Cassazione, sentence no. 13783/2024: confiscation in lieu between recovery function and punitive limits

With decision no. 13783 of 26 September 2024 (filed 8 April 2025), the Court of Cassation returns to the long-debated topic of confiscation in lieu of the proceeds of a crime. The measure – which annuls with referral the order of the GIP of Vicenza of 23 June 2023 – offers valuable insights for legal professionals and businesses that fear the economic impact of this asset measure.

The core of the ruling

Confiscation in lieu of the proceeds of a crime, like direct confiscation, serves a recovery function and has a sanctioning function as it concerns assets lacking a direct link to the crime, and can only assume a punitive function if it deprives the recipient of assets exceeding the economic advantage gained from the illicit act.

The Court, referring to the United Sections G. E. (2015) and more recent rulings from 2022-2023, reiterates that the measure, provided for by articles 240 and 322-ter of the Italian Criminal Code (c.p.), aims first and foremost to recover illicit profits. However, it affects assets other than those directly linked to the crime, which gives it an inevitable sanctioning character. Only when the expropriated value exceeds the economic advantage does confiscation become truly punitive, approaching the logic of a monetary penalty.

Legislative and jurisprudential framework

• Art. 240 c.p.: mandatory/discretionary confiscation of assets linked to the crime.
• Art. 322-ter c.p.: extension of confiscation in lieu for crimes against public administration and corruption.
• Art. 111 of the Italian Constitution and ECHR jurisprudence: necessity of proportionality and predictability of asset sanctions.

In the ruling under comment, the Court censured the GIP for failing to provide reasoning on the proportionality and necessary correspondence between the confiscated amount and the estimated profit. Since 2015, the United Sections have required the judge to precisely quantify the advantage obtained, even through presumptive criteria, before ordering confiscation in lieu. Ruling no. 13783/2024 reaffirms that the obligation to provide reasoning cannot be evaded with the formula "art. 240 c.p. obliges".

Practical implications for businesses and defence lawyers

For entities, especially after Legislative Decree 231/2001, confiscation in lieu represents a concrete risk. From reading the decision, three operational points emerge:

• Preventive due diligence: map risk areas to avoid illicit enrichment.
• Document financial flows: facilitate the judge's distinction between assets derived from the crime and "lawful" assets.
• Contest excess: demonstrate, where possible, that the seizure exceeds the profit actually obtained.

For the defence lawyers of M. G. (fictitious name), the Cassation has opened the way for a new referral judgment, in which the Court will have to precisely quantify the profit and provide reasoning on the choice of assets to be seized.

Commentary on the maxim

The maxim reminds us that confiscation is not a penalty in the strict sense, but it shares its severity. The balance between recovery and sanction is delicate: exceeding it means violating the principles of culpability and proportionality enshrined in Article 27 of the Italian Constitution and by the ECHR (Engel case). With the ruling in question, the Supreme Court averts disguised punitive drifts, reaffirming the guarantee role of the trial judge.

Conclusions

Ruling no. 13783/2024 is part of an established but still evolving trend: confiscation in lieu is a hybrid measure, both for recovery and sanctioning, which only becomes punitive if unbalanced. For professionals and businesses, the keyword remains proportionality. Pending the referral judgment, the message from the Cassation is clear: no motivational shortcuts, no "lump-sum" confiscation. Asset criminal law must remain anchored to criteria of substantive justice and effective protection of economic freedoms.