Commentary on Judgment No. 19081 of 2022: Preventive Seizure and Availability of Assets

Judgment No. 19081 of November 30, 2022, filed on May 5, 2023, by the Court of Cassation, serves as a reference point for understanding the dynamics of preventive seizure aimed at confiscation for equivalent value. In particular, the case concerns the availability of assets by the defendant and the necessary means of proof to ascertain it. This article will analyze the main aspects of the judgment and its implications for Italian criminal law.

The Legal Context of Preventive Seizure

Preventive seizure is a legal instrument aimed at ensuring the successful administration of justice, preventing the offender from removing or dispersing assets potentially subject to confiscation. According to Article 321 of the Code of Criminal Procedure, seizure is permitted in the presence of concrete precautionary needs.

The judgment under review, issued by the Court of Cassation, clarifies that a delegation to operate on a bank account by a third party is not sufficient to demonstrate the availability of funds by the defendant. This aspect is crucial for understanding how jurisprudence is evolving regarding the burden of proof in such situations.

The Ruling of the Judgment

Preventive seizure aimed at confiscation for equivalent value - Assets available to the defendant - Delegation to operate on a third party's bank account - Sufficiency to establish availability of deposited sums - Exclusion - Reasons - Case law. In the context of preventive seizure aimed at confiscation for equivalent value, a delegation to operate issued by the account holder to the defendant, even if not characterized by limitations, is not sufficient "ex se" to demonstrate the latter's full availability of the deposited sums. Further factual elements are required to support the judgment of reasonable probability regarding the free usability of the sums by the delegate. (Case law concerning confiscation for equivalent value ordered following a conviction for financial violations).

Practical Implications of the Judgment

The decision of the Court of Cassation highlights the need for rigorous assessment regarding the availability of assets. Below are some key points emerging from the judgment:

• Delegation to operate on a bank account does not automatically imply availability of funds for the defendant.
• Additional evidence must be provided to demonstrate the free usability of the sums by the defendant.
• The judgment aligns with established jurisprudence that requires concrete proof in matters of seizure and confiscation.

Conclusions

In conclusion, judgment No. 19081 of 2022 represents an important milestone in Italian jurisprudence regarding preventive seizure and confiscation for equivalent value. It underscores the importance of an accurate assessment of asset availability, avoiding simplifications that could compromise the effectiveness of preventive measures. Legal practitioners must consider this orientation to ensure the correct application of the law and the safeguarding of defendants' rights.