Decision of the Court of Cassation, United Section, No. 4880 of 26 June 2014

The United Sections of the Court of Cassation were asked to clarify whether the principle of non retroactivity of criminal law, which governs the penalty, is also applicable to those preventive measures that consist in confiscation of property suspected of being illicitly acquired by a person who qualifies as ‘socially dangerous’ (a measure provided for in Italian anti mafia legislation). The point was disputed in the legal doctrine, and also in earlier jurisprudence of the Court of Cassation. In their decision, the United Sections remembered, first, that the European Court of Human Rights has examined the question many times, reaching the conclusion that such preventive measures are not comparable with penalties, so that the principle of non retroactivity and non bis in idem under the ECHR do not apply to them. On other hand, imposing restrictions on the use of property by law is allowed under Article 1 of the First Protocol to the ECHR, provided that such restrictions are necessary to protect general interests; as a consequence the fact that the owner is qualified as still being ‘socially dangerous’ at the time of confiscation is the only prerequisite for imposing a measure of this kind. Finally, the United Sections stated that the measures in question cannot be regarded as afflictive and, thus, similar to the penalty; and this at variance with other kinds of measure provided in Italian legislation, to which the European Court of Human Rights has referred in its decision of 2014 on the case Grande Stevens v. Italy.