Preventive Seizure and Competence in Asset Management: The Cassation Court Ruling No. 31116/2025

Criminal law, with its procedural ramifications, is a constantly evolving field where clarity of norms and jurisprudential interpretation are of fundamental importance. An aspect of particular relevance, and often a source of uncertainty, concerns the management of assets subject to preventive seizure. Who is the competent judge to decide on the fate of such assets, their custody, and administration, especially in a regulatory context that has undergone significant changes over time? The Court of Cassation, with ruling no. 31116, filed on September 16, 2025, has shed light on this complex issue, offering important clarifications on the criteria for competence.

The Regulatory Framework of Preventive Seizure and the 2017 Reform

Preventive seizure is a real precautionary measure provided for by our Code of Criminal Procedure (art. 321 c.p.p.) which allows for the removal of assets from the defendant's disposition that could aggravate or prolong the consequences of a crime, facilitate the commission of other crimes, or are the proceeds, profits, or price of the crime itself. The management and administration of these assets, however, is not always straightforward. Before Law no. 161 of October 17, 2017, which amended Article 104-bis of the implementing provisions of the Code of Criminal Procedure, the regulations presented some grey areas.

The aforementioned reform introduced a specific provision for cases of seizure and confiscation related to organized crime offenses (those provided for by Articles 12-sexies of Legislative Decree no. 306 of 1992 and 51, paragraph 3-bis, of the Code of Criminal Procedure), attributing competence for the management of seized assets to the specialized section of the Tribunal. However, for preventive seizures ordered for "ordinary" offenses and, above all, for those preceding this legislative amendment, the question of competence to decide on requests for custody, management, and administration of assets remained open, generating considerable uncertainty among legal professionals.

The Case Submitted to the Cassation Court and its Resolution

Ruling no. 31116/2025 of the Court of Cassation, Sixth Criminal Section, presided over by Dr. D. A. G. and reported by Dr. P. R. B., addressed precisely an emblematic case. The defendant, M. G., had been involved in proceedings where a preventive seizure had been ordered. Subsequently, the Court of Appeal of Bari had approved the financial statements and paid the judicial administrator's fee, including assets that had been released from seizure by the first-instance ruling, which had become final. An appeal was filed against this decision.

The Supreme Court was called upon to determine which judge was competent to decide on requests relating to the custody, management, and administration of assets subject to preventive seizure, particularly when such seizure had been ordered before the 2017 reform and did not concern organized crime offenses. The Cassation Court clarified that, in such circumstances, competence lies not with the judge who issued the seizure order, but with the judge presiding over the merits of the case.

In matters of preventive seizure ordered prior to the amendment of Article 104-bis of the implementing provisions of the Code of Criminal Procedure by Law no. 161 of October 17, 2017, in relation to an offense not falling within those provided for by Article 12-sexies of Legislative Decree no. 306 of June 8, 1992, converted, with amendments, by Law no. 356 of August 7, 1992, and Article 51, paragraph 3-bis, of the Code of Criminal Procedure, the competence to decide on requests relating to the custody, management, and administration of the seized assets belongs to the judge presiding over the proceedings and not to the judge who issued the order, applying the general provisions on precautionary measures provided for by Articles 279 and 590 of the Code of Criminal Procedure and Article 91 of the implementing provisions of the Code of Criminal Procedure. (In application of this principle, the Court annulled without referral the contested order of the Court of Appeal insofar as it had approved the financial statements and paid the judicial administrator's fee also with reference to assets released from seizure by the first-instance ruling, which had become final on that point).

This maxim crystallizes a fundamental principle: when there is no specific derogation introduced by subsequent laws (such as the 2017 law for organized crime offenses), reference must be made to the general rules of the Code of Criminal Procedure regarding precautionary measures. Articles 279 and 590 c.p.p., along with Article 91 of the implementing provisions of the c.p.p., establish that the competent judge for matters concerning the execution of precautionary measures is the judge presiding over the proceedings. In this specific case, the Court of Appeal had erred in paying the judicial administrator's fee even for assets that had already been released from seizure by a final first-instance ruling, as the restraint on those assets had ceased, and consequently, the need for judicial administration.

Practical Implications and the Significance of the Principle

The Cassation Court's ruling is of great importance for several reasons:

• Jurisprudential Clarity: It eliminates an area of interpretive uncertainty, providing clear guidance on competence for "non-mafia" preventive seizures predating 2017.
• System Coherence: It reaffirms the validity of the general principles of the Code of Criminal Procedure in the absence of specific derogating provisions, ensuring coherence for the entire system of precautionary measures.
• Protection of Parties: It offers greater certainty to the parties involved (defendants, judicial administrators, interested third parties) regarding which judicial authority to approach for requests related to the management of seized assets.
• Procedural Efficiency: It helps to avoid conflicts of competence and delays in asset management, promoting a faster and more correct administration of justice.

The principle affirmed aligns with consistent precedents from the same Court of Cassation, such as rulings no. 50975 of 2019 and no. 28212 of 2019, confirming a consolidated jurisprudential trend.

Conclusions

Ruling no. 31116/2025 of the Court of Cassation represents a firm point in the complex matter of preventive seizure and the management of restrained assets. By recalling the importance of a careful analysis of the temporal context and the nature of the offense, it reiterates that, for "ordinary" seizures ordered before the 2017 reform, competence for the custody and administration of assets lies with the judge presiding over the merits of the case. This orientation not only ensures greater transparency and predictability for citizens and legal professionals but also strengthens the principles of legality and coherence of our legal system in a sector as sensitive as that of real precautionary measures.