INTERNATIONAL COOPERATION FOR THE DETECTION OF
CORRUPTION OFFENCES AND FOR IDENTIFICATION, FREEZING
AND CONFISCATION OF ASSETS: THE ITALIAN SYSTEM OF NONCONVICTION-BASED CONFISCATION
Dr. Francesco Testa＊

I. FOREWORD
Confiscation of proceeds of crime plays a crucial role in the fight against any form of profit-making crimewhatsoever. This has been repeatedly observed within the international community, and it is definitely
agreed that confiscation prevents criminals from making use of their illicit wealth to finance other criminal
activities, including organized crime and corruption.
In order to combat organized crime and other serious crimes, Italy, either in accordance to its ancient
tradition and as follow up of international inputs, has shaped a comprehensive system that is the result of astrategy conceived for mafia-based organizations, according to which as mafias are in the end profit-oriented
illicit associations, it is crucial not only to prosecute its main actors (leaders and supporters), but also to tackle
those assets which were obtained through criminal acts.
After almost thirty years of experience, which has led to the confiscation of a significant amount of highly
valuable assets, Italian legislation is now based on a multiple approach, based on various kinds of confiscation
with the correspondent freezing measures.
This system may be sketched out by mentioning the following main instruments:a) Ordinary confiscation, aimed at confiscating assets linked to a specific crime, following a criminal
conviction for that crime;b) Value confiscation, so that assets of equivalent valve can be confiscated as well, where specific criminal
assets are outside the reach of investigators;c) The so called “extended” confiscation, which can be ordered within a criminal proceeding, or as aconsequence of a conviction for serious economic crimes, especially when organized crime is involved;that is the case when a criminal conviction is followed by the confiscation not only of the assets
associated with the specific crime, but of additional assets which the court determines are the proceedsof other, unspecified crime. Confiscation may be based on circumstantial evidence, e.g. balance between
a personʼs assets and the lawful source of income;d) Third party confiscation, so that assets can be confiscated from third parties to whom they have beentransferred.
e) Non-conviction-based confiscation, ordered through a separate proceeding aimed at recovering
illicit assets, removing the need for a criminal conviction;
In the Italian experience, extended confiscation and especially “preventive confiscation” (otherwise called
non-conviction-based confiscation) do play a pivotal role.

＊Chief Prosecutor, Chieti Prosecutorʼs Office, Italy.

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II. AN OVERVIEW OF THE ITALIAN LEGISLATION ON NON-CONVICTIONBASED CONFISCATION
Italy introduced in 1982 the so-called “preventive measures on assets”, that now are regulated byLegislative Decree n. 159/2011. The rationale behind their introduction was that the most effective way tocombat criminals and criminal groups is to affect their finances and to recover the proceeds of their activities.
In 1982 it was already clear that the quick accumulation of enormous assets is the common objective of any
kind of criminal anywhere in the world (drug traffickers, corrupt persons, criminal organizations, traffickers
in arms and human beings etc..), and that in some cases it is more appropriate to affect all those people
accumulating illegal assets at the economic level, rather than starting lengthy criminal proceedings (i.e. thepersonal level).
In other words, it became evident that it is more effective to tackle the criminalsʼ assets rather than
temporarily affecting their liberty, and that shifting the focus from the criminals to their assets is necessary.
This led to the introduction of non-conviction-based confiscation in the Italian legal system, which allows
every year for the confiscation of a significant amount of highly valuable assets.
Confiscation normally follows a criminal verdict, finding a person guilty of certain offences and, thus,making his/her assets suitable for confiscation. In addition, Italian law provides for a particular form of
forfeiture and confiscation, working as non-conviction-based confiscation or actio in rem (“action against theasset itself”), which can be applied even in the absence of a criminal conviction. As said before, theseinstruments are called “Misure di prevenzione patrimoniali” (“Preventive measures on assets”).
Therefore, the Italian legislation regarding confiscation is based on a two-fold approach, whereas nonconviction-based confiscation represents one of the two tools employed to combat all forms of profit-oriented
crimes, especially organized crime. The “preventive” measures (forfeiture and confiscation) are ordered andenforced through a specific proceeding, managed by the criminal Court in each district.
They can be applied, under certain conditions, to the assets of the following:
1) those suspected of belonging to mafia organizations;2) those suspected of having committed one of the serious crimes listed by law (money-laundering,trafficking in human beings, smuggling of migrants, drug trafficking, kidnapping for ransom, organizedtrafficking in hazardous waste etc...);
3) those usually devoted to illegal dealings or usually living with proceeds from criminal activities(including corruption);4) those who have committed preparatory acts of subversion or of terrorism;5) natural and legal persons reported by the United Nations Sanctions Committee or any otherinternational organization which is competent to freeze economic resources when they might bedissolved, concealed or used to support international terrorist organizations or activities.
The status of “suspected” implies (first condition), the considerable probability of guilt. In the Italian“preventive” proceedings, criminal offences must be established on a balance of probabilities standard of
proof, as the judge must ascertain the existence of “sufficient clues” of one of the above-mentioned crimes.
Criminal lifestyle and criminal relationships, previous convictions, information provided by cooperative
defendant, interceptions and documents from criminal proceedings and trials may all constitute a reasonableground for the application of the preventive measures.
The same will happen when the indicted person has been acquitted in a criminal proceeding because
he/she was not found guilty “beyond any reasonable doubt”, when the proceeding has been terminatedbecause the defendant has died, or the statute of limitations has been applied.
Towards the aforementioned groups of people (second condition), the Court may order seizure and10

