FROM THE ITALIAN EXPERIENCE AGAINST ORGANIZED CRIME …

Themis 2017 Competition Semi-final A, Sofia

XII Edition 10th

-13th April 2016

FROM THE ITALIAN EXPERIENCE

AGAINST ORGANIZED CRIME

TO A EUROPEAN MODEL OF CONFISCATION

Pecuniary measures and protection of fundamental rights

A field in Calabria run by Libera, an NGO committed to the recovery of land and real estate

confiscated to the mafia

Team: ITALY

Trainees:

Mr ENRICO CINELLA DELLA PORTA - judicial trainee, Court of Florence

Ms SIBILLA OTTONI - judicial trainee, Court of Rome

Mr ALESSANDRO QUATTROCCHI - judicial trainee, Court of Palermo

Trainer:

Ms GABRIELLA CAPPELLO - senior judge, Supreme Court of Cassation

Themis 2017 Competition, XII Edition – Team ITALY

From the Italian experience against organized crime to a European model of confiscation

1

SUMMARY: 1. Introduction. – 2. The Italian experience: prevention confiscation as main instrument to

oppose organized crime. – 3. The role of preventive confiscation in the EU Framework. A possible model for

harmonization that still faces difficulties in obtaining mutual recognition. – 4. Pecuniary measures in the

Multilevel System of Human Rights protection. – 5. Conclusions.

1. INTRODUCTION.

Pecuniary measures assume particular centrality in the modern criminal law, aimed at

overcoming the primacy of imprisonment and at the same time at tackling the phenomenon of

crime, especially in its collective, transnational and economic dimension. Such centrality is fortified

by the gradual taking of awareness that a more effective system to oppose crime, especially

organized crime, would consist in engraving its economic grounds. In fact, taking away the profit

makes sure that “crime does not pay” and provide a very effective mechanism to contrast criminal

activities.

Confiscation, which essentially consists in a deprivation of property in relation to a criminal

offence and its transferring to the State, represents the main instrument in order to achieve this goal.

In particular, it is regarded not only as a very effective tool for taking down on organized crime1,

but also for reducing the threat of infiltration of criminal groups in licit economic activities2.

The main problem is that present-day organized criminal groups operate beyond and across

national borders, in States different from those in which they are settled, moving their money across

Europe, investing, laundering and hiding their assets3. In fact, the EU framework allows citizens,

including criminals, to move freely across Europe, to transport their capitals and to purchase

property abroad4. This situation calls for new and more effective cooperation tools. So, if there are

no borders for criminals, there should also be no borders for those police officers and prosecutors

committed to fight organized crime. If decisions on confiscation and freezing of assets are not

recognized on the other side of the border, criminals will be able to shelter their assets just by

moving them from one country to another.

1 E.U. Savona, M. Riccardi, G. Berlusconi, Organised Crime in European Businesses, London, Routledge, 2016.

2 E.U. Savona, M. Riccardi, From illegal markets to legitimate businesses: the portfolio of organised crime in Europe.

Final Report of Project OCP – Organised Crime Portfolio, Trento, Transcrime – Università degli Studi di Trento, 2015. 3 The 2010 operation “Shovel” is just an example of an extensive criminal network involved in drug and weapons

trafficking, money laundering, forgery of documents and murders in several EU countries. The same organized criminal

group had also branches in more than 20 countries around the world, where they would launder the proceeds of their

illicit activities. Only collaboration among Member States led to 38 arrests (between Spain, UK, Ireland and Bulgaria)

and to the freezing of 60 luxury properties on the Costa del Sol, 25 Luxury cars and 180 bank accounts. Cf.

https://www.unodc.org/cld/case-law-doc/drugcrimetype/esp/operation_shovel.html. 4 Socta 2013. EU Serious and Organised Crime Threat Assessment, Europol, 2013.

https://www.unodc.org/cld/case-law-doc/drugcrimetype/esp/operation_shovel.html



2

This explains the growing need of an efficient mutual recognition of confiscation orders and

of an effective cooperation between European countries. Actually, a number of international treaties

have included mutual recognition of confiscation since the second half of the ‘80s up to the present

day5 and, in recent years, the same European Union introduced common minimal rules on recovery

of criminal assets. But, even if the current legal framework at EU level includes mutual recognition

of confiscation orders, it is patchy, out of date and leaves significant lacunae which are exploited by

criminals. In fact, according to recent research6, 98.9% of criminal profits in Europe are not

confiscated, amounting to a total of about € 110 billion. Unfortunately, in the words of Europol,

“crimes still pay”.

Nevertheless, the EU recognizes that profit is the main motive for crime and that money

laundering is at the core of organized crime7. Therefore, confiscation should continue playing a key

role in the EU strategy against criminal organizations8, and, for this reason, it is in act an

improvement of cross-border cooperation, as witnessed by the recent proposal for a regulation of

the European Parliament and of the Council on the mutual recognition of freezing and confiscation

orders9.

In light of the above, the present paper intends to examine the evolution and the perspectives

of modern confiscation mechanisms for an efficient recovery of criminal assets and the EU state of

the art on the matter. This aim will be pursued moving from the Italian regulation of confiscation,

which represents a reference point in the fight against organized crime and could become a model to

be exported to EU and other Member States. All this without neglecting the instances of protection

of fundamental rights established by the EU Charter of Fundamental Rights and the European

Convention on Human Rights.

5 In particular, it comes into consideration: The United Nations Convention against Illicit Traffic in Narcotic Drugs and

Psychotropic (1988); The Council of Europe Strasbourg Convention on Laundering, Search, Seizure and Confiscation

for the Proceeds from Crime (1990); The United Nations Convention against Transnational Organised Crime (UNTOC,

2000); The United Nations Convention Against Corruption (UNAC, 2003); The Council of Europe Convention on

Laundering, Search, Seizure and Confiscation of the Proceeds from Crime and on Financing of Terrorism (2005). 6 Europol, Criminal asset recovery in the EU, Survey of Statistical Information 2010-2014.

7 Tampere European Council of 15 and 16 October 1999.

8 An open and secure Europe serving and protecting the citizens, Council document 17024/09, adopted by the European

Council on 10/11 December 2009; Proceeds of organised crime - Ensuring that 'crime does not pay', COM (2008) 766

final. 9 COM (2016) 819 final.



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2. THE ITALIAN EXPERIENCE: PREVENTION CONFISCATION AS MAIN INSTRUMENT TO

OPPOSE ORGANIZED CRIME.

2.1. The origin of the Italian preventive system.

Italy, being the country where mafia has developed, has a wealth of experience in

fighting against organized crime. On this matter, Italian legal system is characterized by the

introduction of several types of “preventive measures”, aimed at protecting primary interests, like

public order and the safety of persons, in a phase prior to (and regardless of) the commission of

crimes (i.e. ante or praeter delictum).

