Commentary on Judgment No. 34290 of 2023: Confiscation of Proceeds and Compensatory Conduct

Judgment No. 34290 of May 17, 2023, by the Court of Cassation offers an important reflection on the dynamics of confiscation of criminal proceeds, particularly in relation to the defendant's reparative or compensatory conduct. This ruling, which partially overturned a previous judgment by the Court of Appeal of Ancona, highlights how the judge must consider the restitution made by the defendant when calculating the current proceeds at the time of its application.

The Legal Context of Confiscation

Confiscation is a patrimonial measure aimed at depriving the perpetrator of a crime of illicitly obtained profits. Italian legislation, particularly Article 240 of the Criminal Code, establishes the procedures for its implementation. In this specific case, the Court emphasized the need for an accurate assessment of the proceeds, taking into account the reparative actions undertaken by the defendant.

Confiscation of criminal proceeds - Defendant's reparative or compensatory conduct - Request for reduction or elimination of the "quantum" - Calculation net of restitution - Necessity - Reasons. In matters of confiscation, the trial judge, faced with the defendant's request to reduce or eliminate the "quantum" of criminal proceeds due to having undertaken compensatory or reparative conduct, must modulate the confiscatory measure based on the "current" proceeds at the time of its application and, therefore, net of any restitution made in the meantime by the offender to the victim and accepted by the latter, deducting that portion of benefit that no longer constitutes illicit patrimonial increase.

Implications of the Judgment

The judgment under review highlights a crucial aspect of jurisprudence on confiscation: the possibility of reducing or eliminating the "quantum" of illicit proceeds based on reparative conduct. This principle not only represents a step forward towards fairer justice but also encourages defendants to compensate victims, promoting a restorative approach to criminal justice.

• Assessment of current proceeds at the time of confiscation.
• Consideration of restitution made by the defendant.
• Recognition of compensatory conduct as mitigating factors.

Conclusions

In conclusion, Judgment No. 34290 of 2023 represents a significant evolution in the field of confiscation of illicit proceeds. It underscores the importance of an approach that considers not only illicit actions but also any reparations made by the defendant. This could not only facilitate greater respect for victims but also encourage more responsible behavior from defendants within a legal system that seeks to balance punishment and reparation.