Direct Confiscation and Bankruptcy Offences: The Limits of Preventive Seizure According to the Court of Cassation (Judgment no. 17718/2025)

In the landscape of economic criminal law, bankruptcy offences represent a category of particularly complex illicit acts, often intertwined with property and financial matters. The need to recover illicit proceeds, both to restore legality and to compensate creditors, makes real precautionary measures, such as preventive seizure and confiscation, instruments of fundamental importance. However, their application must always respect principles of legality and proportionality, as reiterated by the Court of Cassation with its recent ruling.

Judgment no. 17718 of 30 April 2025 (filed on 9 May 2025), issued by the Fifth Criminal Section of the Supreme Court, offers essential clarification on the limits of preventive seizure for the purpose of direct confiscation of profit in the context of fraudulent bankruptcy. This decision, which quashed with referral the ruling of the Tribunal of Liberty of Florence of 4 February 2025 concerning the defendant R. L., puts a brake on extensive interpretations that could distort the very nature of direct confiscation, improperly transforming it into a confiscation by equivalent value.

The Nexus of Pertinence: The Heart of the Matter

The core of the Court of Cassation's ruling lies in the rigorous definition of the "profit of the offence" and its relationship with the sums subject to seizure. Confiscation, generally governed by Article 240 of the Criminal Code and specifically by Article 322 ter of the Criminal Code for confiscation by equivalent value, aims to deprive the offender of the economic advantages derived from criminal activity. However, not all forms of confiscation are applicable to all offences.

In the case of bankruptcy offences, jurisprudence has always maintained a clear distinction. The judgment in question, with its maxim, crystallises a fundamental principle that is crucial for understanding the scope of preventive seizure.

In matters of bankruptcy offences, preventive seizure for the purpose of direct confiscation of the profit of the bankruptcy offence can only concern sums of money for which a nexus of pertinence to the offence has been ascertained, or which constitute immediate reinvestment or transformation of the latter, and not any sum deemed to be at the disposal of the perpetrator of the act, otherwise it would amount to seizure by equivalent value, which is not permitted for bankruptcy offences.

This passage is of paramount importance. The Court, presided over by M. G. R. A. and with B. P. as rapporteur, clarifies that preventive seizure aimed at direct confiscation cannot be indiscriminate. It is not sufficient for the sums to be generally at the disposal of the perpetrator of the act (R. L. in this case) to justify their seizure. Instead, it is essential to demonstrate a direct "nexus of pertinence" between the money and the bankruptcy offence, or that such sums are the result of immediate reinvestment or transformation of the original illicit profit. This categorically excludes the possibility of resorting to seizure by equivalent value for bankruptcy offences, such as fraudulent bankruptcy (governed by Article 216 of the Bankruptcy Law and Article 223, paragraph 2, letter 2, of the same law).

Direct Confiscation vs. Confiscation by Equivalent Value: Why the Distinction is Fundamental

Direct confiscation (or confiscation for disproportion, or preventive confiscation) focuses on assets that are intrinsically linked to the offence: the profit, the product, or the price of the crime. Confiscation by equivalent value, on the other hand, allows for the seizure of the offender's assets of a value corresponding to the illicit profit when assets directly derived from the offence are no longer available. The latter is typically provided for a specific series of offences (such as those listed in Article 322 ter of the Criminal Code) and not for all.

The reason for this distinction is profound and relates to the principles of legality and specificity of criminal measures. Allowing seizure by equivalent value for bankruptcy offences, for which it is not expressly provided, would mean analogously extending a restrictive property measure, violating the principle of reservation of law. The Court of Cassation, with its ruling, reaffirms the need for rigorous application of the rules, avoiding interpretative deviations that could prejudice property rights without an explicit legal basis.

The cited regulatory references, including Article 321 of the Code of Criminal Procedure (which governs preventive seizure), reinforce the idea that any precautionary measure must be justified by a precise legal framework and a careful assessment of the causal link between the asset and the illicit act.

• Judicial Clarity: The judgment provides clear guidance for judges and legal professionals.
• Protection of Assets: It protects the defendant's assets from indiscriminate seizures, requiring concrete proof of the link between the sums and the offence.
• Principle of Legality: It reiterates the importance of applying precautionary measures only in cases and in the manner provided for by law.
• Focus on Specific Profit: It emphasises that seizure must target the profit actually generated by the bankruptcy, or its immediate derivative, not the offender's general financial availability.

Conclusions

Judgment no. 17718/2025 of the Court of Cassation represents a firm point in the jurisprudence on bankruptcy offences and confiscation. It not only clarifies the limits of application of preventive seizure for direct confiscation but also reinforces the fundamental principles of legality and proportionality that must guide judicial action. For businesses and entrepreneurs, this decision offers greater legal certainty, precisely outlining which assets can be subject to precautionary measures in the event of bankruptcy charges. For legal professionals, it serves as an important reminder of the need for rigorous analysis of the nexus of pertinence, avoiding extensive interpretations that could infringe upon citizens' fundamental rights.