The legislation in force in matters
of the confiscation of illicit patrimonies
As is known, the seizure and confiscation of illicit patrimonies can be decided, according to the cases, both in a criminal trial and in the ambit of prevention. And, in fact, the measures of patrimonial prevention constitute and effective instrument to counteract the illicit wealth and the accumulation of considerable mafia patrimonies by criminal organizations and affiliates, but keeping in mind the fact that often “the fragility” of the circumstantial evidence on which they are founded impedes the attainment of the result and that, in many cases, the seizure decided by the Court of Prevention, does not reach definitive confiscation. To obtain this objective, the Public Prosecutor grants the preliminary enquiries – when the suspect has already been entered in the registrar of persons under investigation – to develop also those enquiries regarding the illicit patrimonies accumulated by the person under investigation, finalizing the enquiries to the request for application of the preventive seizure of the goods and properties of illicit provenance, in view of the following confiscation after sentence for the crimes for which the defendant is being tried.
This is the reason why the Public Prosecutor, more and more frequently, incorporates the patrimonial investigation in the ambit of the preliminary enquiries: for the simple reason of being able to found the request for seizure and confiscation of the goods and properties on the criminal responsibility of the suspect under investigation. And it is with the precise purpose of striking all the illicit wealth accumulated by the criminal organizations that the Public Prosecutor attacks the illicit patrimonies, using, more and more frequently, the criminal confiscation or the “broadened” confiscation, of Art 12, Law N° 356/92, rather than the confiscation of prevention.
It also happens, just as often, that the Public Prosecutor can take, from the beginning, the two paths: that of the measure of prevention and that of the criminal confiscations, including among these the “broadened”, pursuant to Art. 12 sexies; but the effects of the seizure and confiscation of prevention remain suspended according to the Art. 2 ter, para 10, Law N° 575/65, for the entire duration of the criminal proceedings and are extinguished if the confiscation of the same goods and properties in the criminal trial is decided.
The confiscation of prevention provided
for by the Law 31st May, 1965, N°575
and successive modifications
The measures of prevention are limitative measures that impose restrictions on the liberty of the person and on his legal patrimonial sphere and are applicable to subjects held to be dangerous. These measures have purposes of special prevention, i.e. directed towards the individual person, to neutralize the dangerousness in such a way as to prevent the commission of crimes.
In essence, the prevention measures differentiate from the criminal sanctions because they are applied independently of the commission of a crime, the sentence for which they are not a direct consequence. The prevention measure of the confiscation, in particular, was introduced into the system of the measures of prevention, disciplined by the Law, 31st May, 1965, N°575, of the Law 13th September,1982, N° 646.
With the passage of time, however, the regulations which discipline the system have undergone modifications and integrations introduced by numerous successive laws, above all, regarding the management and destination of the goods and properties confiscated and, finally, regarding the subjects to which the confiscation is applied, to the legitimate authorities that ask for the confiscation and to the crimes, the circumstances of which allow the application.
Once again, it must be underlined that the Law 31-5-65, N°575, and successive modifications, providing for the confiscation of goods and properties as a measure of patrimonial prevention, does not require, in order that it be decided, any conviction for any crime, whatsoever, pronounced against the subject for which the measure of prevention is proposed. Neither is it necessary for there to be any pertinency between the goods and properties to be confiscated and the crimes for which the necessary evidence exists to require the confiscation.
The subjects against whom the
confiscation of goods and properties can be applied
Before the Decree, 23rd May, 2008, N° 92, converted in law, came into force, the measures of patrimonial prevention were applied, under the clause 1, Law N° 575/65, to the suspects belonging to mafia, camorrist and other associations of the same type – howsoever called – in the places of origin. The Art. 10 Law N° 125/08 has modified the Articles 1, 2, and 2-ter Law N° 575/65, extending the applicability of the measures of patrimonial prevention also to the subjects suspected of one of the crimes provided for by Art.51, c. 3-bis, Code of Criminal Procedure.
The applicability of the measures of patrimonial prevention was then also extended by the Art. 14 of the Law, 19-3-1990, N° 55 to persons belonging to associations trafficking in narcotic substances and to the persons indicated in numbers 1) and 2) of the first paragraph of the Art.1 of the Law 27-12-56, N° 1423, when the criminal activity, from which it is held that the proceeds derive, is one of those provided for by the Articles 600, 601, 602, 629, 630, 644, 648-bis, or 648-ter of the Criminal Code, in other words, smuggling.
The Article 11-ter of the Law N°125/08 repealed Art. 14 of the Law 19-3-1990, N° 55. However, Art.19 of the Law 22nd May, 1975, N° 152, by virtue of which the regulations of the Law 31st May, 1965, N° 575 and successive modifications, are applied also to the persons indicated in the numbers 1) and 2) of the first paragraph of the Art.1 of the Law 27-12-1956, N° 1423, without the limitation contained in Art. 14 of the Law 90/55 and that is to say, of the provenance of the proceeds, exclusively from certain expressly listed crimes. The discipline that results, therefore, is more severe, also given that it is applicable to a greater number of persons.
