CEDH · CASELAW;DECISIONS;ADMISSIBILITY;ENG — 21 janvier 2025

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color:#474747 } .sEECE831 { font-family:Arial; font-weight:bold; color:#474747 } .sE8934522 { border:0.75pt solid #949494; padding:1.02pt 5.03pt; vertical-align:top } .sA1D3DA2E { margin-top:0pt; margin-bottom:0pt; text-align:justify }     FIRST SECTION DECISION Application no. 47269/18 Claudia GAROFALO against Italy and 3 other applications (see list appended)   The European Court of Human Rights (First Section), sitting on 21   January 2025 as a Chamber composed of:   Ivana Jelić , President ,   Erik Wennerström,   Alena Poláčková,   Georgios A. Serghides,   Gilberto Felici,   Raffaele Sabato,   Frédéric Krenc , judges , and Ilse Freiwirth, Section Registrar , Having regard to the above applications lodged on the various dates indicated in the appended table, Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicants, Having regard to the comments submitted by the association Unione delle Camere Penali Italiane , which had been invited by the President of the Section to intervene, Having deliberated, decides as follows: THE FACTS 1.     A list of the applicants is set out in the appendix. 2.     The Italian Government (“the Government”) were represented by their Agent, Mr L. D’Ascia, Avvocato dello Stato . 3.     The facts of the case, as submitted by the parties, may be summarised as follows. The first set of proceedings concerning a preventive measure 4.     On 21 December 2007 the public prosecutor attached to the Latina District Court requested the application of a preventive measure in respect of Maurizio De Bellis (the second applicant), namely, that he be placed under special police supervision ( sorveglianza speciale di pubblica sicurezza ) and that a compulsory residence order ( obbligo di soggiorno ) to stay in the municipality of his residence for a duration of five years be imposed on him. The public prosecutor argued that the second applicant fell within the category of persons of “ordinary dangerousness” ( pericolosità generica ) provided for by section   1(1) and (2) of Law no.   1423 of 27   December   1956 (see paragraph 16 below; “Law no.   1423/1956”). 5.     In a decision of 19 December 2008, the Latina District Court dismissed the request. It observed that the person in question ( proposto , that is, the person directly concerned by a request to apply a preventive measure) could not be considered a danger to society at that time and, accordingly, considered that the requested preventive measures could not be applied (see paragraph 28 below). In particular, although the second applicant had been the subject of several criminal proceedings in respect of the crimes of theft, injury, attempted murder and drug offences, the last criminal offence dated back to 2005. The second set of proceedings concerning a preventive measure and the confiscation order The first-instance proceedings 6.     In 2013, following the second applicant’s arrest for involvement in drug offences, the public prosecutor requested the Latina District Court to place him under special police supervision and impose a compulsory residence order on him for a duration of five years, and to seize and confiscate, as a preventive measure, certain assets directly or indirectly at the second applicant’s disposal, in particular those owned directly by him or by third parties on his behalf (see paragraph 27 below). 7.     On 14 January 2014 the Latina District Court ordered the seizure of assets both owned by the second applicant and at his disposal, that is, those formally owned by third parties, such as his wife, Claudia Garofalo (the first applicant), his mother, Antonia Rito (the third applicant), and his daughter, Martina De Bellis (the fourth applicant). 8.     At the hearing of 20 October 2016, in a decision deposited in the registry on 28 November 2016, the Latina District Court granted the public prosecutor’s request and imposed the requested preventive measure applied in respect of individuals (see paragraph 13 below) on the second applicant and the preventive measure of the confiscation of the seized assets. The court dismissed the second applicant’s argument that the imposition of preventive measures was precluded by the ne bis in idem principle, on account of the existence of a previous set of proceedings concerning a preventive measure, as there had been new facts justifying the imposed measures. It further observed that the second applicant could be considered a danger to society on the basis of the evidence produced by the public prosecutor and the pending criminal proceedings. Lastly, as regards the assets, the court observed that the confiscated assets, although formally owned by third parties, were actually at the second applicant’s disposal. The appeal proceedings 9.     