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Mandatory corporate asset confiscation has reached a critical constitutional crossroads, challenging the boundaries between economic deterrence and disproportionate punishment. When financial penalties operate automatically without regard to the actual illicit profit gained or the individual degree of guilt, they cease to function as corrective measures and transform into punitive confiscations that risk violating fundamental human rights charters.
The constitutional review of Article 2641 of the Italian Civil Code addresses whether courts must retain discretionary power to calibrate equivalent asset confiscations in cases involving market manipulation and the obstruction of supervisory authorities. Because existing procedural law bars the reopening of final convictions absent a formal finding of unconstitutionality under Article 673, paragraph 1 of the code of criminal procedure and Article 30, fourth paragraph, of Law 87/1953, the outcome bears direct systemic consequences for the entire architecture of corporate economic sanctions.
Historical and Geopolitical Context
The development of corporate criminal sanctions across European jurisdictions has long oscillated between preventive security measures and direct financial penalties. In the Italian legal framework, the historical distinction between penalties and security measures is rooted in the second and third paragraphs of Article 25 of the Constitution, which assign different legal boundaries to each category. While security measures traditionally aimed at neutralizing dangerous assets, modern statutory confiscations have increasingly assumed a distinctly punitive character.
This evolution became particularly acute following regulatory reforms in market abuse legislation. Under the framework established by the 2004 Community Law (Legge comunitaria 2004), lawmakers instituted mandatory direct and equivalent confiscation for administrative market abuse violations under Articles 187 and 187-sexies of the Consolidated Law on Finance (Testo Unico della Finanza). That framework initially mandated the seizure of the entire product of the infraction and the means used to commit it, rather than restricting the sanction strictly to the net illicit profit generated by the unlawful conduct.
The resulting systemic imbalance became evident when comparing administrative market abuse sanctions with criminal confiscation governed by Article 2641 of the Civil Code. While administrative jurisprudence progressively adapted under European pressure to separate net profits from broader operational assets, criminal provisions remained anchored to a rigid structure that mandates the seizure of equivalent assets whenever direct confiscation proves impossible. This structural rigidity created a profound divergence within the national legal order, compelling constitutional scrutiny of statutory provisions governing corporate offenses.
The Italian Constitutional Court convened at the Palazzo della Consulta in Rome to examine whether these rigid statutory mechanisms breach overarching constitutional and European Union proportionality standards.
Key Actors and Institutional Jurisdictions
The formal constitutional proceeding originated from incidental judicial referral, focusing on the constitutional compatibility of Article 2641, first and second paragraphs, of the Civil Code. The adjudication brought several prominent institutional and legal figures before the constitutional bench during the public hearing of December 10, 2024, leading to the decision rendered on February 5, 2025.
The judicial panel was led by Constitutional Court President Amoroso, with Judge Rapporteur Francesco Viganò ([[Francesco Viganò|Q50825313]]) directing the legal analysis of the case file. The defense for the defendant, identified in procedural records as G. Z., was conducted by defense counsel Enrico Mario Ambrosetti and Tullio Padovani, who argued that automatic, ungraduated asset forfeiture violates the principle of individualized punishment.
The review also directly integrates supranational jurisprudence, notably the European Court of Justice (CJEU) ruling in case NE regarding Article 49, paragraph 3, of the Charter of Fundamental Rights of the European Union (CDFUE). That European precedent establishes that national courts must disapply domestic provisions that mandate disproportionate sanctions, restricting forfeiture strictly to what is necessary to achieve proportionate deterrence.
Critical Analysis of Evidence and Jurisprudential Friction
At the core of the constitutional inquiry lies the fundamental nature of criminal asset confiscation under Article 2641, first paragraph, of the Civil Code. When ordered by a criminal judge, such forfeiture cannot be treated merely as an administrative restitution; it constitutes an authentic financial penalty (vera e propria pena di carattere patrimoniale) that operates in addition to primary custodial sentences. Consequently, it must comply fully with constitutional and European safeguards governing criminal punishment.
“The principle of proportionality is a systemic requirement in the Italian constitutional order, in relation to every act of authority capable of affecting the fundamental rights of the individual.”
This systemic requirement, anchored in Articles 3 and 27 (first and third paragraphs) of the Italian Constitution and mirrored in Article 49, paragraph 3, of the CDFUE via Articles 11 and 117, mandates that no criminal penalty may constitute a disproportionate reaction to the gravity of the offense. For financial penalties involving the ablation of personal or corporate wealth, proportionality must account not only for the objective and subjective severity of the crime, but also for the specific economic and patrimonial condition of the sanctioned individual.
The critical tension in Article 2641 of the Civil Code stems from the absence of judicial discretion. When applied to offenses such as market manipulation (aggiotaggio manipolativo) and the obstruction of supervisory bodies, the statute creates an automatic mandate. If direct confiscation of illicit assets is impossible, equivalent confiscation must target unrelated legitimate assets without allowing the trial judge to calibrate the seizure according to individual culpability or economic capacity.
The severity of this mechanism becomes striking when evaluated against the conversion criteria set forth in Article 135 of the Criminal Code. Under these statutory formulas, converting massive financial confiscation amounts into theoretical days of custodial confinement yields penalties of colossal magnitude. This occurs completely independent of the severe primary custodial sentence applicable to the offense, which already spans from two to eight years of imprisonment.
Regulatory oversight of financial markets and corporate reporting requires effective enforcement, but disproportionate confiscation schemes risk turning deterrence into an unconstitutional barrier to rehabilitation.
Such inflexible penalties inevitably generate a perception of structural injustice in the condemned person. As established in prior constitutional jurisprudence, including Judgments 68/2012, 112/2019, 24/2019, 73/2020, and 5/2023, excessively rigid or fixed penalties (pene fisse) run contrary to the principle of personal criminal responsibility and create an insurmountable obstacle to the constitutional mandate of social re-education.
Furthermore, the proceedings underline a critical procedural bottleneck. Under the existing framework of Italian living law (diritto vivente), a favorable shift in judicial interpretation is insufficient to permit the revision of definitive, res judicata criminal convictions. Reopening past convictions requires a formal declaration of constitutional illegitimacy under Article 673, comma 1, of the code of criminal procedure and Article 30, fourth paragraph, of Law 87/1953. In the absence of a structural legislative overhaul, the Constitutional Court’s targeted ablation remains the sole legal remedy capable of rectifying entrenched disproportions in corporate criminal enforcement.
Transparency and Legal Source
This dossier is constructed exclusively from official judicial records of the Italian Republic. The primary reference document is Judgment No. 7 of 2025 (ECLI:IT:COST:2025:7), arising from incidental constitutional review, argued in public hearing on December 10, 2024, and filed on February 5, 2025 (U. 05/02/2025 n. 6).
Pursuant to Article 5 of Italian Law No. 633 of April 22, 1941, official texts of state acts and public administrative bodies are excluded from copyright protection and reside permanently in the public domain. The complete, authentic judgment and related legal summaries are accessible directly through the official repository of the Constitutional Court at cortecostituzionale.it.