Moreover, crime prevention, as a legitimate aim of every civilized legal system, is

considered more “noble” than mere repression. In the words of Beccaria, “it is better to prevent

crimes rather than punish them. This is the aim of every good legislation”10

. So, while prevention

looks forward, repression looks backward.

Prevention measures constitute a unique peculiarity of Italian legal system. Born with the

Zanardelli Criminal Code and with the Law of public security of 1889, during the Fascist regime

they became an effective instrument to neutralize socially undesirable people and repress politically

dissenting subjects. Then, corrected by Italian Constitutional Court (which constantly reviewed

their constitutional legality under the democratic Constitution of 1948) and reorganized by the Law

no. 1423 of 1956, preventive measures were exploited for neutralize several categories of dangerous

persons11

. Among these categories, Law no. 575 of 1965, containing “Provisions against the

mafia”, included persons suspected of belonging to the mafia-type associations.

This kind of preventive measure are personal, since they restrict individual personal freedom,

for example with an “expulsion order” (whereby individuals who are a threat to security is ordered

to return in the place of residence) or an “oral warning” (by means of the order to keep lawful

conduct to individual suspected of committing a crime) or, again, through a “special police

supervision” (which may be combined with the prohibition on residence in any municipalities or

with the compulsory residence in a specified municipality). So, mafia suspects could be restricted in

their personal liberty or freedom of movement without having to go through criminal proceedings,

bypassing prosecutors’ difficulties in bringing to a successful end trials with charges of organized

10

C. Beccaria, On crimes and punishments, 1764. 11

Such as individuals who may be regarded as habitually engaged in criminal activities; individuals who may be

considered as habitually living of the profits of crimes; individuals who may be considered as being prone to the

commission of crimes that offend or endanger the physical or moral integrity of minors, health, safety or public

tranquillity (article 1 of 1956 Act).



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crime12

.

Later, the Law no. 646 of 1982, regulating “mafia-type criminal associations and provisions

on preventive measures concerning property”13

, marked a turning point in the path of fighting

organised crime by introducing financial prevention measures concerning propriety and, above

all, preventive confiscation. This anti-mafia tool was specifically introduced in order to counter the

economic power of mafia, changing and evolving the contrast policy and strategy, now focused on

the fight against criminal assets more than against single individuals, that mafia-type association

can easily replace. In other words, it is more effective to tackle criminals’ properties, rather than

temporarily restricting their liberty.

Moreover, the Law no. 125 of 2008, aimed by the purpose of improving public security,

introduced the principle of disjoint application of prevention measures against persons and

financial prevention measures, which thus resulted strengthened. In particular, the law provides the

possibility of application financial preventive measures without the personal one, even in case of

death of the person concerned.

Finally, in order to “unravel” the legal “tangle” due to many years of legislation stratification,

the Legislative Decree no. 159 of 2011 was issued, also known as “Anti-mafia and prevention

measures Code”, with the aim of gathering and reorganizing in a single legislative text the whole

pre-existing dispersed regulations. Through this intervention, the prevention system definitively

passed from an approach centred on “dangerousness of the subject” to one focused “on the illicit

acquisition by a dangerous person” (or a person who has been dangerous in the past).

2.2. Non-conviction based preventive confiscation.

In the Italian legal system there are different types of confiscations and it is difficult to

categorize each one into a precise theoretical framework. So it is often said that confiscation has a

hybrid nature. Some can be imposed only within criminal proceedings (criminal confiscations),

following a conviction or even without requiring a finding of liability against the defendant. Other

12

Difficulties in part due to the high standard of proof for criminal cases (“beyond any reasonable doubt”) and in part

due to the complexity of bringing solid evidence before the court (in particular testimonial evidence, given the general

fear of people to testify against mafia criminals). 13

Known as the “Rognoni-La Torre Act” from the names of the Ministry of Justice (Virginio Rognoni) and

parliamentarian (Pio La Torre) who proposed it, the 1982 Act also introduced into the Criminal Code Article 416-bis,

governing the crime of mafia-type criminal association. It is important to highlight that the parliamentary La Torre was

killed by mafia on April 30 1982, after (and due to) the proposal of this important anti-mafia law, but before its

approval. In that same year, thus, the Italian Parliament finally adopted this epochal law, which marked a fundamental

turning point in the fight against mafia, also for its great symbolic impact.



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confiscations, instead, are issued outside of criminal proceedings in a distinct and autonomous set of

proceedings.

This is the case of preventive confiscation, which is characterized for being wholly

independent from criminal conviction, even if in practice there is often a link between the

preventive measure and the criminal proceeding. In fact, preventive measures are often applied

when criminal proceedings are underway and are frequently based on elements collected during

investigations into criminal offences. Nevertheless, preventive confiscation formally remains

outside of criminal justice system, belonging to an area that is formally administrative punitive

law. Yet, preventive proceeding remains a fully judicial proceeding (only a court can impose

preventive measure, assuring a minimum set of safeguards for the defendant)14

.

Thus, preventive confiscation is a non-conviction based confiscation, applicable only to

subjects who are (or have been) socially dangerous15

, when included in the subjective categories

identified by the law (above all, suspects of belonging to mafia-type associations) and when certain

conditions are met: 1) the direct or indirect availability of the asset by the subject; 2) the

impossibility of the subject to justified property provenance; 3) the existence of sufficient

evidence of the fact that the goods have illicit origin or are the result of reinvestment of the

proceeds of crime (such as their disproportion with regard to the declared income or the

activity carried out by the subject).

The relevance of indirect availability of the goods makes possible to impose a confiscation of

property formally owned by a person different from the targeted individual (so called “third

party”). In this case, third parties are invited to participate in the hearing with a trusted lawyer of

their own choice. They are required to prove that they legitimately acquired the property without

being aware of its illicit origin (i.e. their “good faith”).

Moreover, even if the targeted subject conceals or sells the asset, the court is allowed to

confiscate other properties of the same person for an equivalent value (so called “equivalent

confiscation”).

It is also possible to request and apply preventive confiscation against a deceased person

(against his universal or particular heirs), but just within five years after his death. The five-year

14

M. Panzavolta, R. Flor, A Necessary Evil? The Italian "Non-Criminal System" of Assets Forfeiture. In J. Peeter Rui,

U. Sieber (eds.), Non-Conviction Based Confiscation in Europe, pp. 111-150, Berlin, Max -Planck-Institute, 2015. 15

In order to verify the existence of “social dangerousness”, it is needed a comprehensive assessment of the whole

personality of the subject, as resulting from all the social events of his life, and the ascertainment of an unlawful and

antisocial conduct, that makes necessary a specific control by public security police organs.



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time limit is grounded in the need to assure some degree of certainty for economic operators.

