Revision allowed for confiscations contrary to European judgments
Judges must avoid using expressions contrary to the presumption of innocence. However, an attribution of responsibility remains sufficient
Key points
It extends the remedy, introduced by the Cartabia reform of the criminal trial, of the request for the elimination of the prejudicial effects of decisions adopted in violation of the Convention for the Protection of Human Rights. The measure, the Court of Cassation now affirms, with sentence No. 469 of the Fourth Criminal Section, is also extended to the case in which the appeal sentence censured by the European Court of Human Rights has applied, after a pronouncement of extinction of the crime due to prescription, the security measure of confiscation: the broad formula used in fact can be referred to the recipient of a real security measure. For the use of the remedy it is only relevant that the jurisdictional measure, regardless of its name, contains a concrete conciliation of liability.
Consequently, confiscation may legitimately be ordered even in the absence of a final conviction, provided that the justification of the measure does not intervene to attribute criminal liability to the person concerned, but merely notes the illicit origin of the assets on the basis of the objective elements acquired.
Maximum attention to language
The Court of Cassation, moreover, states that the judge who, after finding the existence of a cause of extinction of the offence, has sufficient elements to adopt a cancellation measure, is required to confine the reasoning to the latter, calibrating with rigour the expressions used. To be avoided is the use of formulae that, although not necessary for the decision, explicitly attribute criminal liability to a person who cannot be held guilty by reason of the extinguishing cause, because these expressions entail a judgement on criminal liability in conflict with the presumption of innocence and result in discriminatory language against the person.
The judgment recalls that the European Court of Human Rights has emphasised 'that, in cases concerning respect for the presumption of innocence, the language used by the person responsible for the decision is of crucial importance in assessing the compatibility of the decision and its reasoning with Article 6(2) of the Convention'.
Thus, an orientation is consolidating according to which the language used in the decisions of judicial authorities is not mere rhetorical ornament, but the very substance of the judgement, capable of infringing fundamental rights when it turns into the attribution of criminal liability to one who, due to an extinguishing cause, cannot be found guilty.
