Prevention Confiscation of Indivisible Assets: Commentary on Judgment No. 21126 of 2023

Judgment No. 21126 of March 30, 2023, issued by the Court of Cassation, offers important clarifications regarding the prevention confiscation of indivisible assets. The ruling focuses on the application for assignment filed by a third co-owner in good faith, establishing that it is not necessary to hold a majority share of the asset to have the request granted.

Regulatory and Jurisprudential Context

Prevention confiscation, regulated by Legislative Decree No. 159 of 2011, has the primary objective of preventing the commission of particularly serious crimes by depriving individuals of assets acquired unlawfully. The issue of the coexistence of multiple co-owners becomes crucial when dealing with indivisible assets, as their management and assignment can be complex.

• Art. 48, paragraph 7-ter, D.lgs. No. 159/2011: governs the assignment of shares of indivisible assets.
• Jurisprudential reflection: the judgment clarifies that the absence of a majority share does not preclude the acceptance of the application.
• Importance of good faith: the third co-owner must demonstrate that they are acting in good faith.

Analysis of the Judgment's Headnote

Prevention confiscation of shares of indivisible assets - Application for assignment by the third co-owner in good faith pursuant to Art. 48, paragraph 7-ter, D.lgs. No. 159 of 2011 - Acceptance - Conditions. In the matter of prevention confiscation of shares of indivisible assets, for the acceptance of the application for assignment made by the third co-owner in good faith, it is not necessary for them to hold a majority share of the asset, nor for there to be an agreement with the National Agency for the Administration and Management of Seized and Confiscated Assets.

This headnote highlights two fundamental points: firstly, the third co-owner does not necessarily need to hold a majority share to have their application accepted. This represents a significant step forward in protecting the rights of co-owners in good faith, avoiding situations of decision-making deadlock and injustice. Secondly, no agreement is required with the National Agency for the Administration and Management of Seized and Confiscated Assets, which grants the co-owner greater autonomy in managing the asset.

Conclusions

In summary, judgment No. 21126 of 2023 represents an important jurisprudential orientation in the field of prevention confiscation. It emphasizes the importance of protecting the rights of co-owners in good faith, ensuring they have access to indivisible assets without the restrictions previously deemed necessary. This approach not only promotes justice but also offers a clearer regulatory framework for the management of seized assets, avoiding conflicts between co-owners and institutions.