Non-conviction-based confiscation: a multilevel focus on Italy, Directive 2024/1260/EU and Regulation 2018/1805/EU

• In Event: Recent Legislative and Policy Developments on Non-conviction-based confiscation in Europe

Abstract

Non-conviction-based confiscation (NCBC) is a legal tool that allows the seizure of assets derived from criminal activities without requiring a criminal conviction. In Italy, NCBC has been a crucial element in the fight against crime, particularly through preventive confiscation measures established by Legislative Decree No. 159/2011 (the "Anti-Mafia Code"). These measures target assets linked to individuals suspected of involvement in illicit activities, even in the absence of a formal conviction. The Italian system is widely regarded as effective, having contributed significantly to the disruption of criminal networks and the reintegration of confiscated assets into the legal economy.
Directive 2024/1260/EU marks a significant step in harmonizing EU’s approach to NCBC, with Articles 15 and 16 serving as key provisions. Article 15 authorizes confiscation without a criminal conviction when prosecution is impossible due to listed and limited factors. Article 16 introduces the concept of confiscation of unexplained wealth linked to criminal conduct, allowing authorities to seize assets whose lawful origin cannot be adequately justified. This aligns closely with Italy’s well-established system of preventive confiscation, which similarly permits asset seizure based on a person's suspected involvement in organized crime, even without a formal conviction.
Additionally, the effectiveness of NCBC measures within the EU depends on mutual recognition of confiscation orders across Member States. Regulation 2018/1805/EU establishes a framework for the mutual recognition of freezing and confiscation orders, included NCBC ones. The interplay between Directive 2024/1260/EU and Regulation 2018/1805/EU is crucial in strengthening cross-border asset recovery and preventing criminals from shielding illicit assets by moving them between jurisdictions.
This paper analyses both Italy’s and EU’s NCBC framework, while also examining the role of Regulation 2018/1805 in facilitating cross-border enforcement. It assesses the impact of these legal instruments on the EU’s evolving strategy for tackling illicit wealth and enhancing asset recovery mechanisms.

Author

• Oscar Calavita, University of Turin