Preventive Seizure and Confiscation ex Art. 322-ter of the Italian Criminal Code: Judgment No. 22073 of 2023

The recent judgment No. 22073 of March 17, 2023, by the Court of Cassation offers interesting insights for understanding the discipline of preventive seizure aimed at confiscation. This decision precisely clarifies the modalities of applying the precautionary measure when multiple individuals are involved in the same crime, highlighting the principle of solidarity that governs joint participation.

Legal Context

Preventive seizure, regulated by Art. 322-ter of the Italian Criminal Code, is a tool through which the judicial authority can order the seizure of assets that are the object of a crime, with the aim of subsequent confiscation. The judgment in question addresses the issue of the applicability of such a measure against a single participant, even if the illicitly obtained sums may have been received by other co-perpetrators of the crime. This aspect is crucial, as the Court has established that the seizure can be ordered for the entire amount of the profit, even if part of it has already been received by others.

Judgment's Headnote

Preventive seizure aimed at confiscation ex Art. 322-ter of the Italian Criminal Code - Plurality of participants in the same crime - Possibility of ordering the measure, for the entire amount of the profit, against a single participant - Existence - Sums received by other participants in the crime - Irrelevance - Reasons - Case law. In the context of preventive seizure for confiscation ex Art. 322-ter of the Italian Criminal Code, the restraint can be ordered against one of the participants in the crime, for the entire amount of the price or profit thereof, even if the sums of illicit origin have been received, in whole or in part, by other participants, without prejudice to any distribution among them, which constitutes an internal matter for them, lacking criminal relevance, given the principle of solidarity that governs the discipline of joint participation and which, consequently, implies the imputation of the entire criminal action to each agent, as well as the nature of confiscation by equivalent value, to which a predominantly punitive character must be recognized. (In application of the principle, the Court declared the appeal inadmissible by the suspect who claimed it was undisputed that he had not received any profit from the crime under Art. 640-bis of the Italian Criminal Code).

This headnote highlights the robustness of the principle of solidarity that informs the discipline of joint participation, according to which each participant is responsible for the entire profit of the crime. This implies that, in the event of seizure, it is not necessary for the subject against whom the measure is applied to have directly received illicit sums; responsibility is shared, and the criminal action is imputed to each participant.

Conclusions

Judgment No. 22073 of 2023 by the Court of Cassation represents a significant step forward in clarifying the regulations concerning preventive seizure and the confiscation of criminal profits. It reiterates the importance of collective responsibility in cases of joint participation, clarifying that seizure can affect a single participant for the entire profit, even if other individuals participated in the crime. This decision strengthens the effectiveness of precautionary measures in combating crime and offers new interpretative perspectives for legal professionals operating in this field.