Commentary on ruling no. 27397 of 2023: Confiscation and Financial Danger

The ruling no. 27397 of 2023, issued by the Court of Cassation, addresses a highly relevant issue in the field of asset prevention measures. In particular, it discusses the legitimacy of the confiscation of assets in relation to criminal conduct dating back to remote times, within the context of current legislation. This pronouncement represents an important reflection on the retroactivity of preventive measures and their application based on established danger.

The issue of retroactivity in the confiscation of assets

The specific case concerns the defendant A. M., who found the appeal for the revocation of a confiscation order inadmissible, motivated by the fact that the alleged conduct dated back to the years 2001 and 2002. The Court emphasized that, under such circumstances, the confiscation order was issued based on the pre-existing legislation, and therefore, the appeal could not be accepted. This aspect is crucial, as it highlights how asset prevention measures cannot be applied retroactively, thus violating the principle of predictability of the rules.

Confiscation - Established danger pursuant to art. 1, lett. b), Legislative Decree no. 159 of 2011 - Symptomatic facts committed in earlier or remote times - Lack of legal basis due to absence of predictability - Revocation under art. 28, paragraph 2, Legislative Decree no. 159 of 2011 - Exclusion - Reasons - Case. In the context of asset prevention measures, the remedy of revocation referred to in art. 28, paragraph 2, Legislative Decree of September 6, 2011, no. 159, cannot be pursued against the definitive confiscation order based on the assessment of danger pursuant to art. 1, paragraph 1, lett. b), of the aforementioned legislative decree, in the case where the party raises the lack of "legal basis" of the confiscation order, as it was issued concerning conduct that occurred before the entry into force of the cited legislation and, therefore, based on a retroactive application of the asset prevention measure. (Case in which the Court declared the appeal inadmissible on the grounds that the contested confiscation order concerned usury conduct dating back to the years 2001 and 2002, a time when, concerning significant conduct of "generic danger" such as usury, the preventive measures provided by Law no. 1423 of December 27, 1956, and subsequent amendments, or the regime of preventive confiscation regulated by Law no. 55 of March 19, 1990, and subsequent amendments, could have been applied).

Implications of the ruling and final considerations

This ruling not only clarifies the temporal limit in the application of preventive measures, but also emphasizes the importance of legal certainty. The Court, in fact, reiterated the necessity of respecting the fundamental principles of criminal law, such as predictability and non-retroactivity of the rules. The decision of the Court of Cassation is part of a broader legal debate concerning confiscation and preventive measures, calling for a deeper reflection on the need for clear and coherent legislation in this matter.

Conclusions

In conclusion, ruling no. 27397 of 2023 by the Court of Cassation represents an important precedent regarding the confiscation of assets and asset prevention measures. It reaffirms the rights of individuals and the necessity of applying the rules fairly and justly, avoiding the retroactive use of legislation. For legal professionals, it is essential to consider the implications of this pronouncement in future legal strategies and in protecting the rights of their clients.

Bianucci Law Firm