It has been confirmed also by the judges of legitimacy (1)
that this is the correct interpretation and extent of the new regulations.
It has been said that the measures of patrimonial prevention are applicable to suspects belonging to mafia associations or similar, as well as subjects suspected of one of the crimes provided for by Art. 51, C. 3-bis, Code of Criminal Procedure, which presupposes for the application of the measures of prevention, personal or patrimonial, the “social dangerousness” of the proposed subject: not his sentence for a crime – not being the application of the measure of prevention connected to the commission of a crime – but to the tendency of the subject to commit it.
The first objective of the prevention proceedings is, therefore, to ascertain the dangerousness of the subject in question through the verification and evaluation of his behavioural patterns, symptomatic of his capacity to commit crimes and of his criminal tendency. Verification that must necessarily come about through the acquisition of circumstantial evidence”.
The meaning of “circumstantial evidence” and of the individuation of the “suspects under investigation” has been discussed at great length in doctrine and jurisprudence.
Regarding the “circumstantial evidence” necessary for the application of the measure of prevention, the debate, for some time now, has defined it as that probative acquisition in the presence of which “the fact to be ascertained”, that is to say, the capacity to commit crimes must be held probable. Nevertheless, it must be circumstantial evidence, the substance and synergic contribution of which, must exceed the mere suspicion, the conjectures and inferences, even without reaching the level of real and proper evidence sufficient to open a criminal trial.
In short, given the preventive social finality of the measures of prevention, the probative level required for the application of them is certainly less elevated compared to that required in the criminal trial, the purpose of which is, instead, repressive, inclining it to the application of a criminal sanction following the verification of the commission of a crime.
It follows that “suspects under investigation” must be considered those towards whom factual elements of sure symptomatic value are acquired, suitable to render reasonably probable that the “suspects under investigation” are really adherents to a mafia or mafia-type association or to other associations among those first indicated, or are rendered responsible for one of the crimes indicated in the Art. 1. of the Law N° 575/65 and of the Art.19 of the Law N° 152/75, as it is modified by the Law N° 125/08.
Before the modifications introduced by the Law 125/08, the authorities that could advance the proposal for the application of the personal and patrimonial measures of prevention to the Court were the National Anti-mafia Prosecutor, only for the personal measures, the State Prosecutor of the district where the dangerous person resides, and the Director of the DIA, delegated by the Secretary of the Interior (2)
By virtue of the Art. 2 of the Law N°575/65, as it is modified by the Art. 10 of the Law N° 125/08, the authorities which can now ask for the application of the personal measure of prevention are the National Anti-mafia Prosecutor, the State Prosecutor at the Court of the chief city of the district where the person resides, the Questore
(Officer in charge of the Police Force) or the Director of the Anti-mafia Investigative Direction (3)
. With regard to the Questore
, it is considered that, in absence of the regulations of specific indication, it must be that of the Province where the person resides; while the Director of the DIA, and the National Anti-mafia Prosecutor, by reason of the attributions entrusted to them by Law at national level, they can propose the application of the measures of prevention towards persons residing throughout the national territory, obviously advancing the proposal before the authorized Court according to the place of residence of the proposed person.
The new formulation of the Art. 2, at para3, establishes moreover, that at the hearing, before the authorized Court for the application of the measure of prevention, the functions of the Public Prosecutor are exercised by the State Prosecutor as in para1, and that is, by the District Prosecutor.
Instead, the application of the measures of patrimonial prevention can be requested, by virtue of the Art.2-bis Law N°575/65, as it is modified by the cited Art. 10 Law N°125/08, by the State Prosecutor at the Court of the chief city of the district where the person resides, by the Questore
or by the Director of the Anti-mafia Investigative Direction, no longer from the National anti-mafia Prosecutor, to which, instead, the Art.110-ter O.G., introduced by the Art.12 Law N° 125/08, reserves the power of assigning magistrates of the National Anti-mafia Direction to the district offices of the Director of Public Prosecution for the treatment of procedures of patrimonial prevention.
The same regulation allows the Director of Public Prosecution at the Court of Appeal, to decide for justified reasons, if the District Prosecutor requests it, that the functions of the Public Prosecutor for the treatment of the measures of prevention (personal and patrimonial) be exercised by a magistrate designated by the State Prosecutor, obviously not district, in the offices of the authorized judge.
With regard to such provision contained in Art. 110-ter O.G, it is considered that the literal formulation used by the Legislator in para 2 of the Art. cited “for the treatment of the measures of prevention”, being analogous to that used by the Legislator at para 4, of the Art. 110-bis O.G. where the expression “treatment of affairs” is used, is referable to both the investigations phase and to the trial phase, also because the Legislator does not specify the phase as he does in Art.51, para3-ter, Code of Criminal Procedure, wherein he makes exclusive reference “to the trial”.
