European Court of Human Rights

Justice, excessive to combine confiscation and compensation

If the effect is to worsen the patrimonial conditions of convicted persons

by Giovanni Negri

12 February 2026

3' min read

Translated by AI

Versione italiana

Key points

Cases examined
The two sizes
Property law
Missing consideration
Disproportionate amount
Deduction to be applied

3' min read

Translated by AI

Versione italiana

No to the application of the double penalty track for the same facts, if the punitive measures as a whole become too afflictive. This was affirmed by the European Court of Human Rights in a judgment of 5 February on two appeals, dealt with jointly due to the identity of the legal issue, numbers 34324/15 and 65192/16.

The cases examined

The ruling thus intervenes in cases of offences against thepublic administration. In the first one, two convictions were handed down, with confirmation in Cassation, for criminal conspiracy, corruption and fraud: in particular, the prosecution argued, the two sanctioned persons were involved in a scheme concocted by a public prosecutor between 1997 and 2005, through which an accounting group provided unjustified consultancy services to the public prosecutor's office.

In the second, a regional official was convicted, again definitively, of favouring certain companies in the selection process for the assignment of public works in the emergency reconstruction caused by a series of floods.

The two measures

In both cases, the judicial authorities had decided the confiscation of the assets of the convicted persons for an amount equivalent to the proceeds of the contested offences; in both cases, the Court of Auditors also took action by initiating proceedings that ended by establishing a reimbursement from the amount of which, the accounting judges decided, could not be deducted the value of the assets already subject to confiscation. For the accounting judges, in fact, confiscation and reimbursement do not have the same purpose: the former has an essentially punitive nature, while the latter is intended to compensate the State for the damage caused by the crime.

The right of ownership

Now theEuropean Court of Human Rights challenges this conclusion. In the appeals it had been argued, among other things, that there was excessive interference in the right to property, pointing out that the measures applied jointly lead to adisproportionate outcome by worsening the patrimonial condition of the persons concerned compared to the situation before the offences.

The Court notes first of all that the Convention on Human Rights does not absolutely prohibit the combination of arestorative measure and apunitive one. However, in the cases examined, the confiscation had not only fulfilled a punitive function but had also aimed at restoring the financial situation that existed before the crimes.

Missing consideration

The judgment clarifies, however, that 'it does not appear from the file that theconfiscation measures in question were revoked as a result of the judgments of the Court of Auditors or that they were taken into account in any way during the execution of those judgments'.

Disproportionate amount

The consequence is that the effect of the confiscation and compensation measures enabled the State to collect a total amount exceeding the damage suffered by the injured administration: 'in those circumstances, the Court considers that the measures in question clearly exceeded what was necessary to attain the objective pursued by the Court of Auditors, namely the compensation of that damage'.

Deduction to be applied

Having regard also to the compensatory nature of the confiscation ordered in the present case, 'the Court considers that the refusal of the Court of Auditors to deduct the sums confiscated by the criminal courts from the amount of the compensation intended for the public persons harmed by the offences committed by the applicants imposes an excessive burden on those persons'.