2.3. The nature of preventive confiscation.

It is often asked if preventive confiscation intends neutralize dangerous individuals,

acting like an actio in personam, or blocking the dangerousness of certain property, thus being an

action in rem. After the 2008 separation of personal and financial measures, commentators

concluded that the separation of financial preventive measures from personal ones makes anti-mafia

confiscation an actio in rem wholly focused on the dangerousness of the property16

.

However, it is not possible to subscribe to this conclusion without considering that

preventive confiscation remains partially linked to the individual conditions: it is still needed a

relation of the assets with a dangerous person. Yet, it would also be wrong to categorize the system

as directly against dangerous individuals, being no longer necessary the present person’s

dangerousness.

For this reason, the system seems to be a hybrid, where individual dangerousness is utilized

in order to identifying assets deemed to be dangerous.

At this point, it is therefore appropriate to establish if financial preventive measures, and in

particular preventive confiscation, can be considered as criminal penalty or not, despite the label

given by the legislator. The difference is not irrelevant, because from it depends the application of

the fundamental principles of the criminal justice (such as the non-retroactivity principle).

The issue was remitted to the Joined Sections of the Court of Cassation, which, despite the

possibility of ordering the confiscation regardless of the “current” dangerousness of the individual,

stated that anti-mafia confiscation does not have legal nature of criminal sanction (so it can be

applied also retroactively)17

.

The Court of Cassation explained that, with respect to preventive confiscation, the

connotation of dangerousness is inherent to the asset, due to its illegally acquisition, which affects it

genetically, permanently and indissolubly. Thus, the social dangerousness of the individual

reverberates on goods illegally purchased in a dynamic projection, based on the objective

dangerousness of keeping things of illicit origin inside the market, which may be contaminated.

Therefore, it is essential the temporal correlation between individual social dangerousness (even

past and not current at the moment of the confiscation) and the time when goods were purchased

16

A. Balsamo, Il procedimento di prevenzione patrimoniale, in A. Balsamo, V. Contraffatto, G. Nicastro, Le misure

patrimoniali contro la criminalità organizzata, Milano, 2010, p. 38. 17

Court of Cassation, Joined Sections, judgment no. 4880 of 26 June 2014, Spinelli.



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(otherwise, confiscation would become a mere “punishment of the suspect”, in contrast with

constitutional and conventional guarantees). It follows the preventive non-criminal nature of

anti-mafia confiscation, as aimed at preventing future criminal conducts and lifestyles contrary to

the rules of civil society through the deterrent efficacy of deprivation of illicit property.

Thus, concluding with the words of the Constitutional Court, even if “preventive measures

entail considerable limitations to fundamental rights enshrined in the Constitution, […] these

limitations are based on the need to guarantee the orderly and peaceful course of social relations,

not only through a body of legislation penalizing unlawful acts, but also trough provisions intended

to prevent the commission of such acts. […] And this is a requirement and a fundamental principle

of every democratic legal system, accepted and recognized by our Constitution”18

.

3. THE ROLE OF PREVENTIVE CONFISCATION IN THE EU FRAMEWORK. A POSSIBLE MODEL

FOR HARMONIZATION THAT STILL FACES DIFFICULTIES IN OBTAINING MUTUAL RECOGNITION.

It has been already pointed out that EU regards confiscation as a very effective instrument to

fight organized crime, but also to reduce the threat of infiltration of criminal groups in licit

economic activities19

. There is indeed substantial evidence of criminals moving their money across

Europe, often investing in large urban areas and tourist or coastal areas 20

.

To achieve a widespread and effective use of confiscation, EU is following a two-fold

strategy:

- promoting harmonization of legislations of Member States; and

- providing a legislative framework that allows mutual recognition of decisions.

In this part of our paper, we will firstly provide a quick overview of EU legislation on seizure

of criminal assets and we will then analyse what is the role of preventive confiscation in this

strategy. Is this instrument being promoted by EU legislation? Are at least Italian preventive

confiscation orders being recognized by other Member States?

3.1. A brief glance over harmonization.

The EU is developing some minimum rules that all Member States are required to comply

18

Constitutional Court, judgment no. 27 of 5 May 1959. 19

E.U. Savona, M. Riccardi, G. Berlusconi, Organised Crime in European Businesses, London, Routledge, 2016. 20

E.U. Savona, M. Riccardi, From illegal markets to legitimate businesses: the portfolio of organised crime in Europe.

Final Report of Project OCP – Organised Crime Portfolio, Trento, Transcrime – Università degli Studi di Trento, 2015.



8

with. This strategy ensures that at least some basic forms of confiscations are used for the most

serious crimes. The aim is approximation of legal system and promotion of best practices.

- Council Framework Decision (FD) 2001/500/JHA on money laundering, the

identification, tracing, freezing, seizing and confiscation of instrumentalities and the proceeds

of crime.

- Council Framework Decision (FD) 2005/212/JHA on Confiscation of Crime-Related

Proceeds, Instrumentalities and Property requires that ordinary confiscation, including value

confiscation is made available for all crimes punishable by 1 year imprisonment (art. 2). Extended

confiscation must be introduced for certain serious offences, when "committed within the

framework of a criminal organization" (art. 3).

- Directive 2014/42/EU on the freezing and confiscation of instrumentalities and

proceeds of crime in the European Union addresses some the criticism faced by the 2005

legislation, mainly by increasing the scope of extended confiscation.

3.2 Judicial cooperation and mutual recognition. Positive experiences and a few setbacks.

Harmonization of Member States’ legal regimes of confiscation would not be sufficient to

effectively fight organized crime. Judicial cooperation and mutual recognition of decisions are of

key importance throughout the process that leads to confiscation of criminal property and assets. To

effectively seize property across the border, a judicial body would need to:

1. Trace and identify assets and property owned by the defendant across the border

(investigative phase).

2. Freeze these assets while pending judicial decision (preservation phase).

3. Obtain recognition and execution of the confiscation from the foreign authorities

(confiscation and enforcement phase).

4. Agree with the foreign authorities on the destination of the seized assets (redistribution

and utilization phase).

It then appears that confiscation is a complex and often time-consuming process, but EU has

provided tools to facilitate this multi-step process when another Member State is involved:

- Investigation and exchanging of information.

o To facilitate collaboration, Council FD 2007/845/JHA 103 requires member states to set

up at least one Asset Recovery Office (ARO) to facilitate the tracing and identification of proceeds

of crime.



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o Several networks have been established. EUROPOL has created the Europol Criminal

Assets Bureau (ECAB) which supports Member States in the identification and confiscation of

criminal proceeds. Europol also manages the SIENA, a secure communications tool for exchanges

of information between Member States. There is evidence that AROs are increasing their use of the

SIENA network: from 2012-2015, the messages exchanged per year increased from 452 to 3703

and 46% of these exchanges resulted in the actual identification of assets21

.

- Freezing of assets is allowed by the Council FD 2003/577/JHA on the execution in the

European Union of orders freezing property or evidence.