It is now general opinion, after initial perplexities have been overcome, that, in relation to the crimes referred to in Art. 51, para 3-bis, C.C.p., the power of proposal the measures of patrimonial prevention, by now, belongs to the District Prosecutor and no longer to the ordinary Prosecutor to which the Law has, instead, reserved a specific competence as in Art. 19 Law 22-5-1975, N°152, modified by Art. 11 of the Law 125/2008. The most accredited orientation, also in jurisprudence (4)
is, therefore, that to the ordinary Prosecutor remains exclusively the assignments in matters of prevention referred to in Art. 19, Law N°151/75, modified by the Law N°125/08, which is, however, larger than that contained in the repealed Art. 14, Law N°55/90, by virtue of which the measures of patrimonial prevention could be applied also to the subjects indicated at numbers 1 and 2 of the Art. 1, para 1, of the Law N° 1423/565 “when the criminal activity, from which the proceeds are believed to derive, is one of those provided for by the Articles 600-601-602-629-630-644-648-bis or 648-ter Criminal Code, that is to say smuggling
”. The Art. 19, Law N°152/75, not containing the exact wording as above indicated, concerns, consequently, all the subjects indicated at numbers 1 and 2 of Art. 1, para1 of the Law N°1423/56, aside from the type of crime of which the assets can be considered as proceeds (5)
Finally, it must be added that the Law N°125/08, modifying the Art. 371-bis C.C.p. has given the functions of coordination and stimulating also with regard to the procedures of prevention to the National Anti-mafia Prosecutor; functions which are held to be of absolute usefulness, which allow the National Anti-mafia Prosecutor an adequate assessment of the state and complexity of the patrimonial investigations, with the purpose of being able to establish the application of magistrates from his office to the treatment of prevention procedures at the district offices of the Director of Public Prosecution.
The modified regulations authorize the National Anti-mafia Prosecutor to require from the district prosecutors news and information about the patrimonial investigations in course, finalized to the proposal of measures of patrimonial prevention, and to exercise, in the case of connected investigations finalized to the proposal of patrimonial application of measures of prevention, the functions of coordination, also towards the anti-mafia district directions and to the Investigative Police bodies to which these investigations have been entrusted.
The request of the application
of measures of prevention
Before the Law N° 125/08 came into force, the application of the personal measure of prevention constituted the necessary presupposition for the application of the patrimonial measure of prevention, in the sense that one could not ask for the seizure and confiscation of the goods and properties of a subject for whom there had not been requested, at least concomitantly, the personal measure of prevention.
Therefore, the application of the measure of patrimonial prevention could be asked both concomitantly to the personal measure, or subsequently to the application of this, and could be decided by the Court also after the application of the personal measure of prevention, but before its cessation.
Now, instead, by virtue of the modifications introduced by Art. 10 of the Law N° 125/08 that insert the para 6-bis after the para 6 of the Art.2-bis, Law N° 575/65, the measure of patrimonial prevention can be requested and applied also separately from the personal measure of prevention (6)
A lively doctrinaire debate has already begun over the interpretation of this regulation and on its real importance, in absence of decisions of the judges of merit and of the Supreme Court. In this situation, the most accredited orientation seems to be the one, according to which the judge of the prevention must, in any case, assess the validity of the assumptions of social dangerousness delineated by Art 1. Law N°575/65: if it were not this way, it would give rise to insuperable questions of constitutional legitimacy (7)
Therefore, it is held that the existence of dangerousness must be proved and that the patrimonial measure can be applied without applying that of the personal measure when the dangerousness is not existing or when it manifests itself with such modality such as to believe that the application of the personal measure is unnecessary.
The regulation, in the writer’s opinion, must be interpreted in the sense that, once ascertained the dangerousness of the subject, only the patrimonial measures can be applied to same when it results useless – by reason of the evidence deduced from the examination of the specific case – the application of a personal measure of prevention. If this were not possible, as some people believe (8)
, a convincing explanation would have to be found, also at a constitutional level for the confiscation of goods and properties of illicit provenance which belong to a police co-operator, the dangerousness of whom can certainly be excluded.
The very regulations on police co-operators (9)
offer a significant precedent in which the removal of goods and properties is not connected to the existence of the dangerousness of the subject, but to the illicit provenance of the goods and properties. Neither can the kind of measure of prevention be doubted with regard to the seizure and consequent confiscation of goods and properties indicated by the police co-operator; proof of this is that for the implementation of such hypothesis of seizure the regulation returns to the regulations of the Law N° 575/65.
It is just the occasion to remember that the police co-operator normally gives declarations concerning the crimes as referred in Art. 51, para 3-bis, C.C.p. including those associative ones, in relation to which he frequently assumes the character of the person under investigation first, and then of the defendant and the condemned person afterwards.
Therefore, there can be no doubt about the dangerousness of the subject, implied in the very belonging to criminal associations; just as there can be no doubt that this dangerousness, with the beginning of the cooperation, loses the characteristic of being an actual threat.
