Prevention Confiscation and Third-Party Claims: The Court of Cassation Clarifies "Certain Date" (Judgment No. 26367/2025)

Asset prevention measures often intersect with the protection of third-party rights. Judgment No. 26367 of 03/06/2025 by the Court of Cassation offers clarifications on establishing the "certain date" of claims preceding seizure within the scope of prevention confiscation. This is a crucial decision for practitioners and anyone involved in proceedings concerning assets subject to forfeiture measures.

The Context of Asset Prevention Measures

Prevention measures, such as confiscation governed by Legislative Decree 159/2011 (Anti-Mafia Code), aim to remove assets from individuals deemed socially dangerous. However, it is essential to protect the legitimate rights of third parties who, in good faith, hold claims on the confiscated assets. Here, the concept of "certain date," as provided for by Article 52 of Legislative Decree 159/2011, is fundamental for the enforceability of such claims against the proceedings.

The "Certain Date" and Judgment 26367/2025: A Beacon in Jurisprudence

The judgment, presided over by A. E. and with G. E. A. as Rapporteur, focuses on verifying the "certain date" of claims. The delegated judge, when examining third-party claims, must conduct a rigorous analysis. The Court of Cassation, rejecting the appeal by P. T. against the decision of the Court of Santa Maria Capua Vetere, reiterated a core principle:

In matters of asset prevention measures, the delegated judge, tasked with verifying third-party claims against assets subject to prevention confiscation for the purpose of establishing the existence of a certain date for claims prior to seizure pursuant to art. 52 of Legislative Decree 6 September 2011, no. 159, must consider all hypotheses contemplated by art. 2704 of the Civil Code and, therefore, not only typical events, such as registration or reproduction in a public deed, but also all those unforeseen events that allow for the certain determination of the document's prior creation. (In its reasoning, the Court specified that, to give full evidentiary effect to the content of invoices, it is necessary for them to have been accepted by the recipient, at least through conclusive conduct, and to have been recorded in accounting records, without prejudice to the judge's free discretion regarding the reliability of the latter).

This maxim is illuminating. Article 2704 of the Civil Code lists the ways to attribute a certain date to a private writing. The Court of Cassation clarifies that the judge must not limit themselves to "typical events" but must consider any fact that, with equal certainty, proves the document's anteriority to the seizure. This broadens evidentiary possibilities while maintaining a high standard of certainty.

For invoices and accounting records, the Court provided specific guidance:

• Invoices must have been accepted by the recipient, even through conclusive conduct.
• They must have been duly recorded in accounting records (arts. 2709 and 2710 of the Civil Code).

Even with these elements, the judge retains free discretion regarding the reliability of the records, to prevent fraud or collusion.

Practical Implications and Third-Party Protection

The judgment has considerable scope. For third-party creditors, it is a clear guide on evidence: it is not enough to present an invoice, but it is essential to prove acceptance and regular recording in accounting records. For legal practitioners, the ruling confirms the need for a thorough and non-formalistic analysis of documents, balancing the effectiveness of prevention measures with the protection of good-faith third-party rights, in line with previous case law (e.g., No. 22618 of 2022).

Conclusions

Judgment No. 26367/2025 is an important piece in the matter of asset prevention measures. By reiterating the importance of Article 2704 of the Civil Code and providing directives on establishing the "certain date" of claims, the Court balances the need to seize illicit assets with the protection of good-faith third parties. Its application will require careful judicial evaluation, promoting legal certainty and combating abuse.