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Release from forfeiture of illegal gain

# entity liability: with judgment no. 13936, filed on 11 April 2022, the Supreme Court annulled the judgment with possibility of appeal by the Court which had not allowed the partial #release of the sums being seized.

The Supreme Court established, amidst the silence of legislative decree 231/2001, a constitutionally oriented interpretation of the principle of proportionality of #preventive confiscation aimed at seizing a company’s assets. In the present case, the seized sums would have represented the profit of the predicate offence of influence peddling pursuant to art. 346 bis of the penal code carried out to supply orders for masks to deal with the COVID-19 emergency.

The Court deemed it necessary to admit the partial release of about 16 million euros of the seized sums to pay the tax debt, which was necessary in order to avoid the definitive closure of the business caused by the concurrent seizure and the unavoidable impact brought about by the tax obligation. If this were to happen, the Court stated, the seizure would result in a form of definitive closure of the business activity involving “overbearing restrictions on the freedom to exercise the business activity, on the right of property, on the right to work, thus jeopardizing the very legal existence of the body corporate”.

Hence, preventive seizure would end up violating the principle of proportionality enshrined at the national and supranational level.

In its judgment, the Court also specified that the partial release of the sums can be admitted upon evidence of a forfeiture that “jeopardizes the current operations and, therefore, the very existence of the private entity and for the sole limited purpose of paying the tax debt, with the strict obligation to pay the sums for this specific purpose only.”

Marialaura Brancato