The regulations in examination, contained in the para 6-bis of the Art. 2-bis of the Law 31.5.1965, N° 575 and subsequent modifications, cannot but concern those persons the dangerousness of which is expressed precisely through the management of considerable economic and financial assets deriving from criminal activities, including the destination of these assets through reinvestment in the legal economy, which will certainly become polluted.
The capacity of infiltrating the legal economy, and especially in vital sectors like commerce, industry and the financial markets also constitutes a form of social dangerousness, which can no longer be neutralized with the personal measure of prevention, but with the confiscation of goods and properties.
To this point, only a few examples, considering that the regulations were only introduced a few months ago and their interpretation is still object of doctrinaire debate and that, for this reason, the regulations have not yet found diffused application. The reality will undertake to place the Judge in conditions to be able to assess, in the concrete case, the possibility of making a choice, of which the Supreme Court jurisprudence, within a short time, will provide to verify the response to the dictated regulations.
In conclusion, it is held that, by virtue of the new regulations, the choice of the measure to apply, personal or patrimonial, can now depend on the modalities of manifestation of the dangerousness. It could well happen that the dangerousness of a subject is neutralized exclusively by the confiscation of his goods and properties, and not from the special surveillance.
The application of the measure of patrimonial
prevention also in the case of death
Again, the new para 6-bis, Art. 2-bis Law N° 575/65, introduced by Art. 10, Law N° 125/08, establish that the patrimonial measures can be decided also in the case of death of the subject proposed for their application. In the case that death occurs in the course of the proceedings, the continuation of the measures is carried on towards the heirs, or, however, those who stand the right to the inheritance or part of it.
The para 9 of the Art. 2-ter – also this of recent introduction – decides that the confiscation can be proposed, in the case of death of the subject
towards whom it could be decided, in relation to the successors, within the term of five years from the decease.
On this point certain clarifications are necessary. The Art. 2-ter. Para 7, Law N° 575/65 establishes that the procedure of prevention can be started or continued also towards subjects who are absent or their residence or home is abroad. The proposal can be put forward by the State Prosecutor or by the Questore
of the place of last abode of the subject concerned, with the sole purpose of the application of the measure of patrimonial prevention, but only for the goods and properties for which there is motive to believe are fruits of illicit activity or constitute re-investment.
It is easy to observe how the hypothesis contemplated by the regulations contains two dispensations to the general rule: 1) only the goods and properties for which there is motive to believe are the fruit of illicit activity or constitute re-investment, can be attacked, and not any of the other assets, whose value seems disproportionate with respect to the declared income or economic activity of the subject (see Art. 2-ter para 2): the procedure of prevention is started and continued also in the absence of the proposed subject. The referred regulations provided nulla for the deceased subject. The gap, however, was filled by the jurisprudence of legitimacy (10)
after numerous oscillating decisions and not without a lively doctrinaire debate.
However, the experience of the fight against mafia criminality allowed the observation that the lack of specific regulations – in the sense that the measure of prevention could be required and applied also after the death of the subject “under investigation” – constituted, for the organized criminality, an irresistible temptation if the owner of the goods and properties was fictitious and the assets belonged to the clan or its bosses.
For a long time, the doubt was not unfounded that in certain cases the motive of crimes committed by members of the mafia organizations could be found in the fact that the victims were fictitious owners of the goods and properties belonging to the mafia association, and for this reason were eliminated by the affiliates of the same clan to avoid that the measure of patrimonial prevention could be asked in their regard. Beyond its negligible legal significance, it caused disconcertion in the public opinion, the fact that the death of subjects – notoriously considered, known and indicated as Mafiosi, intervened before their mafia origins were judicially recognized and thus, their dangerousness – could protect their goods and properties from the confiscation prevention and, in this way, their patrimony was transferred to the heirs, legitimately “re-cycled”, so to speak.
Probably, these were the reasons that persuaded the Legislator to introduce the new regulations.
Although the regulations provide that the patrimonial measures of prevention can be decided also in the case of death of the subject proposed for their application, the regulations, in the opinion of the writer, must be interpreted in the sense that the request for application of the measures can be proposed towards the person already deceased. The use of the expression “proposed subject” must not be taken to mean that the death of the subject must intervene in proceedings already started, but with it must be understood also the subject proposing or to be proposed for the application of the patrimonial measures of prevention (11)
This interpretation is authorized, first of all, by the second part of the same regulations, wherein they specify that “… In the case of death occurring in the course of the proceedings, said proceedings are continued towards the heirs or, however, to those having the right to the assets or part of them
The formulation of this part of the regulations makes it well-understood that the “ordinary case” governed by the regulations is that in which death occurs before the proceedings.
This is shown also by the regulation contained in para 9 of the Article 2-ter, also this newly introduced, in which is affirmed “that the confiscation can be proposed – in the case of death of the subject towards whom it could be decided – towards the successors, within the term of five years from the decease
”.. According to such regulation, the measure of patrimonial prevention can be requested (in this case, for obvious reasons, separately), even within five years of the decease.
