Regulation (EU) 2018/1805 of the European Parliament and of the Council of 14 November 2018, in force since 19 December 2020
Law Decree no. 124/2019 (conv. into Law. N. 157/2019) lastly amended Leg. Decree n. 74/2000 in order to enhance its effectiveness in combatting tax evasion, through the introduction of more severe criminal sanctions. Notably, both the provisions on extended confiscation (Artt. 12 ter Leg. Decree n. 74/2000) and the new direct liability of legal entities for tax fraud committed by their representatives (Art. 25 quinquiesdecies Leg. Decree no. 231/2001, lastly amendend by Decree Law n. 75/2020) increase powers of confiscating and freezing proceeds of fiscal offences. Thus, it is essential to ensure that the fight against tax evasion respects fundamental rights and the requirements of fairness and proportionality, as required by European Court of Human Rights and Italian Constitutional Court
Reflections on the quantification of proceeds and on the legal nature of direct confiscation and confiscation of substitute assets
The article deals with the nature of proceeds confiscation, both "direct" and of "substitute assets". Analysing Italian criminal case law, the article tries to demonstrate how the nature of confiscation depends on the determination of the value of proceeds and on its consequent effect of "impoverishment" or mere "restoration" of the personal asset. The conclusion is that the confiscation currently has a punitive character, though it is not supported by all the constitutional guarantees surrounding the criminal sanctions. The article investigates the possible solutions to overcome this “aporia”, concluding that – given the incompatibility of the confiscation to the principle of proportionality and individualization of the penalty – confiscation could be considered as a merely restorative tool, from an "author-centric" point of view. Coherently the relevant constitutional guarantees could be reshaped and various practical effects "in bonam partem" could be obtained
The Italian preventive confiscation as governed by Articles 16 et seq of the Legislative Decree n. 159/2011 (the so- called Italian "Anti-Mafia Code") is often compared to civil forfeiture proceedings in the United States. The two measures certainly have something in common. Both the Italian preventive confiscation and the US civil forfeiture allow the State to confiscate cash and property involved in illegal activities even if the owner has not been charged with or convicted of a crime. Apart from this similarity, however, the difference between the two measures is significant. In fact, it is important to underline that what law enforcement agencies can confiscate through civil forfeiture is not always the same property that can be confiscated through Italian preventive confiscation. Unlike the Italian preventive confiscation, civil asset forfeiture not only deals with the proceeds of the crime but also with instrumentalities and facilitating property. This, of course, changes the ultimate purpose of the confiscation, along with the procedural guarantees that the Constitution requires for its enforcement. This article argues that the comparison between the Italian preventive confiscation and the US civil forfeiture is not so appropriate and can lead to misleading results.
Non-conviction Based Confiscation and Its Effects on the Corporation Within Italian Criminal Proceedings
A judicial practice as widespread as it is deplorable to the detriment of individuals, the application of confiscation, even in the presence of the prescription of the crime, is becoming an almost obvious outcome also in the context of criminal trials in which the corporation is involved in various ways. Both as a defendant of the administrative offence dependent on a crime, and as an interested third party, the corporation finds itself, in fact, most of the times to suffer the expropriation effect imposed on the author “in flesh and blood”, despite the lack of an irrevocable ascertainment of conviction for the alleged crime. With evident and serious repercussions on the effectiveness of the fundamental guarantees overseeing criminal proceedings
The preventive Confiscation in the Multilevel Constitutional Protection (Constitutional Court n. 24/2019)
As part of a fruitful "dialogue between the Courts" and the c.d. multilevel constitutionalism the judgement of the Constitutional Court n. 24/2019, in implementation of the indications of the Court Edu in the De Tommaso case, declared the unconstitutionality of the category of individuals laid down in section 1 (1), lett. a) Legislative Decree 159/2011 ("(1) those who must be considered, on the basis of factual elements, habitually devoted to criminal traffics"); this, despite the effort to interpret in a precise way this rule, offered by the jurisprudence of the Supreme Court. Moreover, the Court - at least in relation to the patrimonial measures - disputes the lack of reasonableness of this rule, in the sense that it considers the generic reference to “criminal traffics” unsuitable to base that presumption of illicit enrichment, on which the patrimonial measures are grounded. The Constitutional Court considers the hypothesis of generic dangerousness pursuant to section 4 (1), lett. b, compatible with the legality principle, offering an interpretation which is the result of a problematic legal orthopedic operation, in search of a difficult balance between the safeguards of the rule of law, on the one hand, and the efficiency instanc- es underlying the preventive measures, on the other. The article decisively criticizes the Constitutional Court’s judgement where it attributes a mere restorative (compensatory) nature to the preventive confiscation and to the extended confiscation ex art. 240 bis c.p. - species of the genus "confiscation of suspect profits" -, with the evident aim of denying "the substantially punitive nature" and subtract them from the "constitutional and conventional statute of penalties" or better of the "criminal matter" in the broad meaning recognized by the ECourtHR, which is accomplice in this attitude of political balancing, aimed at preserving the efficiency of such measures
During the last two decades, in Italy the fight against corruption resulted into several kinds of confiscation of crime proceeds, having very different conditions and rules. The overall rationale of the said diversification is based on efficiency and it could jeopardise fundamental safeguards of criminal law as well as the rule of law
With a mechanism recalling the supranational blacklisting, the Italian law-maker introduced with Legislative Decree no. 90/2017 national measures of asset freezing aimed to prevent and fight financing terrorism. This is a new tool to trace the money trail which potentially crosses the Mediterranean Sea to finance ISIL or other terrorist organizations. This paper moves from analysis of the recent regulation and puts national asset freeze in the broader context of preventive measures with ban effect. Then, it focuses on its compatibility with the principles of domestic preventive system, highlighting the most critical issues: on the one hand, the justiciability deficit, on the other hand, the uncertain assessment of dangerousness. The lack of guarantees of listed persons pushes to wonder whether this domestic regulation has accomplished an adequate and lawful balancing between security and liberty.