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confiscation of those assets which the suspect, directly or indirectly, is found to own or have at his disposal forwhatever purpose, when their value appears to be out of all proportion to his income, as reported in theincome tax return, or to his own economic activity, or when it can be reasonably argued, based on theavailable evidence, that said assets are the proceeds of unlawful activities or the use thereof.
It is also possible to seize and confiscate assets from third parties when it is proved that they belong tosuspected persons. The illicit purchase of assets also justifies the seizure and confiscation of those goods
which are passed to the heirs when the suspected person dies either during the confiscation proceedings or ifsuch proceedings have been initiated within five years from his or her death.

III. ITALIAN NON-CONVICTION BASED-CONFISCATION AND
THE PRINCIPLE OF DUE PROCESSThe criminal proceedings/trials follow the usual procedure, but the Italian prevention proceedings also
ensure the highest standard of guarantees and fully respect the principle of due process, as the Italian
Constitutional Court and the European Court of Human Rights have often recognized.
Hereinafter is a brief overview of the main features of the preventive confiscation process:a) Even though the person might have already received a criminal conviction for a related offence, thecompetent Court has to ascertain itself the degree of danger posed by the same person and, inparticular, the high probability of being found guilty through a new fact-based inquiry. Hence, even a
previous conviction for a related offence may not suffice to order the confiscation of his/her assets;b) Asset seizure/confiscation is decided, upon request of the public prosecutor, by a panel of three judges
belonging to the criminal Court in each district;c) After the asset seizure, all involved actors (the suspected person and third parties) may file a complaint
before the Court, should they consider their rights breached;d) In any case, a hearing is scheduled shortly after the seizure, and on that occasion (which, upon request,is public) cross-examination between the public prosecutor and third parties is ensured before theCourt; in this hearing a wide range of requests and evidence can be presented by the parties;e) The Judgesʼ panel provides written ruling of its decision, similar to that provided in criminal
proceedings, and the decision can be challenged before the Court of Appeal;f) The Court of Appeal, consisting of a panel of three judges, decides after cross-examination and releases
the explanation of its decision as for any other judgment;g) The decision of the Court of Appeal can be appealed before the Court of Cassation, which decides
through one of its criminal sections;h) In case new and unknown elements are brought up after the final decision is released, the parties canalso submit a request for revocation of the confiscation order;i) Since the seizure and confiscation of assets does not entail prison-related criminal sanctions, theproceedings against property can continue independently from the outcome of the criminal proceedings(e.g. in case the latter cannot continue because of the statute of limitations or the defendantʼs death).
The non-conviction-based confiscation seeks to remove from the legal economy those assets which wereacquired illegally. The owner is not punished at the personal level since the objective is to prevent him/herfrom using the illicitly gained assets to commit further crimes or affect the market. Hence, as established by
the Italian Court of Cassation and by the European Court of Human Rights in several judgments,
confiscation is a preventive measure against criminal assets and does not aim at sanctioning the individuals
themselves, thus not all the guarantees accorded to individuals are necessary.

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To sum up, the proceedings fully ensure the respect of judicial guarantees to the parties, which canoppose the prosecution in a regime of cross-examination: a) third parties may put forward elements regarding
the effective ownership of an asset and thus about his/her lack of involvement with the suspected person; b)
the suspected person may prove the legitimate purchase of the seized assets.
It is also worth noting that the Italian non-conviction-based confiscation fits exactly, both in form andsubstance, to the provisions of articles 12 paragraph 7 of UNTOC and articles 53 and 54 of UNCAC.
According to article 12 paragraph 8 of UNTOC, in fact, “States Parties may consider the possibility ofrequiring that an offender demonstrate the lawful origin of alleged proceeds of crime or other property liable toconfiscation, to the extent that such a requirement is consistent with the principles of their domestic law andwith the nature of the judicial and other proceedings” (allows for the reversal of the burden of proof).
Article 54 paragraph 1 of UNCAC (mechanisms for recovery of property through international
cooperation in confiscation) states: “1. Each State Party, in order to provide mutual legal assistance pursuant
to article 55 of this Convention with respect to property acquired through or involved in the commission of anoffence established in accordance with this Convention, shall, in accordance with its domestic law: [.....] (c)Consider taking such measures as may be necessary to allow confiscation of such property without a criminal
conviction in cases in which the offender cannot be prosecuted by reason of death, flight or absence or inother appropriate cases.”
In Italy, the success of non-conviction-based confiscation can be explained because it requires a lower
standard of proof (although fully ensuring the respect for the principle of due process) and is particularly
effective for those areas of contiguity with criminal organizations, where a verdict at the end of a criminal
proceeding is very difficult to achieve.
Due to the above-mentioned features, non-conviction-based confiscation can be seen as a facilitated (andfacilitating) form of asset recovery which eases the burden of proof. Hence its legitimacy has been therefore
repeatedly challenged in the relevant countries, assuming its inconsistency to the principle of due process andother fundamental rights.
It must be highlighted, on the contrary, that the Italian non-conviction-based system has been always
declared consistent with the presumption of innocence and the fundamental property rights, both fromthe European Court of Human Rights and from the supreme courts of Italy. In particular, the reversal of
the burden of proof (and the possible violation of the presumption of innocence) and the interference withproperty rights have been repeatedly considered consistent with the provisions of European Convention
on Human Rights (article 6, right to a fair trial) and to those of Article 1 of the First Protocol of thesame Convention (protection of property).