It is obvious that also in the case in which the subject died before the proposal, the Judge must, however, ascertain that it concerns a subject who was under investigation for belonging to mafia associations or others similar, or under investigation for one of the crimes referred to in Article 51, para 3-bis,C.C.p., verifying in this way, the existence of the assumption of the measure of patrimonial prevention, or the dangerousness of the subject, or verifying that there already was – in a criminal procedure or in another procedure of prevention – the ascertainment of the dangerousness.
In fact, there were even those (12)
who held that this regulation should represent the only case of application of the measure of patrimonial prevention separate from the personal one. Others (13)
consider the new normative regulation a further step ahead in the direction of ascertaining, evaluating and neutralizing the “dangerousness” of the thing in itself”.
The object of the seizure and confiscation
According to the new formulation of the Art. 2-ter para 3, Law N° 575/65, introduced to Art.10 lett. d) Law N° 125/08, “With the application of the measure of prevention, the Court decides the confiscation of the goods and properties seized of which, the person towards whom the procedure is established, cannot justify the legitimate provenance, and of which, also by intermediary physical or legal, he is the owner, or has assets of any kind that are disproportionate in value to his declared income for the purposes of income tax, or to his economic activity, as well as goods and properties which result to be the fruit of illicit activity or constitute “re-investment
The formulation of the Art. 2-ter, para 2, in force, establishes that the Court orders, with motivated decree, the seizure “ of the goods and properties of which the person towards whom the procedure is started can dispose of, directly or indirectly, when their value is disproportionate to the declared income or to the economic activity exercised, or when, on the basis of sufficient evidence, there is motive to believe that the same goods and properties are the fruit of illicit activities or that they constitute re-investment
It was established in para 3 of the text previously in force, that “With the application of the measures of prevention, the Court decides the confiscation of the seized goods and properties of which the legitimate provenance has not been demonstrated
The two regulations, the one relative to the seizure dictated by para 2, and the one relative to the confiscation contained in the new para 3, must, therefore, be subjected to an integrated and homogenous reading, being able to observe that, according to the new regulation, the goods and properties of which “one cannot justify the provenance
” can be confiscated. While with the previous version of para 3, one could confiscate the goods and properties “of which the legitimate provenance had not been demonstrated
”. Beyond the ‘easy to guess’ implications on the burden of the evidence and on the circumstantial elements through which the “evidence” must be found, which the judges of merit and legitimacy will elaborate, applying the regulations in concrete terms, it would seem we can affirm that on the point, the Legislator has used the same literal formulation already used for the confiscation provided for by Art 12-sexies: confiscation of the goods and properties “of which the condemned person cannot justify the provenance” and of which “ … he is owner, or has assets of any kind that are disproportionate in value to his own declared income for the purposes of income tax, or to his own economic activity
It is added, however, that the Court decides the confiscation of goods and properties also when they are fruit of illicit activities or constitute re-investment.
Therefore, there are two parameters of reference, distinct one from the other and autonomously appreciable by the Court in deciding the confiscation: the disproportion of the value of the goods and properties or their illicit provenance.
The confiscation for the equivalent
Another important new regulation introduced by Art 10, Law N° 125/08 is represented by the prevision of the confiscation for the equivalent also for confiscation of prevention.
In para 8 of the Art. 2-ter, of new introduction, the Legislator has provided that “if the person towards whom the measure of prevention is proposed, dissipates, deviates, conceals or devaluates the goods and properties with the purpose of eluding the execution of the measures of seizure and confiscation of them, the seizure and confiscation have, as object, equivalent money or other goods and properties. The procedure is the same when the goods and properties cannot be confiscated insofar as their being legitimately transferred in good faith to third parties before the execution of the seizure
As can be observed, the confiscation for the equivalent was provided for in cases strictly indicated: dissipation, deviation, concealment or devaluation of the goods and properties with the purpose of eluding the execution of the measures of seizure or confiscation of them, or legitimate transfer of the goods and properties, in good faith, to third parties, before the execution of the seizure.
In short, the regulation has provided for the confiscation for the equivalent, the function of which is, substantially, that of compensating the absent acquisition by the State of the goods and properties of disproportionate value or of illicit provenance.
Such residual and compensative function of the confiscation convinces that it can also hit the assets of legal provenance of the condemned person. Whereas, the money or other goods and properties involved in the dissipation, deviation, concealment, devaluation or transfer of the goods and properties to be confiscated, allowing that such indicated activities constitute autonomous hypotheses of crime (e.g. Art. 2-quinques, Law N°356/92 and succ. modif.) constituting proceeds of crime and, therefore, are object of criminal confiscation under Art. 240, Criminal Code or of other special regulation provided for the eventual committed crime.
The confiscation for the equivalent must, therefore, fall on legitimately acquired goods and properties of the proposed subject, or of value proportionate to the income or economic activities of same.
