Confiscation of Fictitiously Registered Assets: Commentary on Judgment No. 35669 of 2023

Judgment No. 35669 of May 11, 2023, issued by the Court of Cassation, addresses a highly relevant topic in the Italian legal landscape: the confiscation of assets fictitiously registered to third parties. This measure is often applied in the context of preventive measures against individuals deemed dangerous to public order. In this article, we will analyze the main aspects of this judgment, seeking to clarify the meaning and implications of its provisions.

Context of the Judgment

The case under review concerned the confiscation of assets belonging to an individual, A. J., which were deemed fictitiously registered to a third party. The Court established that the third party can only claim actual ownership and title to the confiscated assets, without the possibility of contesting the legitimacy of the confiscation measure. This principle, of fundamental importance, delimits the scope of action for the third party, who cannot interfere with issues concerning the dangerousness of the proposed individual or the disproportion between the value of the assets and the declared income.

Analysis of the Ruling and Legal Implications

Confiscation of assets fictitiously registered to a third party - Legitimacy and interest of the third party to contest the prerequisites for applying the measure to the proposed individual - Exclusion - Reasons. In the case of a preventive confiscation concerning assets deemed fictitiously registered to a third party, the latter can exclusively claim actual ownership and title to the assets subject to the restraint, fulfilling the relevant burden of allegation, but is not legitimized to argue that the asset is actually owned by the proposed individual, as they are entirely extraneous to any legal issues concerning the prerequisites for applying the measure against them – such as the condition of dangerousness, the disproportion between the value of the confiscated asset and the declared income, as well as the origin of the asset itself – which only the aforementioned individual can have an interest in asserting.

This ruling clarifies that the third party has the right to prove they are the legitimate owner of the assets, but cannot contest the confiscation measure as such. The reasons are clear: the third party is extraneous to the dynamics of the measure, which is strictly linked to the conduct of the proposed individual and their dangerousness. Italian legislation, particularly Legislative Decree 159/2011, Article 10, establishes the basis for preventive confiscation, highlighting how individual responsibility and asset ownership are key elements in the decision-making process.

Conclusions

Judgment No. 35669 of 2023 represents an important clarification regarding the confiscation of assets fictitiously registered to third parties, emphasizing the limits of their legitimacy in contesting preventive measures. It is crucial for the individuals involved to understand the importance of demonstrating their ownership, without, however, delving into issues related to the dangerousness of the proposed individual. With this ruling, the Court of Cassation has confirmed the need to safeguard the integrity of preventive measures, while simultaneously protecting the rights of the legitimate owners of the assets. The clarity of this judgment will help guide future decisions in this area, ensuring a balance between public safety and the protection of individual rights.