Judgment No. 37880 of 2023: Confiscation and Presumptions in Criminal Law

The recent judgment of the Court of Cassation No. 37880 of June 15, 2023, represents an important clarification regarding asset confiscation and related presumptions, particularly concerning Article 240-bis of the Criminal Code. This article governs the confiscation of assets, even from third parties, but not without specific conditions that must be met to ensure a fair trial.

The Legal Context of Asset Confiscation

Confiscation under Article 240-bis of the Criminal Code is a measure intended to deprive an individual of assets acquired unlawfully. However, the judgment in question clarifies that, in order to apply this measure to a third party unrelated to the crime, the prosecution must demonstrate with concrete evidence the existence of a discrepancy between formal ownership and the actual availability of the asset.

• Proof must be based on factual elements of gravity, precision, and consistency.
• It is not sufficient to rely solely on the presumption arising from the disproportion between the value of the assets and the income declared by the third party.
• The presumption applies only to the defendant, not to third parties.

Judgment Summary and Commentary

Confiscation under Article 240-bis of the Criminal Code - Applicability to Third Parties - Presumption Based on Disproportion between Asset Value and Income Received – Sufficiency – Exclusion - Conditions. For the confiscation under Article 240-bis of the Criminal Code to apply to a third party unrelated to the commission of one of the crimes mentioned in said provision, the prosecution bears the burden of proving, based on factual elements characterized by gravity, precision, and consistency, the existence of a discrepancy between formal ownership and actual availability of the asset. The mere presumption based on the disproportion between the value of the assets held in title and the income declared by the third party is not sufficient, given that such a presumption is provided for by Article 240-bis of the Criminal Code only with respect to the defendant.

This summary highlights the importance of solid and detailed proof to justify confiscation from third parties. In other words, the Court of Cassation establishes that the burden of proof cannot be limited to general considerations but must be based on concrete and verifiable data.

Conclusions

Judgment No. 37880 of 2023 represents a significant step towards greater protection of third-party rights in the context of asset confiscation measures. It underscores the importance of strict adherence to procedural guarantees, preventing weak presumptions from justifying drastic decisions such as asset confiscation. In a legal system that aims to balance the fight against crime with the protection of individual rights, this judgment offers clear direction in the correct application of the presumption of innocence and the necessity of concrete evidence.