The recent decision by the Italian Supreme Court's United Sections has brought significant clarity to the criteria for confiscation in cases involving multiple offenders. This ruling, currently available only in provisional form, establishes that the direct confiscation of money is applicable solely when there is evidence of a causal link between the asset and the crime. The nature of the asset alone does not suffice to establish this qualification. In the absence of a causal connection, confiscation is deemed equivalent. In cases of joint participation in a crime, the United Sections emphasize the exclusion of any form of joint liability. Confiscation is imposed on the individual offender, limited to the amount they have concretely gained. This determination is subject to proof in adversarial proceedings. Only when the individual share of enrichment cannot be identified does the principle of equal distribution apply. These principles also extend to seizures aimed at confiscation, where the judge's obligation to provide reasoning must be adjusted according to the procedural stage and the evidence gathered up to that point. This decision represents a departure from the United Sections' own stance in 2008, which was subsequently adopted by the legitimacy jurisprudence in numerous rulings. The previous approach emphasized the principle of joint liability, allowing for equivalent confiscation, and even seizure aimed at confiscation, to affect each offender for the entire amount of the verified profit, provided the measure was not duplicated and did not exceed the verified amount. The referral order to the United Sections noted that it was irrelevant which portion of the profit was acquired by the individual offender or whether they had actually derived any part of it. The punitive nature of equivalent confiscation, when the profit from the crime is no longer fully or partially recoverable in its original physical form, was a key factor in this interpretative line. However, an opposing view has emerged, which the United Sections have now endorsed with their new intervention, although the detailed motivations will be available in due course. This more cautious approach considers equivalent confiscation of the entire profit from each offender only when the nature of the specific case and the underlying economic relationships do not allow for the identification of the profit share attributable to each offender or its exact quantification. Otherwise, the total amount must be divided among the offenders based on what each has received. The General Prosecutor, in their requisition, requested the United Sections to conclude that when it is not possible to identify and render the profit from the crime in its original identity and consistency, and to avoid nullifying the objective of depriving the defendant or convict of any economic advantage from the illicit activity, even when its traces have been lost, the execution of equivalent confiscation for the entire amount against the individual offender should be deemed legitimate, unless they provide specific contrary evidence that only a portion of the profit originally came into their possession.

Issues

• The challenge of proving the causal link between the asset and the crime for direct confiscation.

• The potential for unequal treatment of offenders if the principle of equal distribution is applied without clear evidence.

• The risk of undermining the punitive nature of confiscation if equivalent confiscation is not applied consistently.

  Legal/Tax/Regulatory Implications

• The decision may lead to a more individualized approach in legal proceedings, affecting how stakeholders prepare their cases.

• It could influence future legislative reforms aimed at clarifying the criteria for confiscation and joint liability.

• The ruling may impact the strategies of prosecutors and defense attorneys in cases involving multiple offenders, as they navigate the new criteria for confiscation.