The inapplicability of preventive seizure to the entity

by Azzurra Vezzà

Abstract

In judgment no. 19717 of May 27, 2025, the Supreme Court excluded the applicability of preventive seizure pursuant to Article 321 par. 1 of the Italian Code of Criminal Procedure to an entity liable under Legislative Decree 231/2001.

The case

The Public Prosecutor at the Court of Trani has submitted a request to the Preliminary Investigation Judge for the application of preventive seizure against a company, whose shareholders are under investigation for the crime referred to in Article 40, par. 1, letter c) and 45 of Legislative Decree 504/1995 – for allocating agricultural fuel at a preferential tax rate for private use – and for multiple offences of corruption in collusion with members of the police force.

The Preliminary Investigation Judge and, subsequently, the Court of Trani rejected the Public Prosecutor's request, noting that:

  • i) Article 44 of Legislative Decree 504/1995 provides only for the seizure of the products and resources used to commit the offense and not for the seizure of the company, and that in relation to the offense of corruption, only the seizure of price and profit oof the offence is provided for; 
  • ii) In relation to the company, there are no preventive reasons given by the fact that the danger of repeating the crimes has been prevented by applying personal preventive measures against the shareholders. 

The appeal

The Public Prosecutor appealed to the Court of Cassation against the rejection by the Court of Trani, pointing out that at the time of the rejection by the Court of Trani, the Preliminary Investigation Judge had revoked the personal preventive measures against the shareholders, and therefore the risk of repetition of the crime should have been re-evaluated.

The Public Prosecutor added that the risk of repetition in relation to the preventive seizure could not be excluded due to the application of other personal preventive measures. 

The Court's ruling

The Court of Cassation found that the Prosecutor had not provided clarification regarding the charge against the company and, consequently, the fumus commissi delicti in relation to which the applicability of the preventive measure must be assessed.

However, the Court assessed the applicability of preventive seizure against the company investigated pursuant to Legislative Decree 231/2001.

The Court referred to the doctrine which states that “preventive seizure applicable to companies – governed by Article 53 of Legislative Decree No. 231 – is completely different in terms of purpose, scope of application, and regulation from the equivalent preventive measure governed by the Code of Criminal Procedure.”

In the opinion of the court, the fact that Article 53 "does not expressly provide for the possibility that, in proceedings against a company, assets relevant to the offense" may be seized, read in light of the failure to refer to Article 321 par. 1 of the Code of Criminal Procedure, means that the preventive seizure cannot be applied against a company pursuant to Legislative Decree No. 231 of 2001.

Therefore, in the opinion of the Supreme Court judges, Legislative Decree 231/2001 “leaves no doubt about the exclusion of preventive seizure referred to in the first paragraph of Article 321 of the Code of Criminal Procedure from the list of preventive measures that can be applied to the companies.”