On April 8th, the Joint Sections of the Court of Cassation issued Judgment No. 13783 concerning confiscation. One of the most important principles states that, in cases involving multiple participants in a crime, confiscation may be ordered against each individual co-offender only in proportion to the actual benefit personally obtained, excluding any form of joint and several liability.
The judgment departed from the interpretative stance grounded in the joint and several liability of co-perpetrators, affirming instead the significance of the principle of proportionality.
The case
The trial court had issued a plea bargain judgment for the offenses of criminal conspiracy aimed at private-sector corruption and multiple acts of corruption, and ordered the confiscation of sums of money.
With regard to one co-defendant, the confiscation by equivalent was ordered based on the principle of joint and several liability.
The petition filed before the Court of Cassation
The defendants filed an appeal before the Court of Cassation. The Sixth Criminal Division noted a conflict in case law and referred the matter to the Joint Sections.
The issue addressed by the Joint Sections of the Court of Cassation
The Joint Sections of the Court of Cassation were called upon to rule on the following issue:
- whether, in the case of multiple participants in a criminal offense, the confiscation by equivalent of the resulting profit may be imposed in full on each of them, regardless of the amount individually received, or whether such confiscation may only be ordered when it is not possible to determine with certainty the share of the profit obtained by each participant;
- or alternatively, in the latter case, whether the confiscation should nonetheless be apportioned among the co-offenders based on their respective degrees of responsibility, or in equal parts, according to the civil law rules governing joint and several obligations.
The principles established by the Joint Sections of the Court of Cassation
The Joint Sections of the Court of Cassation established the following principles of law:
- the confiscation of sums of money is to be regarded as direct only when there is proof of a causal link between the asset and the offense; such qualification cannot be inferred merely from the nature of the asset. In all cases where the aforementioned causal connection is lacking, the confiscation must instead be considered as by equivalent;
- in cases of joint participation in a criminal offense, with any form of joint and several liability excluded, confiscation shall be ordered against each individual participant solely in relation to the actual benefit personally obtained. This determination must be established through evidentiary proceedings in an adversarial context between the parties. Only when it is not possible to ascertain the individual share of illicit gain does the criterion of equal apportionment apply;
- the same principles apply in the case of seizure aimed at confiscation, for which the judge’s duty to provide reasoning must be tailored to the stage of the proceedings and the evidence gathered.
The distinction between confiscation of the proceeds of the offense and confiscation of the price of the offense in corruption cases
The Joint Sections of the Court of Cassation also clarified that, in the case under examination, the trial court had erroneously classified the confiscation as relating to the proceeds of the offense, whereas it was, in fact, a confiscation of the price of the offense.
Indeed, in this case, the sums of money transferred by the defendants represented the price paid by the bribe-givers to the bribe-takers — the price of corruption.
Specifically, the price of the offense refers to the payment given or promised to a person as consideration for carrying out the unlawful act.
By contrast, the proceeds of the offense are the revenues derived from the commission of the crime — that is, money or economic benefits obtained from the transformation or use of the illicit funds.
The difference between direct confiscation and confiscation by equivalent
The Joint Sections of the Court of Cassation clarified that direct confiscation constitutes a security measure: it is not punitive in nature and serves to prevent the future commission of crimes, as the asset derived from the offense is considered dangerous.
Both the price and the proceeds of the offense may be subject to confiscation, but there must be evidence that the asset to be confiscated derives from the unlawful conduct. This requirement also applies in cases where the confiscated asset is not directly derived from the offense, but rather obtained through the use of the price or proceeds of the crime.
Confiscation by equivalent, also known as value-based confiscation, serves both restorative and punitive functions and is subject to the guarantees of the principle of legality in criminal punishment.
It is a substitute for direct confiscation: a confiscation is carried out on an asset of equivalent value to that representing the proceeds or the price of the offense, which would have been confiscated if it had been found.
Its legal basis is found in individual provisions relating to specific offenses; there is no comprehensive or unified regulation.
A causal link between the offense and the asset is not required for this type of confiscation: it may apply to assets unrelated to the crime or to sums of money that arose either before or after the commission of the offense.
The determination, on a case-by-case basis, of the type of enrichment and the shares obtained by each co-offender is a matter to be proven in the course of the proceedings.
The outcome of the case
The Joint Sections of the Court of Cassation quashed the appealed judgment and instructed the trial court to apply the principles established and to verify the following:
- whether, and to what extent, the confiscation of the price of the offense, consisting of money, should be classified in the present case, with regard to each individual co-offender, as direct confiscation or confiscation by equivalent;
- whether, and to what extent, each co-offender actually obtained the price of each offense being prosecuted.
The Supreme Court further stated that, in the absence of a determination of the individual shares of enrichment, the price paid for each offense shall be apportioned equally among the co-offenders.
The Dal Pozzo Law Firm provides expert legal counsel in matters relating to economic and property-related crimes.
