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
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.