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Confiscation of fictitiously registered assets: commentary on judgment no. 35669 of 2023

The judgment no. 35669 of May 11, 2023, issued by the Court of Cassation, addresses a matter of great relevance in the Italian legal landscape: the confiscation of assets fictitiously registered to third parties. This measure is often applied in the context of preventive measures against individuals deemed dangerous to public order. In this article, we will analyze the main aspects of this ruling, seeking to clarify the meaning and implications of its provisions.

The context of the judgment

The case in question concerned the confiscation of assets belonging to an individual, A. J., which were deemed fictitiously registered to a third party. The Court established that the third party can only claim the actual ownership and possession of the confiscated assets, without the possibility of contesting the legality of the confiscation measure. This principle, of fundamental importance, defines the scope of action of the third party, who cannot interfere with issues regarding the dangerousness of the proposed individual or the disproportion between the value of the assets and the declared income.

Analysis of the ruling and legal implications

Confiscation of assets fictitiously registered to a third party - Legitimation and interest of the third party to contest the prerequisites for the application of the measure to the proposed individual - Exclusion - Reasons. In the case of preventive confiscation involving assets deemed fictitiously registered to a third party, the latter can exclusively claim the actual ownership and possession of the encumbered assets, fulfilling the related burden of allegation, but is not entitled to argue that the asset is actually owned by the proposed individual, as they are completely extraneous to any legal question regarding the prerequisites for the application of the measure against them - such as the condition of dangerousness, the disproportion between the value of the confiscated asset and the declared income, as well as the origin of the asset itself - which only the proposed individual may have an interest in asserting.

This ruling clarifies that the third party has the right to prove that they are the legitimate owner of the assets but cannot contest the confiscation measure as such. The reasons are clear: the third party is extraneous to the dynamics of the measure, which is closely linked to the conduct of the proposed individual and their dangerousness. Italian legislation, particularly Legislative Decree 159/2011, art. 10, establishes the foundations for preventive confiscation, highlighting how individual responsibility and ownership of assets are key elements in the decision-making process.

Conclusions

The judgment no. 35669 of 2023 represents an important clarification regarding the confiscation of assets fictitiously registered to third parties, emphasizing the limits of legitimization of these parties in contesting preventive measures. It is essential for the involved parties to understand the importance of demonstrating their ownership, without delving into the merits of issues related to the dangerousness of the proposed individual. With this intervention, the Court of Cassation confirmed the necessity to safeguard the integrity of preventive measures while also protecting the rights of legitimate owners of the assets. The clarity of this judgment will help guide future decisions in the matter, ensuring a balance between public safety and the protection of individual rights.