The applicants appealed against the decision to the Rome Court of Appeal complaining, inter alia , of an alleged breach of the ne bis in idem principle and of the absence of the subjective and objective conditions required by law for the imposition of preventive measures. 10.     In a decision of 5 October 2017, deposited in the registry on 24   October   2017, the Rome Court of Appeal quashed the lower court’s decision as regards the preventive measures applied in respect of individuals (that is, the special police supervision and the compulsory residence order), observing that the second applicant had not presented a danger to society at the time of the imposition of the measures (see paragraph 28 below). Conversely, it dismissed the part of the applicants’ appeal concerning the preventive measure of the confiscation, finding that it was not necessary to ascertain that the “dangerousness” existed at the time of the imposition of the measure; moreover it considered that the assets acquired were disproportionate to the applicant’s lawful income and they had failed to prove their lawful origin. The proceedings in the Court of Cassation 11.     The applicants lodged appeals on points of law with the Court of Cassation, complaining of an alleged breach of the ne bis in idem principle and of the lack of the requirements provided for by law for the imposition of the preventive confiscation measure. 12.     In judgment no. 14347 of 13   March   2018, deposited in the Registry on 28   March   2018, the Court of Cassation dismissed the applicants’ appeals on points of law. RELEVANT LEGAL FRAMEWORK AND PRACTICE Relevant domestic law 13 .     The domestic legal framework distinguishes between preventive measures applied in respect of individuals ( misure di prevenzione personali ) and preventive measures applied in respect of property ( misure di prevenzione patrimoniali ). The evolution of the legislation concerning preventive measures in respect of individuals 14.     Preventive measures applied independently of proof of the commission of an offence date back to the nineteenth century in Italy. They   were already in existence prior to the unification of Italy in 1861 and were subsequently reincorporated into the legislation of the Kingdom of Italy by the Pica Act (no. 1409/1863), and later by the 1865 Consolidated Public Safety Act ( Testo Unico di Pubblica Sicurezza ). 15.     In 1948 the Italian Constitution came into force, placing emphasis on the protection of fundamental freedoms, in particular personal liberty (Article   13) and freedom of movement (Article 16), as well as the principle of legality in relation to criminal offences and security measures (Article   25   §§   2 and   3). 16 .     Law no. 1423/1956 on preventive measures in respect of individuals presenting a danger for security and public morality ( Misure di prevenzione nei confronti delle persone pericolose per la sicurezza e per la pubblica moralità ) provided for the imposition of preventive measures in respect of “persons presenting a danger for security and public morality”. Section 1 of the Law, as amended by Law no. 327 of 3   August   1988, provided that preventive measures applied to: “(1)     individuals who, on the basis of factual evidence, may be regarded as habitual offenders; (2)     individuals who, on account of their behaviour and lifestyle and on the basis of factual evidence, may be regarded as habitually living, even in part, on the proceeds of crime; and (3)     individuals who, on the basis of factual evidence, may be regarded as having committed offences endangering the physical or mental integrity of minors or posing a threat to health, security or public order.” 17.     Law no. 575 of 31   May   1965 on provisions against the mafia (“Law   no. 575/1965”) extended the applicability of preventive measures in respect of individuals to persons suspected of belonging ( appartenenza ) of a mafia-type organisation. 18.     Over the years, preventive measures have been adapted to comply with the fundamental criteria referred to in judgments of the Constitutional Court, requiring judicial intervention and observance of the principle of legality in their application. The evolution of the legislation concerning confiscation as a preventive measure 19 .     Confiscation as a preventive measure was introduced in the Italian legal system through section 14 of Law no. 646 of 13   September   1982, which introduced sections 2- bis and 2- ter into Law no.   575/1965. As originally formulated, the application of a preventive confiscation measure was conditional on a preventive measure being applied to an individual (see   paragraph 13 above) and, accordingly, on the “current danger” to society posed by the individual to whom the measures applied having been ascertained (see paragraph 28 below). 20 .     