On the borders of criminal law. A tentative assessment of italian “non-conviction based extended confiscation”
| Author | Sofia Milone |
| Published date | 01 June 2017 |
| Date | 01 June 2017 |
| DOI | http://doi.org/10.1177/2032284417711573 |
| Subject Matter | Articles |
Article
On the borders of criminal
law. A tentative assessment
of italian ‘‘non-conviction
based extended confiscation’’
Sofia Milone
Scuola Superiore Sant’Anna, Italy.
Abstract
The article discusses the legitimacy of ‘‘non-conviction based extended confiscation’’and proposes
an assessment of this measure under the principle of proportionality. So far, the analysis has mainly
focused on the qualification of the measure as punitive or preventive, in order to ascertain the
relevance to its assessment of the principles governing criminal sanctions. After showing that
the issue of the nature of this form of confiscation is quite controversial, the paper suggests to use
the principle of proportionality as a benchmark. Indeed, this principle constitutes a minimum
constraint on State measures, regardless of their (non)criminal nature. Although the article focuses
on Italian ‘‘non-conviction based extended confiscation’’, it may have an impact on the debate
concerning similar measures known in other systems, as well as on the adoption of a common
model of non-conviction based confiscation at the EU level.
Keywords
Non-conviction based extended confiscation, preventive nature, proportionality
Introduction
In this paper, I discuss the legitimacy of ‘‘non-conviction based extended confiscation’’ as under-
stood in the Italian system. This is an asset recovery measure that targets the proceeds of crime and
can be applied in the absence of a criminal conviction. For the purpose of the analysis, legitimacy is
regarded as conformity with Italian constitutional principles, as well as the European principles
that are binding on the Italian system according to the Constitution.
1
Corresponding author:
Sofia Milone, PhD Candidate in Criminal Law, Dirpolis Institute, Scuola Superiore Sant’Anna, Pisa, Italy.
E-mail: s.milone@santannapisa.it
1. Article 117 of the Italian Constitution asserts the binding nature of EU law and of international obligations; among the
latter, the European Convention of Human Rights has a peculiar status as it is subject to the interpretation of the
New Journal of European Criminal Law
2017, Vol. 8(2) 150–170
ªThe Author(s) 2017
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DOI: 10.1177/2032284417711573
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Confiscation – as a legal tool that allows the State to acquire the assets that are linked to the
perpetration of a crime (instrumentum, productum and fructum sceleris) – can be considered as a
polymorphous legal concept, depending on its object and function
2
. Among the different types, the
confiscation of the proceeds of crime is considered the most appropriate tool to comply with the
criminal policy imperative, upheld in both national and European debate, that the perpetrator must
not benefit from his crime. It should not surprise us, then, that this form of confiscation, as an
effective reaction to the commission of crimes thanks to its incapacitating and deterring effect, is
being applied with extensive schemes: the nexus between the object of confiscation and the
predicate offence has been watered down as it is not necessary to demonstrate that the property
is the fruit of a specific offence, but it is sufficient to infer from circumstances that the property has
an unlawful origin.
The Italian legislator, driven by the need to fight the crimes of the mafia, adopted a form of
extended confiscation that can apply both within and beyond criminal proceedings.
3
According to
the extended scheme, all belongings that are disproportionate to the incomes of their owner and
whose legal origin is not proven can be confiscated. The measure I refer to as non-conviction based
extended confiscation is an extended confiscation that applies to people suspected of crimes of
mafia membership and other related serious crimes – more recently, to a wider range of illegal
behaviour linked to economic crimes – within a peculiar proceeding (procedimento di preven-
zione) traditionally aimed at the neutralisation of people’s dangerousness.
4
It was first introduced
in 1982 to target the proceeds of the crime of mafia membership; now it is regulated by the so
called Codice Antimafia, enacted in 2011.
5
By targeting the proceeds of unlawful activities, the
measure is supposed to deter the perpetrators from committing crimes and, at the same time, hinder
the circulation of tainted property in the legal economy.
The expansion of this form of asset recovery in the Italian system, together with its possible
long-lasting future even in EU law in light of the recent debate about the adoption of a common
model of non-conviction based confiscation
6
, calls for a deep investigation of the subject. This
seems to me the main challenge: to identify the appropriate set of principles that serves as the
benchmark for the purpose of the evaluation of the measure. Both the Italian legislator and
judiciary, as well as the European Court of Human Rights (ECtHR), regard the nature of the
European Court of Human Rights. (See Italian Constitutional Court, 24 October 2007, no. 348–349. The decisions of the
Constitutional Court can be found on the website www.cortecostituzionale.it, but only in the Italian original text).
2. Emanuele Nicosia, La confisca, le confische: funzioni politico-criminali, natura giuridica e problemi ricostruttivo-
applicativi (Torino: Giappichelli, 2012).
3. The extended confiscation applicable in a criminal proceeding is set forth in Article 12-sexies Decreto legge no. 306/
1992 (a legislative act adopted by the Government that must be ‘‘converted’’ into a statute by the Parliament within 60
days from its entering into force).
4. This proceeding allows for the imposition of both preventive measures restrictive of personal liberty and a preventive
measure restrictive of property rights, that is the examined form of confiscation.
5. Decreto legislativo (a legislative act approved by the Government on mandate of the Parliament) no. 159/2011. In
particular, I consider Articles 1 and 4 concerning the target area of the measure; Article 18, that allows the issue of a
confiscation order irrespective of the persistence of the social dangerousness of the targeted person; and Article 24
concerning the conditions for the application of the measure.
6. See § 22 of the European Parliament Resolution of 11 June 2013 on organised crime, corruption, and money laundering,
P7_TA(2013) 0245, and the Statement by the European Parliament and the Council on an analysis to be carried out by
the Commission, 31 March 2014, 7329/1/14, that calls on the Commission to explore ‘‘the feasibility and possible
benefits of introducing further common rules on the confiscation of property deriving from activities of a criminal
nature, also in the absence of a conviction of a specific person or persons for these activities’’.
Milone 151
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