- Compensation to the victim is covered under Council FD 2005/214/JHA on financial

penalties, including compensation orders that may encompass proceeds of crime.

As for Mutual recognition of confiscation orders, this is covered by FD 2006/783/JHA on the

application of the principle of mutual recognition to confiscation orders, as amended by FD

2009/299/JHA of 26 February 2009. This FD requires each Member State to recognize and

execute in its territory confiscation orders issued by a court competent in criminal matters of

another Member State. Within its scope, FD 2006/783/JHA appears as a powerful instrument.

There is indeed evidence that mutual recognition has led to several successful recoveries of

assets. Italy, for example, has been able to freeze € 400,000 in the Netherlands and over 800 kg of

counterfeit products in 10 countries22

. According the UK Crown Prosecution Office, in 2013 alone

£3 million were returned by UK to third countries following confiscation. In 2014-2015, the amount

had already increased to £16 million and by 2015-2016 it had reached £29 million23

.

Unfortunately, there is also evidence that judges and prosecutors across Europe are

experiencing some difficulties. Several reports by EU bodies as well as a number of independent

studies24

have highlighted the following critical points:

21

Commission Staff Working Document Impact Assessment, Accompanying the document Proposal for a regulation of

the European Parliament and of the Council on the mutual recognition of freezing and confiscation order, Brussels,

21.12.2016 SWD (2016) 468 final. 22

Commission Staff Working paper accompanying document to the Proposal for a Directive of the European

Parliament and the Council of the freezing and confiscation for proceeds of crime in the European Union, SWD(2012)

31 final. 23

ERA Presentation by Jonathan Spicer, UK Crown Prosecution Service, 19.5.2016 24

Report on Eurojust's Experience in the field of Asset Recovery, including Freezing and Confiscation, 2015; J.

Forsaith et Al., Study for an impact assessment on a proposal for a new legal framework on the confiscation and

recovery of criminal assets, RAND Europe, 2012; Report from the Commission to the European Parliament and the

Council of 23.8.2010, COM(2010) 428 final; Assessing the effectiveness of EU Member States’ practices in the

identification, tracing, freezing and confiscation of criminal assets, Matrix Insight, 2009; European Parliament, The

need for new EU legislation allowing the assets confiscated from criminal organisations to be used for civil society and



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- Implementation of the FD has been slow, partial and incomplete. Italy, for example, has

updated its legislation only in 2015 (Legislative Decree 137 of 7 August 2015).

- Additional reasons for non-recognition have been added by several countries, thereby

limiting the scope of practical application of FD 2006/783/JHA.

- The standardized forms provided by EU are perceived as lengthy and complicated,

driving practitioners to resort to other agreements on mutual cooperation25

.

These issues seem to be a real obstacle to a more complete implementation of mutual

recognition26

. Eurojust contends that in drug trafficking cases there is very limited utilisation of

over the border freezing and confiscation orders27

. Data from Member States confirm this trend. In

2013, the Irish Central Authority received and transmitted a total of 784 requests for assistance: of

these only 5 were requests for freezing and confiscation. In 2014, Poland issued 3,838 requests

for a European Arrest Warrant, while only 2 requests for confiscation were transmitted. The

same year, the Netherlands received and transmitted a total of 1,376 requests for a European Arrest

Warrant, but the total number of requests for confiscation was just 2528

. There is therefore little

doubt that mutual recognition of confiscation is lagging behind other cooperation tools, like the

European Arrest Warrant.

3.3. The role of preventive confiscation and future developments (the 2016 Proposal of

Regulation on mutual recognition).

We have seen that EU is seeking to promote harmonization of confiscation legislation and, at

the same time, to ensure mutual recognition of decisions between Member States. We will now look

at how preventive confiscation fits in this picture: its role as a possible model for harmonization and

the difficulties it still encounters in being recognized and executed over the border. It can be said

that, although these measures are regarded by international experts as highly effective29

, they are

also extremely controversial and there is resistance to their application.

FD 2006/783/JHA on mutual recognition covers any confiscation decision allowed by the

in particular for social purposes, Brussels, 2012. 25

Mihaly Fazekas, Eva Nanopoulos, The Effectiveness of EU Law: Insights from the EU Legal Framework on Asset

Confiscation, European Journal of Crime Criminal Law and Criminal Justice 24(1), pp. 39-64. 26

European Commission, Proposal for a Regulation of the European Parliament and of the Council on the mutual

recognition of freezing and confiscation orders, Brussels, 21 December 2016. 27

Final results of the Strategic Project on “Enhancing the work of Eurojust in Drug Trafficking Cases” (January 2012) 28

Commission Staff Working paper accompanying document to the Proposal for a Directive of the European

Parliament and the Council of the freezing and confiscation for proceeds of crime in the European Union, SWD (2012)

31 final 29

L. Gray, Few and Far. The Hard Facts on Stolen Asset Recovery, StAR Initiative Report, 2014.



11

issuing Member State (art. 2 d. iv.); this means that other Member States can recognize Italian

preventive confiscation decrees. Yet, recognition of these decisions is not mandatory and each

Member State can decide not to accept them (article art. 8 n. 2, G). Recognition of preventive

confiscation decisions against mafia-type organizations is therefore not guaranteed. This has

sometimes forced Italy to resort to the 1990 Convention on Laundering, Search, Seizure and

Confiscation for the Proceeds from Crime, which includes recognition of non-conviction based

confiscation (NCBC). This strategy has been successful in some cases. In 2003, the French

Supreme Court authorized seizure of a real estate in Antibes, thereby executing a decree based on

Italian legislation on preventive confiscation (Crisafulli case). In 2011, the Swiss Federal Court also

ruled that preventive confiscation decisions can be recognized since Switzerland also utilizes

NCBC30

. Unfortunately, when orders based on NCBC are transmitted to countries that do not have

this instrument in their national legislation, refusal of execution is the most likely outcome; several

Member States have indeed stated that they are not ready to recognize CBC orders31

. In these cases,

the issuing Member State needs to be creative to achieve seizure of assets. For example, UK is

following a strategy of providing Spain with evidence so that crimes are persecuted in Spain and

assets are eventually confiscated based on Spanish orders.

