In light of the expansion of the scope of personal preventive measures, the role of courts and scholars consists of watching individual safeguards. In a context of expanding preventive measures, it seems unrealistic imagining a criminal justice system without prevention praeter delictum. The best option is then limiting the use of such measures, strictly applying proportionality in order to assess the grounds and the effects of the measure on the personal freedom, directly or indirectly as a consequence of the infringement of the relevant prescriptions.
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.
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 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.
Le Sezioni Unite riaffermano la natura preventiva dell’ipotesi di confisca attualmente prevista dal c.d. “codice antimafia”, nonostante l’evoluzione legislativa e giurisprudenziale ne attesti sempre più nitidamente una diversa funzione di neutralizzazione dei profitti di provenienza illecita, indipendentemente dalla pericolosità dei beni e dei destinatari. Rimangono aperti, quindi, gli interrogativi circa l’esatta collocazione sistematica di tale istituto ed i limiti che devono presidiarne l’applicazione, anche alla luce della sua progressiva estensione ad ipotesi delittuose estranee al fenomeno mafioso.