised punitive drifts, reaffirming the guarantor role of the trial judge.

Conclusions

Ruling no. 13783/2024 is part of a now consolidated but still evolving trend: confiscation for equivalent value is a hybrid measure, both for recovery and sanctioning, which only becomes punitive if unbalanced. For professionals and businesses, the keyword remains proportionality. Pending the referral judgment, the message from the Court of Cassation is clear: no motivational shortcuts, no "lump-sum" confiscation. Asset-based criminal law must remain anchored to criteria of substantial justice and effective protection of economic freedoms.