As for harmonization of confiscation instruments, preventive confiscation is playing an

increasing role, but it is not yet perceived as a model. Directive 2014/42/EU can be regarded as

an improvement as compared to FD 2005/212/JHA, as it increases the use of extended

confiscation (which goes beyond the direct proceeds of a crime) as a key instrument in the fight

against most serious crimes32

. The Directive also requires confiscation from third parties, if those

third parties “knew or ought to have known that the purpose of the transfer or acquisition was to

avoid confiscation”. But when it comes to NCBC, this is only required when it is not possible to

reach a final decision due to “illness or absconding of the suspected or accused person.” Other

NCB measures like preventive confiscation or the UK in rem confiscation have not been used

as a model for harmonization “European Confiscation”. This despite the conclusions of the

European Committee on Civil Liberties, Justice and Home Affairs (LIBE), which suggested to use

NCBC as a standard European tool, stating that “in some cases, even in the absence of a criminal

30

E. Nicosia, Il Tribunale penale federale svizzero accoglie una rogatoria della Procura di Milano finalizzata alla

confisca, comments on Swiss Federal Supreme Court, II Chamber, 21 January 2011, Diritto Penale Contemporaneo, 11

July 2011. 31

Comparative Law Study of the implementation of mutual recognition of orders to freeze and confiscate criminal

assets in the European Union, JUST/2011/JPEN/PR/0153/A4, FINAL FINDINGS REPORT, Luxembourg, 2014. 32

A. M. Maugeri, La Direttiva 2014/42/UE relativa alla confisca degli strumenti e dei proventi da reato nell'Unione

europea tra garanzie ed efficienza: un ''work in progress'', in Diritto Penale Contemporaneo, 19 settembre 2014.



12

conviction, it should be possible to confiscate assets in order to disrupt criminal activities and

ensure that profits resulting from criminal activities are not reinvested into the licit economy or in

criminal activities”33

.

A larger role for NCBC could be introduced by a Proposal for Regulation on mutual

recognition that has been put forward by the European Commission in December 201634

. The

instrument would replace FD 2006/783/JHA and presents several advantages. Firstly, the use of a

directly applicable legal instrument would reduce the risk of slow, inconsistent or incomplete

transposition by Member States. Also, the Regulation contains deadlines for both freezing of assets

and confiscation. As regards preventive measures, these are clearly included in the Regulation,

which would then make it mandatory to recognize these orders in all Member States. If not

modified, the Regulation would have an extended scope compared to Council Framework Decision

2006/783/JHA, but also compared to Directive 2014/42/EU. It would cover third-party confiscation

and criminal NCBC (including cases of death of the defendant) and it will not allow Member States

to refuse recognition in case of extended confiscation and preventive confiscation35

.

To sum up, it seems that preventive confiscation is finally being recognized as a tool in EU

policy against organized crime. Although it is not yet selected by EU legislation as a model for

harmonization, the new proposal on recognition would at least guarantee over-the-border

execution of Italian preventive confiscation decrees. Yet, Italian stakeholders are divided on

whether these developments are positive or not. Judges have argued that recognition abroad is

vital and that bringing the instrument to the European arena may provide an excellent opportunity

for improving some of its weaknesses (such as management of confiscated assets)36

. Other

stakeholders, like lawyers and academics, have pointed out that Italian legislation has put too much

emphasis on effectively fighting mafia-type organizations at the detriment of fundamental rights;

exporting the instrument should therefore be used as an opportunity to make it more compatible

33

Committee on Civil Liberties, Justice and Home Affairs, Draft Report on the proposal for a directive of the European

Parliament and of the Council on the freezing and confiscation of proceeds of crime in the European Union

(COM(2012)0085 – C7-0075/2012 – 2012/0036(COD)), 2012/0036(COD), 28 August 2012; Anna Maria Maugeri,

L’actio in rem assurge a modello di “confisca europea” nel rispetto delle garanzie Cedu?, in Diritto Penale

Contemporaneo, 3/2013, pp. 180 ss.; F. Mazzacuva, La posizione della Commissione LIBE del Parlamento europeo

alla proposta di direttiva relativa al congelamento e alla confisca dei proventi di reato, in Diritto Penale

Contemporaneo,16 July 2013. 34

European Commission, Proposal for a regulation on the mutual recognition of freezing and confiscation orders, 21

December 2016. 35

A.M. Maugeri, Prime osservazioni sulla nuova "Proposta di Regolamento del Parlamento Europeo e del Consiglio

relativo al riconoscimento reciproco dei provvedimenti di congelamento e di confisca", in Diritto Penale

Contemporaneo, 21 February 2017. 36

A. Balsamo, Il “codice antimafia” e la proposta di Direttiva europea sulla confisca: quali prospettive per le misure

patrimoniali nel contesto europeo, in Diritto Penale Contemporaneo, 20 July 2012.



13

with such rights37

. This seems also to be the view of the European Criminal Barr Association38

.

4. PECUNIARY MEASURES IN THE MULTILEVEL SYSTEM OF HUMAN RIGHTS PROTECTION.

Confiscation orders, as they essentially consist in a deprivation of property, have a strong

impact on the economic freedom of individuals subject to them, and thus are in potential conflict

with human rights.

In the multilevel system composed by the European Convention of Human Rights (ECHR),

the Charter of Fundamental Rights of European Union and the national Constitutions (to be

considered as a whole), the issue has been mainly analysed by the European Court of Human Rights

(ECtHR), and then internalised by national Constitutional Courts39

. Even if EU is not part of the

ECHR yet, analogous principles are contained in the European Charter of Fundamental Rights (the

Charter), and when the same matters will be examined by the European Court of Justice under EU

law (ECJ)40

, ECtHR jurisprudence will necessarily be taken into consideration, in accordance with

the dialogue that has always characterised the relations between the two Courts41

.

The jurisprudence of the ECtHR about confiscation orders is complex and multifaceted,

because of the multiplicity of national models (even at the EU level, due to the insufficient degree

of harmonisation), and needs to be analysed.

37

D. Piva, La proteiforme natura della confisca antimafia dalla dimensione interna a quella sovranazionale, in Diritto

Penale Contemporaneo, 1/2013, pp. 215 ss.; V. Maiello, Confisca, CEDU e Diritto dell’Unione tra questioni risolte ed

altre ancora aperte, in Diritto Penale Contemporaneo, 3-4/2012, pp. 43 ss. 38

ECBA Statement on the Proposal for a directive of the European Parliament and the Council on freezing and

confiscation of proceeds in crime in the European Union, available at www.ebac.org . 39

Not without some difficulties, that will be mentioned after in this study. 40

About the application of the European Charter of Fundamental Rights and, in general, about the role of human rights

in the EU, it is important to recall the jurisprudence of the ECJ that seemed to pose a boundary consisting in the

principle of EU law primacy. The question, posed by the Spanish judge, was if this principle could possibly enter in the

balance of values (and if it could be sacrificed to protect human rights) or not. In the Melloni case, (ECJ, Grand

Chamber, judgment of 26 February 2013, Melloni v. Ministerio Fiscal, Case C-399/11, par. 57 ss.), the ECJ affirmed its

absolute nature, thus limiting the protection of the right of defense, destined to cede in the impossibility of a balance.

