Professional Fees and Confiscated Assets: The Court of Cassation and Judgment No. 26366 of 2025

Asset-based preventive measures are a fundamental tool in the fight against organized crime and the illicit accumulation of wealth. However, their impact is not limited to directly affected individuals but often extends to third parties who hold rights or claims over assets subject to confiscation. It is within this delicate balance between the State's interest in recovering illicit assets and the protection of the rights of bona fide third parties that the recent ruling of the Court of Cassation, Judgment No. 26366, filed on July 18, 2025, intervenes, offering crucial clarifications for professionals.

The Context of Asset-Based Preventive Measures

Asset-based preventive measures, primarily governed by Legislative Decree of September 6, 2011, No. 159 (the Anti-Mafia Code), aim to remove assets acquired or used illicitly from the control of criminal organizations. This is a procedure independent of criminal proceedings but with profound economic and social implications. Confiscation, in particular, transfers ownership of assets to the State, making it complex for third-party creditors to assert their claims. The Court of Cassation, with Judgment No. 26366 of 2025, rapporteur D. G. P., addressed a matter of particular significance concerning the admissibility of claims for professional services rendered on assets subject to confiscation, when the debt is joint and several and not all debtors have been affected by the measure.

Judgment No. 26366/2025: A Key Principle for Creditors

The Supreme Court's decision is of extreme importance for understanding the limits within which a third-party creditor can hope to recover their claim on confiscated assets. The ruling's headnote unequivocally clarifies the jurisprudential position:

In matters of asset-based preventive measures, a third party holding a claim for professional services against multiple debtors, jointly and severally liable for the entire amount, cannot obtain the admission of the claim to the estate if some of the debtors are not affected by the preventive measure. (In its reasoning, the Court stated that the recognition of a claim on confiscated assets constitutes an exceptional circumstance, limited solely to cases where the creditor cannot obtain protection through the seizure of assets belonging to parties outside the proceedings).

This principle established by the Court of Cassation, in the specific case involving defendant C. A. and the rejection of the appeal against a decision of the Court of Santa Maria Capua Vetere, highlights the exceptional nature of recognizing a claim on confiscated assets. The Court reiterated that admission to the estate in such proceedings is not an automatic right for the third-party creditor but a limited possibility. Specifically, if the creditor has the option to seize assets belonging to other debtors who, despite being jointly and severally liable, have not been involved in the preventive measure, they must primarily pursue this avenue. Only if this path is precluded or ineffective can the possibility of requesting the admission of the claim on the confiscated assets arise. This orientation aligns with previous rulings of the same Court (as referenced by Rv. 269964-01 of 2017 and Rv. 277095-01 of 2019), which have consistently emphasized the subsidiary and residual nature of third-party protection on confiscated assets.

Practical Implications for Professionals

The Court of Cassation's ruling has a significant impact on lawyers, accountants, and other professionals who find themselves holding claims for their services. Here are some practical implications:

• Verification of the status of all debtors: It is crucial to ascertain whether all jointly and severally liable parties are affected by preventive measures. The presence of even one debtor "free" from the measure can preclude admission to the estate.
• Exhaust all other avenues for debt recovery: Before targeting confiscated assets, the professional must demonstrate that they have unsuccessfully attempted to recover their claim by seizing the assets of debtors not subject to preventive measures.
• Subsidiary nature of claims on confiscated assets: The recognition of a claim on confiscated assets is not a primary right but a last resort protection, applicable only when no other avenues are available to satisfy the creditor's claim.

This requires professionals to exercise greater diligence in the intake phase of assignments and in managing debt recovery, especially in contexts that may have connections to asset-based preventive measures.

Conclusions

Judgment No. 26366 of 2025 by the Court of Cassation, presided over by A. E., reaffirms a cardinal principle within the scope of asset-based preventive measures: the protection of third-party creditors is guaranteed, but with precise limitations and from a perspective of subsidiarity compared to the possibility of recovering the debt from parties not affected by the measure. This ruling serves as an important warning to all professionals, who must operate with the awareness that access to the estate of confiscated assets represents an exceptional circumstance. Understanding and correctly applying these principles is essential for navigating a complex area of law where the fight against crime intersects with the protection of individual rights, requiring careful evaluation of debt protection strategies.