Seizure and Confiscation ex Art. 240-bis c.p.: Cassation n. 31870/2025 Clarifies Appeal Limits for Fictitious Third-Party Owners

The fight against illicit assets is a fundamental pillar in combating crime. Preventive seizure aimed at confiscation, especially the extended form provided for by Article 240-bis of the Penal Code, plays a crucial role. But what are the defense margins for a third party who finds themselves fictitiously registered as the owner of assets subject to such measures? The Court of Cassation, with ruling no. 31870 of 2025, has provided a decisive interpretation on the appeal limits for these individuals, precisely outlining the scope of their challenges.

The Context: "Extended" Confiscation and Third Parties

Preventive seizure (art. 321 c.p.p.) is a precautionary measure that removes the availability of assets related to a crime. When aimed at confiscation, it anticipates definitive forfeiture. Article 240-bis c.p. provides for "extended confiscation" or "confiscation for disproportionality," allowing the confiscation of assets whose origin the convicted person cannot justify, and whose value is disproportionate to their declared income. This measure also affects assets formally registered to third parties, provided that fictitious intermediation is proven. It is on this point that the Cassation ruling brings clarity.

The Cassation Ruling and the Defense of the "Nominee"

Ruling no. 31870 of 2025, issued by the Fifth Criminal Section of the Cassation Court (President L. P., Rapporteur E. M. M.), addresses the position of the third-party owner of assets subject to preventive seizure aimed at confiscation ex art. 240-bis c.p. The case concerned the defendant R. A. and a partial annulment with referral to the GIP of the Court of Naples.

In cases of seizure aimed at confiscation ex art. 240-bis of the Penal Code concerning assets deemed fictitiously registered to a third party, the latter can only claim the actual ownership and title to the seized assets, but is not entitled to contest the prerequisites for the application of the measure, including the temporal reasonableness between the acquisition of the asset and the commission of the crime that legitimizes forfeiture, and the disproportionality between the value of the confiscated asset and the income declared by the convicted person.

This ruling is unequivocal: the "nominee" third party cannot contest the prosecution's reasons against the principal subject. Their sole defense is to prove they are the real and legitimate owner of the asset, demonstrating that they acquired it through lawful means and without any fictitious intermediation. They are not permitted to scrutinize the grounds that justify confiscation against the convicted person.

Appeal Limits: What Can and Cannot Be Contested

The Supreme Court draws a clear line for third-party challenges:

• Admissible:
  • Proof of actual ownership and title to the assets. The third party must prove they acquired the asset independently and legitimately, with their own resources, and that they are the true owner, with no connection to the convicted person's illicit activity.
• Precluded:
  • The prerequisites for the application of the measure (e.g., absence of the underlying crime or general seizure requirements).
  • The temporal reasonableness between the acquisition of the asset and the commission of the crime.
  • The disproportionality between the value of the confiscated asset and the income declared by the convicted person.

This approach is consistent with the nature of extended confiscation, which aims to target illicit wealth regardless of its formal registration. The third party is called upon to demonstrate their complete detachment from the illicit patrimonial activity, not to defend the convicted person.

Conclusions

Ruling no. 31870 of 2025 by the Cassation Court consolidates the prevailing interpretation regarding confiscation ex art. 240-bis c.p., clarifying that the defense of a fictitious third-party owner is limited to proving their actual and legitimate ownership of the assets. This pronouncement strengthens the effectiveness of forfeiture measures against assets of illicit origin, making evasion through fictitious intermediation more difficult. For legal professionals and anyone in similar situations, it serves as a reminder of the need for careful verification of the origin and real ownership of assets, in a context where patrimonial transparency is increasingly required.