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ISSN 2611-8858


De Tommaso

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

The Long Wave of De Tommaso Case: Is Time Running Out for ‘Generic’ Anti-Mafia Ban Ex Art. 84, Co. 4, Lett. d) and e) D.Lgs. N. 159/2011?

The ECtHR judgment De Tommaso vs. Italy cast serious doubts on the legitimacy of the Italian preventive measures system, by holding that the very idea of a “generic dangerousness” is too vague to be compatible with Art. 2 Prot. 4 ECHR. This paper explores the possible consequences of the holding in De Tommaso on the administrative measures aimed at combating mafia-type organization in Italy. In particular, in the light of De Tommaso there are now sound reasons to believe that the bans based on Art. 84, comma 4 lett. d) and e)of Legislative Decree No. 159/2011 are based on requirements that are inconsistent with the legality principle enshrined, inter alia, in Art. 1 Prot. 1 ECHR.