Preventive Seizure and Third-Party Rights: Cassation Court Ruling 20393/2025

Preventive seizure is a powerful precautionary measure available to the judiciary, aimed at preventing the free disposal of an asset from aggravating or prolonging the consequences of a crime, facilitating the commission of other crimes, or if the asset itself is of illicit origin. However, when an asset is subjected to such a restriction, complex issues often arise, especially if the asset is registered to a party other than the main suspect or defendant. The Court of Cassation, with Ruling No. 20393 of 22/05/2025, has provided fundamental clarification on the standing of a third-party registered owner to challenge a preventive seizure, outlining boundaries and defense possibilities that warrant careful analysis.

Preventive Seizure: A General Overview

Provided for by Article 321 of the Code of Criminal Procedure, preventive seizure may be ordered when there is a fumus commissi delicti (i.e., the probable existence of a crime) and periculum in mora (the danger that the free disposal of the asset may prejudice the interests of justice). This measure can affect movable and immovable property, sums of money, or corporate shares, even when these belong to parties other than the suspect, provided that such assets are deemed to be connected to the crime.

Jurisprudence has long addressed the position of the third-party owner or registered owner of a seized asset. Generally, a third party completely unrelated to the crime can challenge the seizure by demonstrating their good faith and total absence of involvement in the illicit acts. But what happens when the third party, while not the perpetrator of the crime, is not entirely "unrelated" to its commission?

Ruling 20393/2025: The Right of the "Not Unrelated" Third Party

The decision of the Second Criminal Section of the Cassation Court, presided over by Dr. P. A. and with Dr. A. M. M. as rapporteur, focuses precisely on this delicate scenario. The ruling annulled with referral the decision of the Agrigento Court of Liberty, reaffirming a crucial principle regarding appeals against real precautionary measures. The case involved SISA SICILIA S.P.A., represented by L.R.P.T. S. G., a defendant in proceedings that led to the preventive seizure of an asset.

The focal point of the ruling is the following maxim, which we reproduce in full for its significance:

In matters of appeals against real precautionary measures, the third-party registered owner of an asset subjected to preventive seizure, who is not unrelated to the crime for which the restriction is ordered, is entitled to assert the non-existence of the "fumus commissi delicti," in terms of the absence of their conscious contribution to the commission of the crime. (Case concerning an appeal against a real precautionary measure).

This maxim is of paramount importance. Traditionally, the standing of a third party to appeal was often based on their complete unrelatedness to the crime. The Cassation Court, with this pronouncement, extends this standing also to those third parties who, while not entirely unrelated (perhaps due to a corporate or family relationship with the suspect, or for having had some, albeit indirect, connection to the facts), have not provided a "conscious contribution" to the commission of the illicit act. This means that even a party who has a link to the crime can contest the existence of the fumus commissi delicti, i.e., the validity of the criminal accusation justifying the seizure, by arguing that they did not consciously contribute to its commission.

The Importance of "Fumus Commissi Delicti" and Third-Party Protection

The ruling emphasizes a fundamental aspect of criminal and procedural law: the need to ascertain individual responsibility and conscious involvement. The possibility for a third party to contest the fumus commissi delicti is not a mere technicality but a substantial guarantee. This right allows the third party to demonstrate:

• That the alleged crime does not exist at all;
• That, even if the crime exists, the seized asset has no connection to it;
• That, even in the presence of a connection, the third party had no conscious contribution to the commission of the crime, and therefore cannot be indirectly "punished" by the seizure of their asset.

This principle aligns with the legislative references cited in the ruling, such as Articles 321 and 322 bis of the Code of Criminal Procedure, which govern preventive seizure and related appeals, as well as Article 104 bis of the Implementing Provisions. The jurisprudence of the Constitutional Court and the United Sections (such as Ruling No. 36959 of 2021) has always sought to balance the effectiveness of precautionary measures with the protection of fundamental rights, including those of third parties.

The present ruling strengthens the position of the third-party registered owner, offering an additional avenue for the protection of their property rights, even in complex contexts where links to the perpetrator of the crime might appear ambiguous. It is a call for the necessity of thorough investigation and rigorous proof of "conscious contribution" before restricting a person's assets.

Conclusions

Ruling No. 20393 of 2025 by the Court of Cassation represents an important precedent for Italian criminal law, particularly concerning real precautionary measures. It clarifies that the standing to challenge a preventive seizure is not limited to a completely unrelated third party but extends also to those who, while not entirely detached from the facts, can demonstrate that they did not provide a conscious contribution to the commission of the crime. This principle protects the right to property and economic freedom, ensuring that a precautionary restriction is always supported by actual and conscious involvement in the crime. For those in a similar situation, it is essential to seek expert legal advice to carefully evaluate the possibilities for appeal and the most effective defense strategy.