Confiscation on the firm's account only if there is a connection to the crime

The seizure of the sum of money identified on the current account in the name of the professional firm must be annulled if the close connection with the crime is not justified. The consequences of the very recent pronouncement of the United Sections of the Court of Cassation, 13783 of 8 April, which significantly redefined the nature of the confiscation and of the seizure, the chronological antecedent of the former, of the profit of the crime, are reinforced.

The Court, Fifth Criminal Section judgement number 17718, recalls that, in the light of the precedent of a few weeks ago, the notion of profit of the crime must be reviewed: in fact, the derivation of the asset from the offence is a necessary requirement, i.e. the connection of the profit to the offence to which the confiscation refers. A derivation that the Court of Cassation admits may also be indirect, in the sense that profit from the offence may also be referred to when it is specifically demonstrated that an asset constitutes the fruit of the immediate reutilisation of a sum of money from the offence. Another requirement for confiscation is then that it has actually entered the asset of the addressee of the measure.

Turning then to the application of confiscation to sums of money, the Supreme Court highlights all the criticisms addressed by the United Sections: from the configurability of the preventive-confiscation for the direct confiscation of sums absent in the suspect's assets but subsequently arriving, to the confiscation of money of legitimate origin, to cases of money deposited in a joint account with persons other than the offender who can prove the lawful provenance of the asset, to cases where the money is already in the offender's possession before the offence is committed.

The orientation that is now taking shape moves away from the previous one that valued the fungible nature of money and the confusion it produces with other monetary assets, thus blurring the requirement of pertinentiality. Instead, direct confiscation must now have as its object either the sum derived from the crime or the economic utility acquired subsequent to the crime but causally connected to it.

In the case that reached the Court of Cassation, the annulment (with reference) of the seizure aims to make the court clarify whether the sum involved in the measure on the account of the professional studio derives from the crime of bankruptcy object of the proceedings, "a link nowadays claimed by the jurisprudence of this Court in its most authoritative composition". If this were not the case, the seizure could only be considered to be for equivalent, "which would make it necessary to take note that there is no legal basis for value confiscation with respect to the crime of fraudulent bankruptcy".