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
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.
The struggle against the heap of illegal assets finds in the subject of confiscation the primary and main tool of intervention: with its qualities of a structurally changeable and a finalistically eclectic concept, the confiscation takes on some chameleonic traits that allow it to adapt to many different purposes, both on the level of prevention and repression. The confiscation, in this regard, is the most emblematic manifestation of that specific model of “modern” criminal law, voted for the contrastive efficiency, to which the criminal policy of the last few years seems to tend to. The present contribution aims to outline the basics coordinates to orient the interpreter within the vast, complex and actual ablative panorama.
The author, after an overview of the different confiscation models in the national legal system, with particular regard to the so called confiscation “per sproporzione”, focuses on the necessary profiles concerning the application of the measure in the different models. The trend emerging is that the legislator tends to release the ascertaining of the confiscation from the application. But a similar trend might have a negative impact on the efficiency of the new punitive system based on confiscation.
Freezing and confiscation orders play a significant role as a way to combat smuggling. The need to deal with crimes which are committed by members of organizations operating in more than a State, and acting in such a way as to evade the jurisdiction of the State of arrival of migrants, makes cooperation at European and international level fundamental. This work examines some relevant aspects of this kind of cooperation, seeking to highlight the most problematic issues connected.
We talk about “discretion of the judge” every time a Court is recognized the cognitive duty and the power to decide an appropriate sentence in accordance with the purposes of criminal punishment defined by the Parliament. This broad definition includes the power of the criminal courts to apply those that, in Italy, are called "misure di sicurezza". This paper traces the steps followed by the Constitutional Court to remove the presumptions and automatisms that characterize the original structure of the “misure di sicurezza personali”. It will mention the issues raised by the D.L. n. 52/2014, with which the Parliament sought to put an end to the so-called “ergastoli bianchi”, as well as the question of the Court’s power to determine the amount of a confiscation order, a measure that was born as a “misura di sicurezza patrimoniale” but, today, has become a proper criminal punishment. The paper intends to show that, even in the context of the “misure di sicurezza”, the Parliament has the tendency to limit (or eliminate) the discretion of the Court. This trend is not in accordance with the purposes of the instrument “misure di sicurezza” nor with the Constitutional principles.
The partial vagueness of the legislative requirements provided by section 321 par. 1 of the Italian Code of Criminal Procedure has given rise to a lively case law and a fierce debate in literature about the legal conditions for the application of preventive seizure. Through the justification of the legal order, the court should be accountable to the community - including all the parties concerned by the measure - for the logical and legal route of the decision. In order to verify if this fundamental guarantee is actually respected, it is necessary to reconstruct the “state of art” by carefully organizing the case law and the literature in this field. Moreover, in our opinion this approach opens the way for a clear comprehension and further development of the subject examined.