Preventive Seizure of Entities: The Court of Cassation (Judgment No. 23910 of 2025) and the Incompatibility of the Legal Representative

The recent ruling by the Court of Cassation, Judgment No. 23910 of 2025, is part of an increasingly complex legal framework, that of the administrative liability of entities arising from criminal offenses (Legislative Decree 231/2001). This decision offers fundamental clarification on the admissibility conditions for real precautionary appeals, particularly concerning preventive seizure against a legal entity. Let's analyze together the key points of this important ruling and its practical implications for companies and their legal counsel.

Preventive Seizure and "231" Liability: A General Overview

Legislative Decree 231/2001 introduced into our legal system the criminal liability of legal entities for offenses committed in their interest or for their benefit by top-level individuals or subordinates. Among the precautionary measures applicable to entities, preventive seizure plays a crucial role, aiming to prevent the free disposal of assets related to the offense from aggravating or prolonging the consequences of the illicit act. Consider, for example, the seizure of sums of money or instrumental assets linked to corporate, environmental, or tax offenses. Its purpose is to ensure that the entity cannot derive further benefit from the offense or that the means to commit it are no longer available. Defense against such measures is obviously of paramount importance for a company's operational continuity.

Incompatibility of the Legal Representative: The Crucial Point of the Judgment

Judgment No. 23910 of 2025 by the Court of Cassation addresses a delicate and highly practical issue: who can validly file an appeal for review against a preventive seizure ordered against an entity? The Court, presided over by A. P. and with F. F. as rapporteur, declared inadmissible the request for review filed by the lawyer appointed by the "ad litem" prosecutor of the entity, when the latter was designated by the entity's legal representative, if the legal representative is under investigation or accused of the predicate offense. This scenario creates a clear conflict of interest, or rather, incompatibility. The legal representative, as an individual involved in the offense, cannot validly designate who will represent the entity in a proceeding where they are, indirectly, opposed to the entity itself. The rationale is to prevent the entity's defense from being compromised by the personal interests of its representative, which may not align with those of the legal entity.

In matters of real precautionary appeals, a request for review of a preventive seizure ordered against an entity is inadmissible if it is filed by the lawyer appointed by the entity's "ad litem" prosecutor, who was, in turn, designated by the entity's legal representative, who is under investigation or accused of the offense from which the administrative offense derives, as the latter is in a situation of incompatibility.

This maxim crystallizes a fundamental principle of criminal procedural law and entity liability. The Court emphasizes that, to ensure a full and effective defense of the entity (S.R.L. Z. in the case in question, represented by L.R. C. M.), it is essential that whoever acts on its behalf is free from any conflict. If the legal representative is also under investigation for the offense that gave rise to the entity's administrative offense, their position is compromised. They therefore cannot validly confer powers of procedural representation to a special attorney, who in turn appoints the defense counsel. This original defect renders the appeal inadmissible, precluding the entity from asserting its rights in the review phase. Reference is made here to Article 96 of the Code of Criminal Procedure on the appointment of defense counsel, but also to Articles 322 and 324 of the Code of Criminal Procedure, which govern the review of real precautionary measures, and Articles 34, 39, and 52 of Legislative Decree 231/2001, which regulate proceedings against entities and related defense guarantees.

Practical Implications and Strategies for Corporate Compliance

The Cassation Court's decision requires companies and their legal advisors to carefully consider how to manage crisis situations involving "231" liability. To avoid the inadmissibility of appeals, it is crucial to adopt adequate preventive and reactive strategies. Here are some key points:

• Evaluate the legal representative's position with extreme care: if they are under investigation or accused of the predicate offense, it is necessary for the appointment of the special "ad litem" attorney for the entity to be made by a different body free from incompatibility, such as the board of directors or a managing director not involved.
• Strengthen the Organization, Management, and Control Models (MOGC) pursuant to Legislative Decree 231/2001, providing for clear procedures for managing conflicts of interest and for appointing legal or procedural representatives in the event of investigations.
• Ensure a clear separation of roles and interests between the individual (legal representative) and the legal entity (entity), especially in contexts of criminal investigation.
• Promptly consult professionals specialized in corporate criminal law and "231" liability to correctly navigate these procedural complexities.

Conclusions: A Warning for the Protection of the Entity

Judgment No. 23910 of 2025 is not just a technical ruling, but an important warning about the need to ensure the integrity and autonomy of the entity's defense in criminal proceedings. The Court of Cassation reiterates that procedural guarantees must also be ensured for legal entities, but that these guarantees can be invalidated by procedural defects related to situations of incompatibility. Understanding and correctly applying these principles is fundamental to protecting the entity's interests and preventing unpleasant surprises during the appeal phase of real precautionary measures.