Decision of the Court of Cassation, III Criminal Section, No. 42458 of 10 June 2015

The Court of Cassation decided that the confiscation of cultural objects illegally exported may be ordered (ex Article 174 of legislative decree No. 42/2004) even in the lacking of a sentence for this criminal offense (which might, for example, occur due to statutory limitations). In the opinion of the Court, a different interpretation would be inconsistent with the provisions concerning trafficking in cultural property of the UNESCO Convention of 1970 and the UNIDROIT Convention of 1995 . For the European Court of Human Rights, however, the fact of applying a sanction of any kind (including confiscation) in respect of a person whose criminal responsibility has not been ascertained infringes Article 7 of the ECHR (‘nulla poena sine lege’); this principle emerges from the European Court decision of 2013 on the case Varvara v. Italy. For the Court of Cassation, a duty of Italian judges to conform with the interpretation of the ECHR given by the European Court exists, however, only in case that this interpretation is well-established.