Barbara Vettori Assistant Professor in Criminology at the Catholic University of Milan – International Seminar on “The Italian Experience in Investigating, Confiscating and Administering Property Acquired From Criminal Activity “ Sofia, 28 th October 2011 The Italian approach in investigating, confiscating and administering property acquired from criminal activity W Università Cattolica del Sacro Cuore, Milano

1. A short history 2. Within criminal proceedings (conviction based) 3. Within preventative proceedings (non-conviction based) 4. Some case studies 5. Non-conviction based confiscation & ECHR OUTLINE Barbara Vettori Assistant Professor in Criminology at the Catholic University of Milan

1. A short history Barbara Vettori Assistant Professor in Criminology at the Catholic University of Milan - Until the 80’s: traditional form of confiscation (article 240 c.c.) - art. 240, par. 1: optional confiscation of the profit obtained from a crime; - art. 240, par. 2, n. 1: mandatory confiscation of the price obtained by the offender for commission of the crime - conviction as a prerequisite; no confiscation from third parties; strict link crime/assets - turning points: 1982 & 1992

Art. 12-sexies of law 356/1992: - introduced after “possesso ingiustificato di valori” (art. 12- quinquies) was declared unconstitutional - prerequisite: a conviction for offences typically related to the activity of criminal groups - confiscation applies to assets at the disposal of the convicted person and out of proportion to his/her income/econ. activity - …unless the defendant has been able to prove its licit origin 2. Within criminal proceedings Barbara Vettori Assistant Professor in Criminology at the Catholic University of Milan

Art. 2-ter of law 575/1965 (as amended by law 646/1982): - suspected mafiosi, as socially dangerous people, subject to personal & financial preventive measures (ante or praeter delictum) - including seizure and confiscation (sequestro and confisca di prevenzione) - extensive financial investigations to assess sources of income of suspected people (and of third parties) - seizure of the defendant’s assets directly or indirectly at his/her disposal, either if 1) disparity between the defendant’s wealth and his/her income, or 2) sufficient evidence that the assets are the proceeds of crime - confiscation of seized assets whose lawful origin has not been demonstrated by the defendant 3. Within preventive proceedings Barbara Vettori Assistant Professor in Criminology at the Catholic University of Milan

Confiscation under art. 2-ter of law 575/1965: CASE STUDY N , Palermo Tribunal, Bologna case - confiscation of drug trafficking proceeds, worth 11 million euros - various asset typologies (real estate, companies, vehicles) - also from third parties (e.g. his daughter) - assets previously seized (2007) - precise assets identification, from the very beginning 4. Some case studies (1) Barbara Vettori Assistant Professor in Criminology at the Catholic University of Milan

CASE STUDY N , S. Maria Capua Vetere Tribunal, D’Alessandro case - confiscation of real property + a car worth over euros - also from third parties, i.e. his wife because she hadn’t any legal income justifying her wealth - assets previously seized (2008) - some seized assets given back at the end of the procedure 4. Some case studies (2) Barbara Vettori Assistant Professor in Criminology at the Catholic University of Milan

Confiscation under art. 12-sexies of law 356/1992: CASE STUDY N , Reggio Calabria Appellate Court, Silvera Darnich case - 7 years and 4 months imprisonment + extended confiscation, worth euros - key role in drug trafficking operations run by ‘Ndrangheta - various asset typologies, clearly identified (e.g. accounts, 3 flats located in Milan, corso Lodi, a Bmw car) - significant disproportion assets/legal income 4. Some case studies (3) Barbara Vettori Assistant Professor in Criminology at the Catholic University of Milan

CASE STUDY N , Perugia Appellate Court, Operation Hyena - confiscation of assets worth euros from receiving stolen property - one year of financial investigations – huge amount of data analysed - various asset typologies, clearly identified (e.g. 4 bank accounts, 1 flat located in Perugia, 5 cars, 1 motorcycle, 3 companies) - disproportion assets/very limited sources of legal income - one of the first cases in Umbria region 4. Some case studies (4) Barbara Vettori Assistant Professor in Criminology at the Catholic University of Milan

Art. 1 of Protocol No. 1 to the ECHR - Right to Property “Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law. The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties” Art. 6 of the ECHR - Right to Fair Trial 5. Non-conviction based confiscation & ECHR (1) Barbara Vettori Assistant Professor in Criminology at the Catholic University of Milan

M. v. ITALY (12386/86) confisca di prevenzione does not violate: - art. 1 of Protocol No. 1: “undoubtedly constituted interference with the applicant’s right to ‘peaceful enjoyment of his possessions”, but within the meaning of par. 2, i.e. “to prevent the illicit use, in a way dangerous to society, of possessions whose lawful has not been established” - art. 6: not a reversal of the burden of proof, rather a burden of rebuttal on the defendant (“the prosecution was required to state the evidence of the unlawful origin of each of the items concerned and the applicant had the opportunity to rebut this evidence”); proceedings conducted “in the presence of both parties in three successive courts” Barbara Vettori Assistant Professor in Criminology at the Catholic University of Milan 5. Non-conviction based confiscation & ECHR (2)

RAIMONDO v. ITALY (12954/87) again on confisca di prevenzione: “confiscation pursued an aim that was in the general interest, namely it sought to ensure that the use of the property in question did not procure for the applicant, or the criminal organisation to which he was suspected of belonging, advantages to the detriment of the community. […] the respondent State did not overstep the margin of appreciation left to it under the second paragraph of Article 1 (P1-1)” Similar positions expressed in the decision on the case ARCURI AND OTHERS V. ITALY (54024/99) Barbara Vettori Assistant Professor in Criminology at the Catholic University of Milan 5. Non-conviction based confiscation & ECHR (3)

Barbara Vettori Assistant Professor in Criminology at the Catholic University of Milan – International Seminar on “The Italian Experience in Investigating, Confiscating and Administering Property Acquired From Criminal Activity “ Sofia, 28 th October 2011 The Italian approach in investigating, confiscating and administering property acquired from criminal activity W Università Cattolica del Sacro Cuore, Milano