Court of Cassation – section II pen.- sentence n. 17318 dated 03-27-2024
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1. The question: qualification of the confiscation of the price of the crime
The investigating judge of the Court of Turin only partially accepted a request from the Public Prosecutor for preventive seizure aimed at confiscating the sum of 382,317.58 euros, as profit from the crime, obtained by a person subjected to investigations for the crime envisaged by the articles. 81, 110 and 642, second paragraph, of the penal code.
Having said this, the suspect’s lawyer appealed to the Court of Cassation against this provision, requesting the annulment of the order for violation of the law in relation to the articles. 321, paragraph 2, cod. proc. pen. and 240 cod. pen.. For further information on the provision we recommend: Criminal proceedings and execution after the Cartabia Reform
Criminal proceedings and execution after the Cartabia Reform
Updated to Legislative Decree 10 October 2022, n. 150 (Cartabia Reform) and Law 30 December 2022, n. 199, of conv. with mod. of Legislative Decree 31 October 2022, n. 162 (Nordio Decree), this volume is an operational analysis of the institutions of our criminal sanctioning system, conducted following the process of the different procedural phases. Also through numerous diagrams and tables and timely jurisprudential reviews placed at the end of each chapter, the institutions and the related ways of operating find an organic arrangement in the volume in order to ensure the professional an immediately useful aid for preparing the best possible procedural strategy in the specific case. There have been numerous regulatory interventions in recent years aimed at differentiating prison sentences: the subsequent amendments to the penal code, the code of criminal procedure and the penitentiary system, the decriminalization of some crimes; the introduction of the institution of non-punishment for particular tenuousness of the fact; the provision of suspension of the trial with probation carried out; the stratified changes to the penitentiary system. With attention to novelty, legislation and jurisprudential, and simplicity of exposition, the main topics covered are: prescription; inadmissibility; testing; the suspension of the proceedings due to the special tenuousness of the fact; the extinction of the crime for restorative conduct; plea bargaining and summary judgment; the commensuration of the sentence (discretion, circumstances of the crime, general mitigating circumstances, recidivism, continued crime); short prison sentences (substitute sanctions and double benefits by law); alternative measures, impeding crimes and foreclosures; safety measures and prevention measures. Cristina MarzagalliMagistrate currently serving at the Court of Justice of the European Union as a Seconded National Expert. You have gained specific expertise in the field of criminal law and criminal execution by holding the roles of GIP, trial judge, supervisory magistrate, member of the Court of Assizes and of the Court of Royal Review. She was a trainer at the Higher School of the Magistracy for the district of Milan.
Cristina Marzagalli | Maggioli Editore 2023
2. The solution adopted by the Supreme Court
The Supreme Court found the above appeal well founded.
In particular, the Ermellini reached this conclusion, observing first of all that the crime former art. 642 cod. pen. it is an early crime, which does not require the actual achievement of the expected compensation, since the compensation and the advantage indicated by the law are elements that characterize the subjective element of the case, which requires specific intent.
Having said this, the Court of legitimacy also highlighted that, if it is true that there is no doubt that the profit from the crime, actually achieved in the specific case, includes all the sums obtained as a result of the criminal conduct, paid to the appellant or to others by the insurance, it is equally clear, however, that, in this case, the seizure is aimed at direct confiscation, since it concerns a sum of money, also taking into account the fact that the crime former art. 642 cod. proc. pen. is not included among those for which confiscation by equivalent is permitted.
In fact, the Joint Sections, on the basis of a previous ruling (Section U, n. 31617 of 06/26/2015), have recently reiterated that the confiscation of money constituting the profit or price of the crime, however found in the assets of the author of the conduct and which represents the actual monetary capital increase achieved, must always be qualified as direct, and not by equivalent, in consideration of the fungible nature of the asset, with the consequence that the allegation or proof is not an obstacle to its adoption of the lawful origin of the specific sum of money subject to apprehension (Section U, n. 42415 of 05/27/2021).
Well, in light of this hermeneutic framework, for the judges of Piazza Cavour, the Court had apodictically stated that “the seizure aimed at confiscation can well affect the entire sum charged to the suspect himself” without evaluating the question in law, concerning the possibility of directly confiscating (and therefore ordering the seizure aimed at said confiscation) the entire profit of the crime against an investigated person even when – as happened in the present case – he has only received a part of it.
The Court’s order, therefore, was annulled without postponement, with only the provision of the investigating judge remaining effective, which had limited the object of the preventive seizure to the sum received by the appellant.
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3. Conclusions
The decision in question arouses a certain interest, as it clarifies how the confiscation of the money constituting the profit or price of the crime, however found in the assets of the perpetrator of the conduct and which represents the actual monetary patrimonial increase achieved, should be classified.
In fact, it is stated in this ruling, on the basis of a previous interpretative direction, that this confiscation must be classified as direct confiscation, with the consequence that the allegation or proof of the lawful origin of the specific sum of money in question is not an obstacle to its adoption. of apprehension.
This provision, therefore, must be taken into due consideration in order to verify whether this form of confiscation occurs, i.e. confiscation by equivalent.
In any case, the judgment regarding what is established in this ruling, since it contributes to clarifying this legal issue from a jurisprudential perspective, can only be positive.