See also the Åkerberg Fransson case (ECJ, Grand Chamber, judgment of 26 February 2013, Åklagaren v. Åkerberg

Fransson, Case C‑617/10), according to which European Union law precludes a judicial practice which makes the

obligation for a national court to disapply any provision contrary to a fundamental right guaranteed by the Charter of

Fundamental Rights of the European Union conditional upon that infringement being clear from the text of the Charter

or the case-law relating to it, since it withholds from the national court the power to assess fully, with, as the case may

be, the cooperation of the ECJ, whether that provision is compatible with the Charter. 41

See the EU Parliament study “Main trends in the recent case law of the EU Court of Justice and the European Court

of Human Rights in the field of fundamental rights”, PE462.446, p. 97 ss., that shows the increase of cross-references

over time. About the permanence of some resistances, see A. Ruggeri, Maggiore o minor tutela nel prossimo futuro per

I diritti fondamentali?, Consulta online n. 1/2015, esp. p. 62.

http://www.ebac.org/



14

4.1. Compatibility of non-conviction based confiscation with the criminal principles of the

Convention.

The problem that arises about non-conviction based confiscations is that they are

administrative measures according to domestic law, but they could be placed under the

criminal law regime of the Convention by the ECtHR. Criminal qualification implicates the

application of all the criminal principles of the Convention, and especially the presumption of

innocence (art. 6 par. 2 of the Convention, and art. 48 of the Charter) and the legality and

irretroactivity principle (art. 7 of the Convention, and art. 49 of the Charter), under which several

national measures have been considered inconsistent with the Convention. It is thus very important

to set a distinction.

National classifications are of little value, because the ECtHR applies its own conception of

criminal sanction. This concept is based on the Engel Criteria42

: firstly, it is necessary to look at the

domestic classification, which only has an approximate value; secondly, at the nature of the

measure in its objective consideration, which prevails on the domestic formal classification; thirdly,

to the severity of any possible penalty. Confiscation has been analysed by the ECtHR according to

those criteria, leading to a broad range of solutions.

About conviction based confiscations, in some cases the ECtHR concluded for their criminal

nature, considering them punitive measures43

, while in other cases excluded it, stating that the

confiscation procedure was only aimed at the assessment of the amount at which the confiscation

order should properly be fixed. Thus, the order was not a “new charge”, and the presumption of

innocence principle of art. 6.2 did not apply44

.

Criminal nature was recognised by the ECtHR also in the case of Italian urban

confiscation45

, a non-conviction based order issued at the end of a criminal proceeding for unlawful

property subdivision, independently of whether the final decision is a condemnation or an

acquittal46

. The ECtHR attributed a punitive nature to this instrument, and stated that the national

authority in charge to adopt the order must verify the existence of a moral and intellectual link

between the fact and the agent, to be consistent with art. 7 of the Convention47

.

42

Engel and others v. The Netherlands, Ap. 5100/71; 5101/71; 5102/71; 5354/72; 5370/72. 43

In Welch v. UK, Ap. 1770/90, the ECtHR argued that the domestic law fixed the amount of the order in relation to the

degree of culpability, and provided imprisonment in case of non-compliance. 44

See Phillips v. UK, Ap. 41087/98. 45

D.P.R. n. 328/2001, art. 44. 46

Among others, see Court of Cassation, Sect. III, n. 16803 of 8 April 2015. 47

Sud Fondi S.r.l. and others v. Italy, Ap. 75909/01, Varvara v. Italy, Ap. 17475/09. This type of confiscation belongs

to the non-conviction based ones. In the Varvara case, however, the ECtHR expressed the necessity of a condemnation.



15

On the contrary, the ECtHR excluded the criminal nature of non-conviction based

confiscations in all those cases in which the preventive purpose of the measures was clear, so

that the sacrifice for individual rights was justified by the prevailing general interest of

fighting crime48

. The preventive nature of the order was exactly the argument that the ECtHR used

to assess the compatibility of the Italian preventive confiscation with the Convention, excluding

the application ratione materiae of art. 7 and of art. 6 co. 249

.

4.2. Compatibility with procedural guarantees recognised by art. 6.1 of the Convention.

If the principle of innocence only applies to criminal matters, the Convention provides a

minimum set of procedural guarantees for both criminal and for civil proceedings; these are

included in the fair trial principle and laid down in art. 6 of the Convention and 47 of the Charter50

.

Compatibility with these principles has been assessed by the ECtHR considering that art. 6.1 was

respected if general safeguards were recognised, such as the judicial nature of the deciding authority

and of the procedure, the publicity of the hearing, the opportunity for the applicant to adduce

evidence and, in case of presumptions foreseen in the national legislation, the opportunity for the

applicant to rebut them51

.

With regard to the feature of publicity of the hearing, the ECtHR made clear that this

principle protects people against a secret justice and arbitrary action52

. In civil matters, the ECtHR

considers that there is no obstacle to a national law that provides the secret character of the hearing,

if it is made necessary by exceptional circumstances related to the subject treated53

, such as its

technical nature. However, in case of restrictive measures - such as confiscations -, the person

subject to them must have the opportunity to demand a public hearing. Otherwise, the ECtHR stated

This evolution led to some problems of transposition that will be analysed after. 48

See Butler v. UK, Ap. 41661/98. It was the case of a law enabling the customs office to confiscate any amount of

money entering or leaving the country if he has reasonable grounds of believing that the money came from drug

trafficking. 49

See Capitani and Capanella v. Italy, 24920/07, par. 35 ss. See also Arcuri v. Italy, Ap. 52024/99 and Raimondo v.

Italy, Ap. 12954/87. 50

Moreover, Directive 2014/42/EU on the freezing and confiscation of instrumentalities and proceeds of crime in the

European Union introduced in its Article 8 procedural safeguards in line with the fundamental rights enshrined in the

Charter. 51

In the aforementioned Phillips v. UK case, as all these features were respected, the ECtHR stated that “the system was

not without safeguards” (Phillips v. UK, Ap. 41087/98). In the aforementioned Arcuri v. Italy case, the ECtHR found

that the proceedings were conducted in the presence of both parties and with respect for the rights of defence before

three successive courts; those courts gave full reasons on all the points at issue, thus avoiding any risk of arbitrariness,

Arcuri v. Italy, Ap. 52024/99. 52

See Riepan v. Austria, Ap. 35115/97, par. 27. 53

See Goç v. Turkey, Ap. 36590/97, par. 47.



16

the inconsistency of the measure with art. 6.154

.

This was the case about Italian Law on preventive measures procedure55

, which

restricted character was binding56

. The ECtHR addressed the issue recognising the technicality of

the subject, and thus considering legitimate the provision of a restricted procedure, but at the

same time imposed that the person subject to the measure must have the opportunity to

demand a public hearing57

. Italian Constitutional Court accepted these indications58

, declaring the

need of a full range of guarantees in the proceedings aimed at the adoption of such restrictive orders

as preventive measures, both personal and economic, can be.

4.3. Compatibility of confiscation and property right set by Protocol 1, art. 1, of the

convention.

Even if preventive confiscation has been classified as a non-criminal measure, because of its

non-punitive nature, it deprives people of their belongings, and thus its compatibility with art. 1 of

Protocol 1 of the Convention, property right59

, must be assessed.

