In corporate crimes, the equivalent confiscation of instrumental goods is illegitimate

The Constitutional Court with ruling n. 7 of 4 February 2025, declared the constitutional illegitimacy of art. 2641, second paragraph, of the Civil Code in the part in which it provides for the mandatory confiscation of a sum of money or goods of equivalent value to those used to commit the crime, and, consequently, of art. 2641, first paragraph, of the Civil Code, limited to the words "and the goods used to commit it".

The ruling in question considered well-founded the objections raised in reference to the principle of proportionality of the penalty referred to in arts. 3, 27, third paragraph, as well as in arts. 11 and 117, first paragraph, of the Constitution, the latter in relation to art. 49, paragraph 3, CFREU, the additional parameters evoked by the judge a quo being absorbed.

In particular, the Judge of the Laws highlighted that the confiscation, direct and equivalent, of the assets used to commit one of the crimes governed by Title XI of Book V of the Civil Code, provided for by art. 2641 of the Civil Code, has the nature of a real patrimonial penalty and that the confiscation of the "assets used to commit the crime" affects "assets not obtained through criminal activity, and which therefore, as a rule, were legitimately owned by the perpetrator of the crime at the time of the act" which results in the ablation of such assets by the criminal judge determining a worsening of his patrimonial situation pre-existing the crime; hence the authentically "punitive" nature of the confiscation provided for by art. 2641, first paragraph, of the Civil Code.

The Court then underlined that respect for the principle of proportion with reference to the confiscation of capital goods is confirmed both in comparative law and in European Union law, in which the provision of confiscation of capital goods is normally subordinated to an assessment of the compatibility of its infliction, in the specific case, with the principle of proportionality, enshrined in art. 49, paragraph 3, CDFEU, which has general and binding scope in the entire scope of implementation of Union law, and as such applies to any form of confiscation regulated by Union instruments

From this it follows that the discipline criticized by the referring judge "is incompatible with all the parameters evoked by the referring judge on which the principle of proportionality of the sentence is based, in its internal and supranational dimension: and therefore with the articles. 3 and 27, third paragraph, of the Constitution, as well as - as regards Union law - with articles. 11 and 117, first paragraph, of the Constitution in relation to the art. 49, paragraph 3, CFRUE”, which allows the remaining complaints to be considered absorbed, concerning the alleged disproportionate compression of the interested party’s right to property determined by the confiscation in question.

The declaration of unconstitutionality was then extended to art. 2641, first paragraph, c.c., limited to the words «and the goods used to commit it», since the vulnerability found affects in the same way, and for the same reasons, the provision of direct confiscation of the goods used to commit the crime.

Finally, the Court highlighted that “the judge’s power, in compliance with the principle of proportionality, to order the direct confiscation of the «things that were used to commit the crime» pursuant to the general provision of art. 240 c.p., referred to in the third paragraph of art. 2641 c.c.: and therefore also of the sums of money used to commit the crime, charged to whoever is found to actually have access to them”