United Sections of the Supreme Court of Cassazione: the preventive seizure of assets aimed at confiscation must contain the concise motivation also of the ‘periculum in mora’

According to the Supreme Court with United Sections, the obligation of the judge to justify the seizure for the purposes of confiscation also in relation to the periculum corresponds to the unavoidable need to respect the criteria of proportionality whose necessary value, with reference precisely to the real precautionary measures, and in consonance with the affirmations of supranational jurisprudence, the Court of Cassation deemed it necessary to point out several times in order to avoid an exasperated compression of the right of property and free private economic initiative, as already stated by the same United Sections in motivation of the evidentiary seizure of the body of crime (Criminal Court, Section Un., 19/04/2018, Botticelli, n. 36072).

In this regard, the Joint Sections confirm the centrality of the principle of proportionality (and residuality) of the (also) real precautionary measures which is constantly recalled by the jurisprudence of the ECtHR in the assessment of interference with respect to the property right protected by art. 1, Prot. 1, ECHR Convention (ECHR, Grand Chamber, 5/1/2000, Beyeler v. Italy; ECHR, Grand Chamber, 16/7/2014, Alisic v. Bosnia and Herzegovina), and constitutes also one of the general principles of Union law (art. 52, § 1, CFDUE; Court of Justice of the European Union of 12/3/2019, C-482/17, according to which the principle of proportionality "requires that instruments established by a provision of EU law are suitable for achieving the legitimate objectives pursued by the legislation in question and do not go beyond what is necessary to achieve them ").

The United Sections affirm that this motivation can only concern the danger of dispersion of the property before the definition of the judgment, given that, otherwise, the confiscation would risk becoming impracticable.

The nature (mandatory or optional) of the confiscation is not relevant, nor the function actually performed by it (security measure, sanction, administrative measure).

The "mandatory" nature of the confiscation does not make the sequestration functional to it "mandatory", because, pursuant to art. 321, paragraph 2, c.p.p., general and all-encompassing rule, the judge "can", and therefore "must not", adopt the precautionary measure.

Therefore affirm that the motivation of the seizure order pursuant to art. 321, paragraph 2, cpp, should always result in acknowledging the confiscation of the thing because already this characteristic would indicate the objective danger of the asset, it means, on the one hand, and in correlation with the "protean" nature of the confiscation, neglecting the diversity substantial of the hypotheses for which the legislator has provided for the confiscation of assets, moreover not always focused on the dangerousness of the asset but rather, in many cases, expressive, simply, of sanctioning intent (as it is, for example, in cases of confiscation " by equivalent "), on the other hand, to arrive at an unacceptable overlapping of the precautionary measure, on the one hand, and of the definitive one, on the other.

The judge, therefore, must always indicate the reasons why the property could, pending judgment, be modified, dispersed, damaged, used or alienated, even in the case of preventive seizure of a thing subject to mandatory confiscation.