Art. 1 of Protocol 1 sets three rules: the general right to have the possession of one’s own

properties respected; the possibility of a deprivation, limitation or compression of the right, under

certain conditions; the power of States to use private goods to pursue general interests (similar

limitations are set by art. 17 of the Charter)60

. The confiscation procedures are mainly challenged

under this third rule61

. Limitations of private property are legitimate only if based on a legal basis62

,

pursuing a general interest63

and if they are proportionate64

. It entails the need of a balance between

54

See Martine v. France, Ap. 58675/00. 55

Which application, since Law 27 December 1423, no. 1956, is referred to the criminal judge. 56

The domestic constitutional jurisprudence has gradually corrected a lot of the procedural lacks contrasting with

constitutional principles: Constitutional Court, judgment no. 53 of 29 May 1968, and no. 76 of 25 May 1970, relating to

defence rights in front of preventive personal measures; no. 69 of 23 March 1975, on the application of the principle of

contradictory also in the preventive proceedings. 57

See Bocellari and Rizza v. Italy, Ap. 399/02. 58

With Decision n. 93 of 12 March 2010. 59

Property right concept, according to the Convention and the ECtHR, is autonomous from domestic classifications (see

Brosset-Tiboulet and others v. France, Ap. 34078/02) and entails both negative and positive action from States. The

negative action is the most traditional feature, and requires that States abstain from restricting private property; the

positive action consists in making possible compensation for losses suffered as a consequence of illegitimate

confiscations (see Klaus and Iouri Kiladze v. Georgia, Ap. 7975/06). Property right is also considered by art. 17 of the

Nice Charter. 60

Among others, see Dangeville v. France, Ap. 36677/97. 61

Anyway, all three prescriptions are, of course, related to each other, obliging the ECtHR to a graduated assessment. 62

That is, a basis made of accessible and clear rules, see, among others, Lelas v. Croazia, Ap. 55555/08; Belvedere

Alberghiera v. Italy, Ap. 31524/96; Beyeler v. Italy, Ap. 33202/96. 63

D. Harris-M. O’Boyle-C. Warbrick, Law of the European Convention on Human rights, Oxford, 2014, p. 876. 64

See P. Van Dijk-F. Van Hoof-A. Van Rijn-L. Zwaak, Theory and Practice of the European Convention on Human



17

the private interest sacrificed and the general interest deemed prevailing, to assess the

proportionality of the measure65

.

Italian preventive confiscation has always been considered legitimate according to the

principles of Protocol 1, art. 1, because it is aimed at fighting mafia-type crime and organised

crime, a general interest that is strong enough to justify limitations of property right, as the

ECtHR recognised66

. The ECtHR stated that confiscation orders, in such cases, are crime

prevention policy tools, in which the ECtHR accords States a wide margin of appreciation67

.

4.4. Jurisprudential oscillations, Conventional and Constitutional legality.

The case-based approach of the ECtHR, along with the huge variety of measures existing in

the different domestic systems and with the normal evolution of legislation, involves possible

oscillations of ECtHR’s jurisprudence that may have consequences in transposition.

In Italy, the problem came to light in relation to the urban confiscation, that passed through

an important jurisprudential development. As it has been said, it is a measure considered criminal

by the ECtHR. In the Sud Fondi case of 2009, the ECtHR expressed the need of a previous liability

assessment (nulla poena sine culpa), while in the Varvara case of 2013 the ECtHR also expressed

the need of a condemnation (nulla poena sine iudicio).

Italian Constitutional Court conformed its interpretation to the Sud Fondi jurisprudence68

,

but did not agreed with the Varvara. The need of a formal condemnation would have implied the

transformation of the measure, from a non-conviction based one (that is, non-criminal under

domestic law)69

to a conviction based one (that is, criminal also under domestic law), and would

have entailed a contrast with the constitutional subsidiarity principle, according to which the

criminal sanction is extrema ratio in the Italian system70

. To avoid these consequences, Italian

Rights, Oxford, 2006, pp. 879 ss. 65

See the aforementioned cases Butler v. UK, Ap. 41661/98, and Phillips v. UK, Ap. 41087/98. This is how

proportionality is measured in criminal matters, while in civil matters the ECtHR mainly looks at the adequacy of the

economic compensation granted to the expropriated (among others, see Lithgow and others v. UK, Ap. 9006/80,

9262/81, 9263/81, 9265/81, 9266/81, 9313/81, 9405/81) and, more recently, Scordino v. Italy, Ap. 36813/97). 66

See the aforementioned cases Raimondo v. Italy, Ap. 12954/87; Arcuri v. Italy, Ap. 52024/99; Bongiorno and others

v. Italy, Ap. 4514/07; Capitani and Capanella v. Italy, 24920/07. 67

See again Arcuri v. Italy, Ap. 52024/99. 68

With judgment no. 239 of 24 July 2009. 69

The urban confiscation still was a non-conviction based measure, because the order could be issued also with an

acquaintance, if the liability assessment was made, as happens if the crime becomes statute-barred. 70

For the hierarchy between the Charts, the Constitutional Court is obliged to give a constitution-orientated

interpretation of the Convention, and not the contrary.



18

Constitutional Court71

gave its own interpretation of the Varvara jurisprudence, concluding that

European Court did not request a formal condemnation, but only the ascertaining content of it72

, and

justified this decision stating that only consolidated jurisprudence of ECtHR is binding for national

courts73

.

This example shows how problematic can be the confrontation between the flexibility of

ECtHR case-based approach and the structural character of implementation of its decisions in

national legal systems, that has permanent effects74

.

The same problem could arise also in the case of Italian preventive confiscation. As it has

been seen, recent reforms to the anti-mafia code enlarged the application of preventive

confiscation75

. Italian jurisprudence has confirmed the preventive nature of this confiscation76

, but

the persisting consistency with the Convention could be more problematic. If the proportionality

test had positive result in respect of mafia-type crime, it is not sure that the same conclusion would

be retained for common criminality. The ECtHR has not been invested yet with the new Italian

framework, but it has examined similar cases, with oscillating solutions77

.

Before the Grande Chambre expresses itself on the new legal framework, proportionality to

the public interest must be considered by the interpreter the only useful criterion: the higher is the

general interest pursued, the more extended can limitations of rights be. This does not mean

that preventive confiscations are not legitimate instruments to fight common crime. It just means

that, in this case, the ECtHR is likely to be more careful to the respect of procedural

guarantees, a feature that also enters in the proportionality assessment. This is what the ECtHR

71

With judgment no. 49 of 26 March 2015. 72

The distinction between a formal condemnation and an assessment of responsibility is not considerate valuable by the

ECtHR, see Paraponiaris c. Greece, Ap. 42132/06. 73

About the exegetic solutions that Italian Constitutional Court applies to “resist” the pressure coming from ECtHR

jurisprudence, see A. Ruggeri, Maggiore o minor tutela nel prossimo futuro per I diritti fondamentali?, aforementioned,

p. 47 ss. And Id., “Dialogo” tra Corti europee e giudici nazionali, alla ricerca della tutela più intensa dei diritti

fondamentali (con specifico riguardo alla materia penale e processuale), www.dirittifondamentali.it, p. 13 ss. 74

National Constitutional Courts, in fact, are obliged to declare the unconstitutionality of the measures considered

inconsistent with the Convention. 75

See part. 2 of this study about the modifications introduced by Law 24 July 2008, no. 125, and law 15 July 2009, no.