The return of confiscated goods and
properties to the proposed subject
The Art. 10 Law N° 125/08 has introduced a new para 10 of the Art. 2-ter, according to which “When it results that goods and properties confiscated with definitive measure after the assignment or the destination have re-entered, also via intermediary, into the possession, or under the control of the person subjected to the confiscation measure, the revocation of the assignment or of the destination can be used by the same body that decided the relative measure
It concerns a new regulation suggested by experience, having happened that the goods and properties definitively confiscated have returned to the subject submitted to the confiscation after the destination or assignment of them under the Articles 2-decies and 2-undecies of the Law N° 575/65, and succ. modif. and it is not improbable that the same thing could happen in the future.
The nullity of the fictitious acts of transfer
The same Art. 10 Law N° 125/08 has introduced in Art- 2-ter, the paras 11 and 12: the first states “When assured that certain goods and properties have been fictitiously assigned or transferred to third parties, with the sentence that decides the confiscation, the Judge declares the nullity of the relative acts of the regulation”; the second adds: “To the purposes of the preceding para, until proof to the contrary, the following are presumed fictitious:
a) the transfers and the assignments, also on payment, effected in the two years preceding the proposal of the measure of prevention towards the ancestors in direct line, the descendants of the spouse or of the person permanently co-habiting as well as relatives within the sixth degree of kinship and acquired relatives within the 4th degree of kinship:
b) the transfers and assignments, gratuitously or on trust, effected in the two years preceding the proposal of the measure of prevention
It concerns regulations that are placed in correlation with those contained in para 8 of Art. 2-ter, which provides for the confiscation for the equivalent.
In fact, the acts indicated in paras. 11 and 12 can well constitute the instrument and modality of dissipation, deviation, concealment, devaluation and transfer of the goods and properties. These acts, at least, in the intention of the Legislator, should serve to avoid instrumental civil controversies, started by presumed third parties “in good faith”, who, claiming rights of property on the goods and properties, or attempting to exercise rights of guarantee, in reality, are attempting to avoid or delay the destination of the same goods and properties, according to what the Articles 2-decies and 2-undecies of the Law N° 575/65, and succ. modif. establish.
The Authority that applies the measures of prevention
The District Prosecutor, the Questore
or the Director of the Anti-mafia Investigative Direction (DIA), legitimated to request the application of the measures of prevention, formulate the proposal advancing it to the Court of the chief city of the province in which the community of the abode of the person proposed for the application of the measures of prevention is located.
With the purpose of advancing the request for application of the measure of patrimonial prevention, they proceed to verifications of the patrimonial investigations availing themselves of the services of the Guardia di Finanza and the Investigative Police.Object of the patrimonial verification are the standard of living; financial availability; the patrimony; economic activities and the sources of income; the ownership of licenses; authorizations; concessions; enrolments in registers; allocation of public financing and contributions and the concession of mortgages. The verification is also extended to the spouse, to co-habiting children or other persons (physical and legal) who can dispose of the patrimony of the person proposed for the measure.
The District Prosecutor and the Questore
(and, as it seems, not also the Director of the DIA, the para 4 of the Art. 2-bis not having been modified with the integration of the legitimate authority to request the seizure, as it was for the para 1 in relation to the request of application of the measures of prevention and to the patrimonial investigations) can request the Court for the seizure of the goods and properties for eventual confiscation and, if there is danger of dissipation, subtraction or alienation of the goods and properties, they can ask the President of the Court for the advanced seizure of them, which, however, must be confirmed by the Court, always in view of imminent confiscation.
The President of the Court decides, with motivated decree, the advanced seizure within 5 days of the request. The Court confirms the advanced seizure, 30 days from the proposal. The Court decides the seizure in the ordinary way. The Court can proceed, if it believes it necessary, to further patrimonial investigations. In the meantime, the State Prosecutor and the Questore
can proceed to further patrimonial investigations.
The Court decides the confiscation of the goods and properties with the term of one year from the seizure, deferrable for another year.
The procedure for the application of the measure takes place in the Council Chamber with the participation of the Public Prosecutor and of the Defending Counsel of the proposed subject.
The decree of application of the measure of prevention is contestable before the Court of Appeal, the motivated decree of which can be appealed in the Supreme Court. The decree that decides the confiscation of the seized goods and properties becomes enforceable with the definitiveness of the relative pronouncement.
It should be clarified that in the prevention procedure the free conviction of the Judge assumes particular importance, the only limit to which, is represented by the obligation of motivation. And again, the prevention procedure being founded, essentially, on documentary acquisitions, they do not employ, normally, the non-usability of acts of investigation provided for the criminal trial, unless it concerns non-usability determined by the violation of constitutional protection (14)
A discussion apart should be made for the principle of the cross-questioning dictated by the new Article 111.Constitution, for the formation of the evidence in the criminal trial, the scope of which is the ascertainment of the guilt of a defendant in relation to a crime. Nonetheless, the fact remains that also the Judge of the prevention must take this principle into account (15)
The criminal confiscation
The Criminal Code and numerous special laws provide for the confiscation of goods and properties as a measure of patrimonial, when they constitute pertinence to a crime.
