Illegal subdivision and confiscation: judgment no. 44346 of 2024

Judgment no. 44346 of 14 November 2024, issued by the Court of Cassation, provides important clarifications on the issue of illegal subdivision and the related consequences in terms of asset confiscation. In particular, the Court ruled that legal entities owning the areas illegally subdivided cannot be considered third parties extraneous to the crime, thus excluding the possibility of benefiting from confiscation.

The context of the judgment

In the specific case, the defendant, C. F., was involved in a situation of illegal subdivision, which led to the intervention of the Court of Appeal of Cagliari. The central issue concerned the identification of the subjects involved and their responsibilities. The Court stressed that neither the legal entity owning the illegally subdivided area, nor the one presenting itself as the apparent owner of the assets, can be considered third parties extraneous to the crime. This position is based on the consideration that such entities receive advantages and benefits deriving from the crime, thus configuring themselves as active parties in the subdivision process.

The ruling's maxim

Illegal subdivision - Confiscation - Third parties extraneous to the crime - Identification - Legal entity owning the area or apparent owner of the assets - Exclusion - Reasons. In the matter of illegal subdivision, neither the legal entity owning the illegally subdivided area, which receives the advantages and benefits resulting from the crime, as it is normally the client of the interventions carried out and party to the related legal transactions and any other activity carried out for this purpose, nor the one who is the apparent owner of assets, which represents the mere screen through which the offender, the actual owner, acts in their own exclusive interest, can be considered third parties extraneous to the crime for the purposes of confiscation, as in both cases the necessary requirement of good faith is lacking.

This maxim highlights how the Court intended to clarify that good faith cannot be invoked by subjects who, although not the direct perpetrators of the crime, nevertheless benefit from the illicit conduct. The exclusion of such subjects from the category of extraneous third parties is fundamental to ensuring the effectiveness of confiscation measures, an essential tool for combating illegality in the building sector.

Implications and conclusions

The implications of this judgment are significant. Firstly, it establishes a clear principle of responsibility: those who benefit from a crime cannot hide behind their extraneousness to avoid legal consequences. Furthermore, the judgment aligns with the principle of legality and the fight against illegal building, also provided for by European and national legislation.

• Strengthening of confiscation measures.
• Clarity on the responsibility of legal entities.
• Need to assess good faith in complex contexts.

In summary, judgment no. 44346 of 2024 represents an important step in the fight against illegal subdivision, clarifying the boundaries of responsibility and ensuring that those who benefit from illicit practices cannot escape the consequences of their actions.