Preventive Confiscation and Evidentiary Burdens: Cassation Ruling No. 19468/2025 and the Rights of Third-Party Creditors

In the complex scenario of asset-based preventive measures, the protection of third-party creditors is crucial. The recent ruling by the Court of Cassation No. 19468, filed on May 26, 2025, offers fundamental clarifications, outlining a rigorous framework for the enforceability of credits predating the seizure. This decision is essential for understanding the evidentiary burdens on third parties and the dynamics with judicial administration.

Asset-Based Preventive Measures: Context and Objectives

Asset-based preventive measures (Legislative Decree No. 159/2011, the "Anti-Mafia Code") are tools to strip organized crime of illicit assets. Seizure and confiscation aim to restore legality. Assets under restraint are often active businesses, whose management is entrusted to judicial administration to preserve their value and ensure continuity, protecting legitimate economic relationships.

The Cassation Ruling: Unambiguous Evidentiary Rigor

Ruling No. 19468/2025 addresses the burden of proof for third-party creditors. The Court establishes that a third party cannot merely invoke the existence of a credit in the accounting records of the seized company, even if such entries are repeated and the company is authorized to continue its operations. The reason lies in the inapplicability of Article 2709 of the Civil Code. The need to protect the integrity of the assets prevails over the presumption of veracity of internal records.

In the context of asset-based preventive measures, a third-party creditor, for the purpose of making a credit predating the seizure enforceable against the procedure, must provide proof of their right, even if it appears in the records of the company subject to restraint with repeated accounting entries during the authorized business operations pursuant to art. 41, paragraph 1-sexies, of Legislative Decree no. 6 September 2011, no. 159, as the provisions of art. 2709 of the Civil Code are not applicable in such cases. (In its reasoning, the Court specified that judicial administration authorized to continue business operations remains a third party, except for cases concerning essential commercial relationships and those of duration, provided for, respectively, by articles 54-bis and 56 of the aforementioned Legislative Decree, with respect to debit and credit relationships arising prior to the administration).

For a third party, the burden of proof is onerous and requires external documentation. The credit must be supported by objective and verifiable elements, such as:

• Formally executed and registered contracts;
• Bank documentation (transfers, account statements) attesting to financial flows;
• Commercial correspondence (certified emails, PEC) confirming the existence and validity of the relationship;
• Invoices and receipts issued and paid (or with proof of non-payment) that are not merely internal "entries".

Judicial Administration and Exceptions

The Cassation ruling clarifies that judicial administration, although authorized to continue operations (art. 41, paragraph 1-sexies, Legislative Decree No. 159/2011), remains a "third party" with respect to pre-existing debit and credit relationships. This prevents potentially fictitious credits from compromising the effectiveness of the measure.

However, the Court recognizes exceptions (Articles 54-bis and 56 of Legislative Decree No. 159/2011). These provisions provide for the recognition of essential commercial relationships and those of duration, to prevent the measure from paralyzing the legitimate economic activity of the company, protecting good-faith third parties. The administration may be required to recognize and fulfill pre-existing obligations, always in compliance with legality and transparency.

Conclusions and Practical Advice

Ruling No. 19468/2025 reiterates the need for a rigorous approach in managing credits within the context of asset-based preventive measures. For creditors, the message is clear: mere accounting entries are not sufficient. It is essential to have robust and unequivocal external documentation attesting to the origin and validity of the right. For legal professionals and businesses, this ruling underscores the importance of thorough due diligence and impeccable contractual and documentary management, to balance the fight against crime with the safeguarding of legitimate commercial relationships.