Presuppositions of the criminal confiscation are, therefore, the conviction for a crime and the existence of a link of pertinence between the goods and properties to be confiscated and the crime for which a conviction was pronounced. The goods and properties are pertinent to the crime when they constitute the instrument, the price, the product or the profit.
The confiscation provided for by Art. 240, Criminal Code
The original and general hypothesis of the measure of patrimonial security is represented by the confiscation provided for by Art. 240 Criminal Code, the presuppositions of which are, as mentioned, constituted by the conviction for a crime and by the link of pertinency of the thing in relation to the crime committed. This confiscation, the only one among all the confiscations, is of two types: optional and obligatory.
The optional one can be ordered by the Judge, in the case of conviction, for the things that served or were designed to commit the crime and for the things that constitute the product or the profit of the crime.
The obligatory one is also ordered by the Judge for the things that constitute the price of the crime, or for the things – the manufacturing, the use, the possession or the alienation of that which constitutes crime – even if no conviction has been pronounced.
Over time, however, the Legislator – pressed by emergency situations – has introduced into the Criminal Code (Codice Penale
) or has provided in special laws, numerous hypotheses of criminal confiscation, among these: the confiscation provided for by Art. 416 bis, para 7, C.p. (crime of mafia association); the confiscation provided for by Art. 644 C.p. (crime of usury), the confiscation provided for by Art. 322-ter C.p.(crime against the Public Administration); the confiscation provided for by Art. 600-septies C.p. (crime of reducing into slavery) (Art 600 C.p.) prostitution of minors (Art. 500-bis C.p.), pornography by minors (Art. 600-ter C.p.) possession of pornographic material (Art. 600-quater C.p.); tourist enterprises directed to the exploitation of the prostitution of minors (Art. 600-quinquies C.p.); trade in human beings (Art. 601.C.p.); purchase and alienation of persons reduced in slavery (Art. 602 C.p.); the confiscation provided for by Art. 640-quater C.p. (crime of fraud); the confiscation provided for by Art. 301.D.P.R (Decree of the President of the Republic
) 23-1-73, N°43 (crime of smuggling); the confiscation provided for by Art. 12, paras 4 – 8 – 8-bis – 8-ter – 8-quater – 8-quinquies - 9 D.Lgs. 25-7-1998, N° 286 as is modified by Art. 2paras 1-2 D. Lgs, 13-4-1999, N°113, as well as by Art. 1 D.L.4-4-2002, N°51, converted, with modifications, in the Law 7-6-2002, N° 106 (crimes relative to clandestine immigration); the confiscation provided for by Art. 31 Law 13-9-1982, N° 646; the confiscation provided for by Art. 11 Law 16-3-2006, N° 146 (trans-national crimes), and many more.
The “broadened” confiscation provided
for by Art. 12-sexies D.L. 8-6-1992, N° 306,
and succ. modif.
It was introduced by Art. 2 D.L. (Law Decree
) 22-2-1994, N°123/94, repeated by the D.L. 246/94 and again by the D.L. 20-6—94, N° 399, converted, with modifications, in law 8-8-1994, N°501, immediately after the intervention of the Constitutional Court which, with the sentence N°48 of the 17-23 February, 1994, declared the constitutional legitimacy of the Art. 12-quinques, para 2, D.L.8-6-1992, N° 306 (unjustified possession of valuables).
Following the sentence of the Constitutional Court, the Government, inspired by the same motives of criminal policy which had induced it to promulgate Art. 12-quinques cited, issued, some days before the publication of the sentence of the Court, with the purpose of avoiding, at least, in certain cases, the loss of the effects produced by the abrogated regulation, the D.L: N°123/94, repeated more times until reaching the last D.L.N° 399/94 converted in law N° 501/94, with which, adding the Art 12-sexies, introduced the confiscation in question.
Substantially, with this regulation the Legislator wanted to pursue, even more forcefully, the strategic objective of dealing with the extremely serious phenomenon of organized crime, also with an effective and necessary combat instrument such as that represented by the measures of a patrimonial, suitable, on the repression and prevention level, to attack the wealth of the criminal organizations; attempting in this way to hit patrimonies disproportionate to the economic activities carried out by those belonging to the above mentioned organizations, and disproportionate to their income capacity, or in any case, illicit income accumulated and held also by third parties.