IV. THE NEW EU DIRECTIVE 2014/42
At the European level, the new EU Directive (2014/42) on the freezing and confiscation ofinstrumentalities and proceeds of crime was adopted on 3 April 2014. The Directive establishes minimum
rules on the freezing of property with a view to its subsequent confiscation for the serious crimes listed inArticle 83 (1) of the Treaty on the Functioning of the European Union. It maintains conviction-based
confiscation as a general rule, but introduces non-conviction-based confiscation, even though as a residualhypothesis. Thus, non-conviction-based confiscations shall be introduced in the EU Member Statesʼ nationallegislation, but the scope of application of such confiscation is limited in the Directive to the cases in which afinal conviction could not be obtained as a result, inter alia, of illness or flight of the suspected or accused
person. It is also requested that a criminal proceeding be initiated for a criminal offence which is liable to giverise to economic benefit, and that such proceeding could have led to a criminal conviction.

V. INTERNATIONAL COOPERATION ON NON-CONVICTION-BASEDCONFISCATION: THE ITALIAN EXPERIENCE
Italy can report a number of successful experiences on international judicial cooperation in the field ofasset recovery. Some of the following cases are related to the execution of non-conviction-based confiscation
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and have been managed through case-by-case agreements with the requesting/requested State.
A. Switzerland
Three agreements have been signed with Switzerland in order to share in equal parts assets confiscatedby Swiss authorities in response to requests made by Italian judicial authorities.
a. The first case concerns the confiscation order issued by the Court of Appeal of Turin against an Italian
citizen convicted of drug trafficking. Italy and Switzerland have shared equally assets amounting to EUR
550.462,00.
b. The second case concerns a non-conviction-based confiscation order issued by the Court for Preventive
Measures in Santa Maria Capua Vetere (Caserta) in the course of the preventive proceedings against an
individual suspected of money laundering and of financing the illegal activities of the criminal organizationcalled “Camorra”. Italy and Switzerland have shared in equal parts assets amounting to 13.8 million EUR.
c. The third case concerns the execution of a confiscation order of sums issued by the Court of Milan on 12.10.
2009, against an individual convicted of money laundering. Italy and Switzerland signed in August 2015 anagreement for the division of values confiscated in Switzerland, for an amount of 5.195.660,85 Swiss francs.
These sums have not been transferred to Italy yet.
B. United States of America
The United States of America transferred to Italy assets seized in execution of an order issued by theCourt of Appeal of Bologna, at the request of the Attorney Generalʼs Office at Court of Appeal of Bologna, inthe criminal proceedings against an Italian citizen. The total amount of the sums is EUR 1.898.928,42.
In a different case, the United States of America also transferred to Italy an amount of USD 1.500.000,00
recognizing that the confiscation in the United States was made possible as a result of the wide cooperation
given by the Italian authorities in connection with a criminal proceeding of the Anti-Mafia Prosecutorʼs Officeof Rome.
C. France
In execution of a non-conviction-based confiscation order issued by the Court for Preventive Measures inMilan, France seized an apartment in Cap dʼAntibes. Italy and France have agreed on the sale of the property
and the allotment between the two States of amounts obtained through such sale.
It is worth noting that, in granting the enforcement of the confiscation order, the French Court ofCassation clearly valued the parallel criminal conviction, finding: that the Italian non-conviction-based
confiscation could «in this context be seen as a criminal verdict»; that it was widely proved the illicit origin of
the confiscated apartment; and that it would be confiscated under the French law (criminal confiscation).
D. SpainIn execution of a non-conviction-based confiscation order issued by the Court of Rome, Preventive
Measures Section, within the prevention proceeding against an Italian citizen, the “Audiencia Nacional”
ordered the registration in the “Register of corresponding Properties” of the prohibition of sale of a property
in Spain. It was proposed by the Italian Ministry of Justice to the Spanish authorities to proceed with the saleof the property seized and the allotment of sums obtained through the sale.
In a different case, the Spanish authorities have also transferred to Italy amounts seized in execution of aseizure order issued by the Court of Rome in a criminal proceeding.
E. Austria
Italy has recently forwarded to the Austrian authorities a request for international cooperation,
requesting the execution of a non-conviction-based confiscation order issued by the Court of Reggio Calabria,
related to a prestigious property in Baden.

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