In 2008 the legislature made preventive measures in respect of individuals and the preventive measure of confiscation autonomous. In   particular, section 10(1)(c)(2) of Law-Decree no.   92 of   23 May   2008 (as   amended when converted into Law no. 125 of 24   July   2008) added subsection   6- bis to section 2- bis of Law no.   575/1965, stipulating that “[p]reventive measures concerning individuals and property can be requested and applied separately”. 21 .     The latter provision was further amended by section 2(22) of Law no.   94 of 15   July   2009, which added to the text, after the word “separately”, the following sentence: “regardless of the danger to society posed by the person in question ( proposto ) at the time of the request for the preventive measure.” Legislative Decree   no.   159 of 6 September 2011 22.     This Decree (the Codice delle leggi antimafia e delle misure di prevenzione – Code of Anti-Mafia Laws and Preventive Measures) was adopted on the basis of Law no. 136 of 13 August 2010, by which the Parliament entrusted the Government with reorganising the provisions concerning preventive measures. This instrument was significantly amended on the basis of Law no. 161 of 17 October 2017 (“Law no.   161/2017”). 23 .     Chapter II of Part I, entitled “Preventive measures in respect of property” regulates the preventive confiscation measure. 24 .     In accordance with the interplay between Articles 1,   4 and   16 of Decree no.   159/2011, the preventive confiscation measure may be applied to, inter alia , individuals who are suspected of belonging to a mafia-type organisation and “individuals who, on account of their behaviour and lifestyle and on the basis of factual evidence, may be regarded as habitually living, even in part, on the proceeds of crime”. 25 .     Article 18 enshrines the principle of the autonomy between preventive measures concerning individuals and property, as well as the principle of the applicability of the latter irrespective of the death of the person in question. It reads as follows: “1.     Preventive measures concerning individuals and property can be requested and applied separately and, as regards preventive measures concerning property, independently of the danger to society posed by the person in question at the time of the request therefor. 2.     Preventive measures concerning property can be imposed also in the event of the death of the person in question. In this case, the proceedings shall continue against the heirs or, in any case, the successors in title. 3.     Proceedings in respect of preventive measures concerning property can be initiated also in the event of the death of the person against whom the confiscation has been ordered; in this case, the request for the application of the preventive measure can be made in respect of all or particular heirs within five years from the death [of the person in question]. 4.     Proceedings in respect of preventive measures concerning property may be commenced or continued also in the event the person to whom the measure could be applied cannot be found [ in caso di assenza ] or resides or is domiciled abroad, on the proposal of the competent persons referred to in Article   17 in the last known place of abode of the person concerned, with regard to the goods and property which there is reason to believe are the proceeds of illegal activities or constitute the reinvestment of such goods and property. 5.     For the same purposes, proceedings may be commenced or continued when the person is subject to a custodial security measure or probation.” 26.     Article 23 § 1 provides that proceedings to impose the preventive confiscation measure are regulated by the provisions enshrined in Chapter I, Heading II, Sub-Heading I of the same Decree. 27 .     The preventive confiscation measure is regulated by Article   24 § 1 of the Decree, which, as originally formulated, read as follows: “The court shall order the confiscation of the seized assets of which the person against whom the proceedings have been instituted ( proposto ) cannot justify the legitimate origin and of which, also through the intervention of a third party ( anche per interposta persona fisica o giuridica ), he or she is the owner or has at his or her disposal, in any capacity, in a value disproportionate to his or her income, as declared for income tax purposes, or to his or her economic activity, as well as of the assets which are the proceeds of unlawful activities or constitute the reuse thereof.” The relevant parts of the provision, as amended by Law no.   161/2017, reads as follows: “The court shall order the confiscation of the seized assets of which the person against whom the proceedings have been instituted [ proposto ] cannot justify the legitimate origin and of which, also through a third party [ anche per interposta persona fisica o giuridica ], he or she is the owner or has at his or her disposal, in any capacity, in a value disproportionate to his or her income, as declared for income tax purposes, or to his or her economic activity, as well as of the assets which are the proceeds of unlawful activities or constitute the reuse thereof. In any event, the person in question cannot justify the legitimate origin of the assets by alleging that the money used to purchase them is the proceeds or reuse of tax evasion. ...” Relevant domestic practice The conditions for imposing preventive measures 28 .     