Sequestro e confisca di prevenzione nel sistema costituzionale

Preventive Seizure and Confiscation in the Constitutional System The purpose of this research is to analyze preventive seizure and confiscation from a constitutionally oriented perspective. The study begins with their original application to cases of both generic and qualified dangerousness, followed by an examination of the current legislative framework and practical implementation. It then proceeds - also from a de iure condendo perspective - to explore the feasibility of new models of control, more distinctly grounded in proof of the illicit origin or disproportion of assets, while remaining anchored to principles of reasonableness and proportionality, and ultimately aimed at recovery and restoration mechanisms for wealth illicitly accumulated through so-called profit-generating crimes. The current configuration of preventive confiscation, following the progressive detachment from the requirement of the recipient’s present dangerousness, reveals a convergence of distinct functions (restorative, but also punitive and preventive). This evolution has fueled the concerns of much of the legal doctrine, which views this ablative remedy as a ‘punishment based on suspicion’ sanctioning a mere ‘unjustified possession of assets’. In view of the asserted indispensability of this instrument, it becomes necessary to develop proposals for a guarantee-based redefinition of the measure - one more consistent with the proper function of preventive confiscation, and capable of balancing efficiency requirements with the protection of individual rights. The methodological approach, necessarily informed by an examination of modern asset-investigation techniques, seeks to verify the effectiveness of such instruments, while ensuring full respect for the fundamental rights of all parties involved (including third parties) and acknowledging the inadequacy of civil standards of proof, since the illicit origin of the assets must still be demonstrated. In particular, starting from the current terms of debate, preventive seizure and confiscation measures require a historical and critical analysis of their evolution and of the unresolved issues left by recent reforms, in search of sustainable solutions in terms of both legitimacy and effectiveness. It cannot be overlooked that the fragile equilibrium of legitimacy - at the constitutional and supranational levels, as evidenced by numerous pending cases before the European Court of Human Rights - derives from the inevitable framing of these measures within an ante delictum perspective, which raises serious doubts about the limits of the guarantees inherent in the criminal law of the fact. The structural and functional developments of preventive asset measures - which range from preventive to punitive, restorative, or reparative models - highlight the protean nature of preventive seizure and confiscation. Their compatibility with constitutional principles and international treaties safeguarding fundamental rights can be effectively argued only outside the matière pénale, with the inevitable aporias already effectively highlighted by the most attentive doctrine. The ‘ontological’ incompatibility of preventive asset measures with the system of guarantees appears to be mitigated, if not overcome, through a regulation of their ‘forced coexistence’ within institutional frameworks. However, this coexistence does not safeguard the system from the risk of sacrificing coherence in the name of a generalized need for efficiency and protection, nor from a true methodological inversion between general principles and political-criminal objectives. Indeed, by a kind of ὕστερον πρότερον that places the aim of protection before the general principles, contemporary criminal law increasingly tends to expand, encompassing a vast range of social relations in the name of efficiency and rejecting the limiting canon of extrema ratio. A first deviation from this trend can be found in the position of distinguished doctrine who have identified in the Constitution not merely a limit, but a foundation for the legislature’s criminal policy choices. The selection and delineation of the area of criminal relevance have become increasingly flexible and dynamic - ostensibly for procedural simplification - but also more vague and indeterminate, as shown by the growing consolidation of the “criminal law of risk” and the so-called “wild bunch” of the punitive society. This latter trend is characterized by interventions in fields such as environmental and economic regulation, and in the suppression of organized crime and international terrorism, to safeguard the proper functioning of public administration and the morality of politics. As a result, principles such as proportionality and the social reintegration of offenders are gradually giving way to a more forceful intervention by criminal law, with harsher sanctions even at stages preceding any concrete endangerment of the legally protected interest specifically determined by law. Criminal policy choices, increasingly detached from the guarantees that legal dogmatics must necessarily embody, are progressively oriented toward distinctly preventive functions in the fight against organized crime. This has led, among other effects, to the expansion of praeter delictum measures and, more broadly, of the tools available to the judiciary, which has become the legislature’s primary - and sometimes sole - interlocutor. An illustrative example is anti-terrorism legislation, conceived as an additional weapon to eliminate the ‘enemy’, even by means entirely outside the guarantees and limits imposed by the subjection of political power to the law. Other signs of this process - which marks the rise of national and supranational legislation increasingly detached from dogmatic foundations - include the growing recourse to emergency legislation, intensified in the first two decades of the 21st century, and the hypertrophy of special legislation. Security, elevated to a function of criminal law, has led increasingly - through anticipatory protection and recourse to praeter delictum measures - to situations that conflict with the cornerstones of liberal criminal law, which should instead be guided by the principles of legality, the rule of law, harmfulness, definiteness and specificity, proportionality, respect for human dignity, and the rehabilitative purpose of punishment. Among the guiding principles, the legally protected interest is undergoing a process of both erosion and expansion of what is deemed criminally relevant, favoring the criminalization of conduct that poses a threat to collective security. The preventive paradigm thus situates criminal law within a system devoted to the production and preservation of security, transforming it into a tool for managing risks and addressing social problems. This functionalization blurs the boundaries and erases the distinctions between guilt and dangerousness, between substantive and procedural law, and, with regard to preventive asset measures, between criminal law, civil law, and administrative sanctioning law. The progressive convergence of criminal law toward administrative law is evident in the fact that the former - once a reactive instrument addressing specific individual harm - has evolved into a form of (punitive) risk management law, resembling the latter in its teleological profile. As a result, criminal provisions no longer necessarily conform to the principles of harmfulness, subsidiarity, and materiality, but are increasingly shaped by contingent political objectives. Conduct becomes relevant not because it is inherently dangerous, but because of the potential collective consequences arising from the aggregation of individual behaviors (for example, the distortion of market equilibrium and economic order resulting from the introduction of capital derived from illicit accumulation). The purposes pursued by measures that restrict fundamental rights thereby determine both the intensity and the degree of such restrictions, granting them a presumption of reasonableness and proportionality when these principles are invoked uti singuli, that is, outside the systematic interaction required by the criminal law of the fact. The emphasis on the restorative function of confiscation even assumes the character of a moralizing strategy aimed at a kind of ‘social rebirth’. Two possible scenarios thus emerge: the dogmatic annihilation of the criminal policy option to maintain or strengthen the instrument of asset prevention, or the search for corrective measures that might at least mitigate the most distortive effects of this expansion of preventive functions, while at the same time enhancing the recovery of illicit assets with a view to combating economic inequality and realizing the substantive equality of citizens, the supreme goal of a constitutional social state of law. The proposed solutions, beyond the understandable critical remarks concerning the maintenance of the current system of prevention - which nonetheless risk remaining without practical consequence - seek to provide a modest contribution and to identify a common denominator of guarantees and systematic coherence in conformity with constitutional principles. In this perspective, the incorporation of the guarantees and rights that appears to emerge from the most recent case law of the European Court of Human Rights also demonstrates the possibility of reconciling, through all the necessary corrective measures, the use of an instrument capable of countering illicit accumulation with the adequate protection of the rights of those involved in the proceedings. At the same time, however, it must also persuade us that both the branching out of the measures far beyond the original scope that marked their development, and the persistence of emergency provisions, intrinsically justified in the name of combating mafia-type criminality but progressively extended, for the purpose of asset ablation, to categories of recipients having nothing to do with profit-generating offences, risk causing the collapse of the entire system of preventive measures.