94. 76

See the aforementioned decision of the Court of Cassation, Joined Sections, judgment no. 4880 of 26 June 2014,

Spinelli. 77

In one case, the ECtHR still concluded for the preventive nature (in the Gogitidze case, the confiscation was applied

before the judgment and extended to the family, see Gogitidze and others v. Georgia, Ap. 36862/05); in another case

the ECtHR concluded for the criminal nature and declared the incompatibility with art. 6, without even considering

Protocol 1, art. 1, because it considered again the confiscation as criminal measure, and as a consequence declared that

it was illegitimate to apply it before a condemnation beyond any reasonable doubt (see Geerings v. The Neterlands, Ap.

30810/03); in another case, the ECtHR considered non-criminal a preventive confiscation, but declared it inconsistent

with Prot. 1 art. 1 because it was based on the assumption of illegality of not justified incomes (see Dimitrovi c.

Bulgaria, Ap. 56753/00).

http://www.dirittifondamentali.it/



19

stated about third parties confiscations, that are deemed legitimate if the person is enabled to

challenge the decision before a court78

, or about presumptions on the criminal origin of

disproportionate patrimonies, that are not illegal per se, if they go along with adequate procedural

guarantees79

.

Leaving apart the problem that further jurisprudential developments could entail, and their

possible solutions, according to the ECtHR’s jurisprudence so far80

Italian preventive

confiscation is consistent with the Convention with respect to procedural guarantees, so that

we can rely on the resistance of this instrument under a ECHR compatibility point of view. This is

another confirmation of the fact that the Italian model is a valid example for further European

harmonization.

5. CONCLUSIONS.

Italy is still plagued by organized-crime. Infiltration of mafia-type organizations in the licit

economy is increasing, not only in those regions that are considered to be the cradle of such

organizations, but also in the North of Italy81

. To face this challenge, Italy has developed a number

of very effective tools. In the first chapter of the paper we have presented preventive confiscation of

assets, showing the recent legislative developments in our Country and how these have been

interpreted by Italian judges.

However, preventive confiscation would not be enough if the effectiveness of the tool is

limited within our national borders. Mafia-type organizations, of course, are not bound by such

limitations, and keep moving their assets across Europe. Researchers are mapping these investments

and have found, for example, that Sicilian organizations were purchasing oil-producing companies

in Spain, but also hotels in Romania and casinos in France82

. To stop criminal organizations from

taking advantage of the European space of freedom, EU is seeking to harmonize Member States’

legislative frameworks and to ensure mutual recognition of decisions. So far, EU instruments have

given little role to preventive confiscation, due to the objection of some Member States and doubts

78

In the aforementioned Arcuri v.Italy case, the ECtHR considered that the applicant’s right to peaceful enjoyment of

their possession had not been infringed as the Italian courts had provided them with a reasonable opportunity of putting

their case to the responsible authorities (Arcuri v. Italy, Ap. 52024/99, see also Silickiene v. Lithuania, Ap. 20496/02). 79

Bongiorno and others v. Italy, Ap. 4514/07, that recalls Salabiaku v. France, Ap. 10519/83. 80

After the aforementioned Bocellari and Rizza case on the publicity of the hearing. 81

United Nations Interregional Crime and Justice Research Institute (UNICRI), Organized Crime and the Legal

Economy. The Italian Case, Turin, 2016. 82

Progetto Pon Sicurezza 2007-2013. Gli investimenti delle mafie, developed by Università Cattolica for Ministero

dell’Interno; see also the web-site www.ocportfolio.eu

http://www.ocportfolio.eu/



20

about its compatibility with protection of fundamental rights. We have therefore attempted to

illustrate how preventive confiscation has been found compatible with the ECHR, which enshrines,

essentially, also its compatibility with the Charter of Fundamental Rights of European Union83

.

NCBC can be perceived by some as a harsh tool, but it does not violate fundamental rights and it is

an acceptable compromise between individual freedom and protection of society from criminal

organizations. Needless to say, the activities of these organizations do violate fundamental rights on

a large scale, so that are considered a real threat to our democracies84

.

It is therefore a very positive development that the 2016 Proposal of Regulation would allow

mutual recognition of preventive confiscation decisions in all Member States. This would enable

Italian judges and prosecutors to fight organized crime with increased effectiveness. We also

believe that preventive confiscation should be introduced as a harmonized instrument, as it was

advocated by the LIBE Committee in 201285

. We are persuaded that giving a European role to the

instrument would provide Member States with a well-tested tool. A similar tool could also be very

useful for the European Public Prosecutor Office, when the office will be established (at least for

some Countries, as recent developments seem to suggest) and whether it will be enabled to

prosecute not only financial crimes against EU but also organized-crime and terrorism (as a few

Member States advocate). A European role for preventive confiscation would also be advantageous

for Italy, as our country would certainly benefit from other countries’ and EU’s inputs in improving

those facets of the tool that appear to need some rethinking (such as the management of confiscated

assets)86

.

83

Because the set of rights established by the Charter of Fundamental Rights of the EU substantially coincides with

those set out by the ECHR, recalled in the Preambule of the EU Charter, also as part of the constitutional traditions and

international obligations common to the MS. Moreover, leaving apart the aforementioned problems of coordination

with the EU law primacy principle, as it has yet been noticed, the multilevel system of protection composed by the

European Convention of Human Rights, the Charter of Fundamental Rights of European Union and national

Constitutions must be considered as a whole, thanks to the horizontal dialogue between Courts, that ensures the

relevance of ECtHR jurisprudence also in the EU and national systems. 84

Tampere European Council of 15 and 16 October 1999. 85

Committee on Civil Liberties, Justice and Home Affairs, Draft Report on the proposal for a directive of the European

Parliament and of the Council on the freezing and confiscation of proceeds of crime in the European Union, COM

(2012) 0085 – C7-0075/2012 – 2012/0036 (COD), 2012/0036(COD), 28 August 2012. 86

A. Balsamo, Il “codice antimafia” e la proposta di Direttiva europea sulla confisca: quali prospettive per le misure

patrimoniali nel contesto europeo, in Diritto Penale Contemporaneo, 20 July 2012.

Documents

FROM THE ITALIAN EXPERIENCE AGAINST ORGANIZED CRIME …