Preventive Seizure and Profit from Corruption: What Changes After Ruling No. 13620/2024 of the Court of Cassation

With decision no. 13620 of December 3, 2024 (filed April 8, 2025), the Sixth Criminal Section of the Court of Cassation rejected the Public Prosecutor's appeal against the order of the Avellino Review Court, offering, however, a significant clarification on the scope of art. 322-ter, paragraph 2, of the Italian Criminal Code regarding preventive seizure aimed at the confiscation of profit from the corruptor. The measure, which refers to previous rulings by the United Sections 36959/2021 and 13783/2025, represents an important piece in defining the concept of confiscable "profit".

The Regulatory Framework

Art. 321 of the Italian Code of Criminal Procedure allows for preventive seizure when the item "belongs to one of the crimes for which confiscation is provided". For corruption offenses, the reference is art. 322-ter of the Italian Criminal Code, which provides for the confiscation of both the price and the profit of the crime, and, as a residual measure, of sums of money or assets of equivalent value when the original proceeds cannot be traced.

• Price: what the corruptor pays to the public official.
• Profit: the financial advantage obtained by the perpetrator of the crime.
• Equivalent: a residual parameter, to be applied only if the price or profit cannot be identified.

Principles Affirmed by the Court of Cassation

Preventive seizure of profit, aimed at confiscation, presupposes that a profit has been achieved, resulting in an increase in the financial sphere of the recipient. Therefore, in the case of seizure against the corruptor, pursuant to art. 322-ter, second paragraph, of the Criminal Code, the profit cannot be identified with the price paid to the corrupted party, unless there is proof that it has returned to the corruptor's disposal. (In its reasoning, the Court specified that the subsidiary clause referred to in the indicated provision establishes only a parameter for determining the profit already acquired, which could not be quantified).
Comment: The Court reiterates the financial essence of confiscable profit. The money paid to the corrupted party leaves the corruptor's disposal; only if it returns to them (e.g., through restitution or simulated payment) can it be seized as profit. The clause on the equivalent does not legitimize "automatic" seizures: proof of concrete enrichment is still required.

It follows that:

• Seizure under art. 322-ter against the corruptor requires proof of a financial advantage distinct from the "price" itself.
• The equivalent applies only when the profit exists but is not quantifiable, not when it is entirely absent.
• The burden of proof on the prosecution increases: it must demonstrate the increase in the defendant's financial sphere.

Operational Implications for Companies and Defense

The principle is of great importance in corruption proceedings involving legal entities under Legislative Decree 231/2001. Proof of the entity's profit cannot be based solely on the sum paid to the public official; it will be necessary to demonstrate, for example, the obtaining of contracts, licenses, or undue cost savings.

For defense lawyers, the ruling offers new strategic lines:

• Request the revocation or reduction of the seizure if the prosecution does not document actual enrichment.
• Highlight the distinction between price and profit, especially in cases of "simple" corruption under art. 318 of the Criminal Code.
• Invoke the principle of proportionality enshrined in art. 1 of Protocol No. 1 of the ECHR and art. 49 of the EU Charter.

Conclusions

The Court of Cassation, with Ruling No. 13620/2024, confirms a rigorous but protective approach: confiscation must be limited to the actual economic advantage. This protects the right to property and prevents preventive seizure from becoming an anticipatory punitive measure. Prosecutors will therefore have to base their requests on concrete elements of enrichment, while defense lawyers will have an additional tool to counter excessive seizures and safeguard business continuity.