La confisca "civile" dei proventi da reato

Misura di prevenzione e civil forfeiture: verso un nuovo modello di non-conviction based confiscation

La confisca

Abstract. The book analyzes a particular kind of confiscation, the so-called “confisca di prevenzione”, provided for by the Legislative Decree n. 159/2011, intending and construing it as a merely “civil” measure. The research starts from the analysis of the origins and evolution of such confiscation, and then examines the current legal framework as well as the main issues related to its enforcement and interpretation. The work thus focuses on the nature of the measure, going through the theories developed by Italian scholars and the Italian case law, also in the light of both the European Union Law and the European Convention of Human Rights. The research examines, furthermore, the civil forfeiture of the USA and the related case-law of the US Supreme Court, which offers important hints in order to detect the criteria identifying the nature of the Italian confisca di prevenzione.Indeed its nature, ultimately, does not seems to be “preventative” or “punitive”, since both these qualifications do not fit with the real goal of such confiscation, i.e. the neutralization, the resetting of the illicit store of wealth. The measure should indeed take back the assets of the defendant to the situation before the perpetration of the misconduct. The nature of the confiscation looks therefore “civil”, since it is governed by private law rules, including the ways to legally acquire property and the general prohibition of unlawful enrichment. Finally, using a de iure condendo approachthe work drafts the main features ruling the application of the civil confiscation (the action of the State against the owner) and the safeguards thereto, set forth by the Italian Constitution and the European Convention (articles 41, 42 Const. and article 1 of Protocol n. 1 of ECHR), pointing out its potential benefits both in terms of efficiency and protection of the fundamental human rights.

download PDF