However, with the Art. 12-sexies, the Legislator has provided for a particular hypothesis of confiscation, the presupposition of which is the conviction or application of the penalty upon request, under the Art. 444, Code of Criminal Procedure (C.p.p.) of the subject for one of the following crimes: criminal conspiracy finalized to the trade in human beings (Art. 416, para 6, C.p.), reduction to, or maintaining in slavery or servitude, trade in human beings, purchase and alienation of persons reduced to slavery (Articles 600-601-602 C.p.) (16)
, association of a mafia kind (Art. 416 bis C.p.) extortion (Art 629 C.p.) kidnapping with the scope of extortion (Art 630 C.p.) usury and improper usury (Art.644 C., as it is modified by Art 1, Law 7-3-1996 N° 108 which abrogated the Art 644 bis C.p.), receiving stolen goods (Art 648, c.1, C.p.), money laundering (Art. 548-bis), fraudulent transfer of securities /Art. 12-quinques, c.1. D.L.8-6-92, N° 306, converted, with modifications, in Law 7-8-92, N° 356, or for any of the crimes relative to narcotic substances, provided for by Art 73, excluding the cases of small importance, and by Art. 74 D.P.R. N° 309/90; and furthermore, for one of the crimes committed availing oneself of the conditions provided for by Art. 416 bis C.p. or with an end to facilitate the activities of the associations of the same Article; as well as for crimes in matters of smuggling in the cases referred in Art. 295 c. 2 TU, (Unified Code) D.P.R. 23-1-1973, N° 43, and for crimes in matters of terrorism. With the financial Law 2007(Art. 1, para 220. Law27-12-2006, N°296), there have been included in the above listed crimes, also those provided for by the Articles314, 316, 316-bis,316-ter, 317, 318, 319, 319-ter, 320, 322,322-bis, 325 (in other words, almost all the crimes against the public administration). The same Law has introduced in Art. 12-sexies, para 2-bis, by virtue of which in the case of confiscation of goods and properties for one of the crimes against the public administration, as above indicated, the regulations on the management and on the destination dictated by the Articles 2-novies, 2-decies and 2-undecies of the Law N° 575/65 (17)
are applied for their management and destination.
With the Art. 10-bis of the Law N° 125/08, the para 2-quater has been inserted in the Art. 12-sexies, according to which the regulations on the management and on the destination of the goods and properties confiscated – ref: Articles 2.novies, 2-decies and 2-undecies of the LawN°575/65 – are applied also in case of conviction or application of the penalty upon request of the parties for any of the crimes provided for by the Articles 629, 630 and 648, excluding the case in the second para, 648-bis and 648-ter of the Criminal Code, as well as by the Art. 12-quinques of the same decree (d.l. N° 306/92, converted in Law N°356/92 and successive modifications), and of the Articles 73, excluding the case at para 5, and 74 of the T.U. D.P.R, N° 309/90.
Actually, the new regulation appears useless since already in para 4-bis it is established that to the confiscation cases provided for by paras 1 to 4, are applied the regulations in matters of management and destination of the goods and properties seized, or confiscated, provided for by the Law N° 575/65 and succ. modif., and therefore, also those of Articles 2-novies, 2-decies and 2-undecies. Since among the crimes presupposed for the confiscation, indicated by para 1, there are also those of Articles 629, 630 and 648, excluding the type of situation, reference to second para, 648-bis and 648-ter of the Criminal Code, as well as Art. 12-quinques of the same decree (d.l.N°306/92, and succ. modif.),and of the Articles 73, excluding the type of situation, reference to para 5, and 74 of the T.U. DPR N°309/90,also in such case, therefore, the observations already treated with reference to para 2-bis are valid. (18)
The other conditions required by the regulation, to be able to decide the confiscation are: the existence of a group of patrimonial elements constituted by money, goods and properties or other utilities of which the subject is owner or has the use, also through a third party – physical or legal entity – and/or the power to dispose of them for whatever reason; the disproportionate value of such patrimonial group compared to the declared income for purposes of income tax, or to the economic activity; the lack of justification of the provenance of the above said goods and properties.
The Art. 10-bis of the Law N° 125/08 has included in the Art. 12-sexies, after the para 2-bis, the para 2.ter, according to which “In the case provided for by para 2, when it is not possible to proceed to the confiscation in application of the regulations herein referred, the Judge orders the confiscation of the sums of money, of goods and properties and of other utilities of which the guilty party has the power of disposal, also through third party, to a value equivalent to the product, profit or price of the crime
”. With this last regulation the Legislator has provided for the ‘confiscation for the equivalent’ or of value also in the case of broadened confiscation provided for by Art. 12-sexies.
But, it can be observed that the literal formulation of the regulation appears inappropriate, unless, as already said, in such hypothesis of confiscation, there is no link of pertinency between the goods and properties confiscated and the presupposed crime of the same confiscation, in the sense that the goods and properties object of the confiscation are not product, profit or price of the crime for which conviction intervened, but they are goods and properties which are of disproportionate value compared to the economic activity or to the income of the subject in whose regard the confiscation was decided and who cannot justify the legitimate provenance (19)
On the basis of the presuppositions and of the conditions of applicability of the broadened confiscation of Art. 12-sexies Law N° 356/92, I do not think that the legal nature of the measure of patrimonial security of the confiscation in question can be doubted; although such measure can be considered a special hypothesis that under the Art. 15 C.p. departs from the general regulations imposed by Art. 240 C.p., it maintains all the typical characteristics of the measure of patrimonial security (20)