In judgment no. 32 of 19 March 1969, the Constitutional Court clarified that, in order to impose a preventive measure in respect of an individual, it was not sufficient that he or she fell within one of the categories of “dangerousness” enshrined in section 1 of Law no.   1423 of   1956 (see   paragraph 16 above), it was also necessary to ascertain that the “dangerousness” existed at the time of the imposition of the measure ( attualità della pericolosità ) and was not merely potential. 29 .     The precondition for the imposition of a preventive confiscation measure is the “reasonable presumption that the asset has been purchased with the proceeds of unlawful activities” (see Court of Cassation, Combined Divisions ( Sezioni Unite ), judgment no. 4880 of 2 February 2015). 30 .     The domestic case-law clarified that, in order to be characterised as falling within the category set out in Article 1 § 1 (b) of Decree no.   159/2011 – an individual who, on account of his or her behaviour and lifestyle and on the basis of factual evidence, may be regarded as habitually living, even in part, on the proceeds of crime – it is necessary for there to have been at least one judicial ascertainment of the commission of a crime in criminal proceedings, which can derive from a conviction or from an acquittal containing a substantial ascertainment of the fact and its commission by the individual concerned (see Court of Cassation, judgments nos.   31209 of 24   March 2015, 53003 of 21 September 2017, and 11846 of   15 May   2018). The Constitutional Court considered that the cited provision could be considered sufficiently precise and foreseeable on account of, inter alia , that clarification made in the case-law (see Constitutional Court, judgment no.   24 of 27   February   2019). The nature and purpose of the preventive confiscation measure 31 .     The domestic legal order distinguishes between penalties and security measures. In principle, penalties are aimed at sanctioning the offence committed whereas security measures are aimed at preventing the commission of further offences. As to preventive measures, traditionally viewed as security measures, there has been discussion among legal scholars as to whether they – in particular confiscation – should still, in particular after the reforms in 2008-09, be classified as security measures or rather as penalties. As regards the case-law, there have been the following developments. (a)    Court of Cassation (i)       Case-law prior to the 2008-09 reform 32 .     In judgment no. 18 of 17 July 1996, the Combined Divisions of the Court of Cassation observed that preventive confiscation measures were applied in specific proceedings concerning preventive measures and in accordance with specific rules, and required the ascertainment of the “current danger” to society posed by the individual concerned (see paragraph   19 above). However, in contrast to preventive measures in respect of individuals ( misure di prevenzione personali ), which were temporary in nature, their aim was to permanently remove goods and property from the use of the person suspected of belonging to a mafia-type organisation in order to prevent the possibility of increasing the individual’s wealth through the commission of further crimes. According to the Court of Cassation, therefore, although the measure was not criminal in nature, it was not comparable to a proper preventive measure; it was rather a third species ( tertium genus ), that is an “administrative sanction” which could be equated, in its content and effects, to a security measure (see also, among others, Court of Cassation, Combined Divisions, judgment no.   57 of 8   January   2007). (ii)     Case-law following the 2008-09 reform 33 .     Following the legislative reform making preventive measures in respect of individuals and the preventive measure of confiscation autonomous (see paragraph 20 above), and allowing the imposition of confiscation as a preventive measure irrespective of the “current danger” posed by the individual in question (see paragraph 21 above), the Court of Cassation was called upon to examine the issue whether the measure had changed in nature and become a “penalty”. 34 .     In judgment no. 14044 of 24 March 2013, the Fifth Criminal Division of the Court of Cassation observed that the case-law that had equated confiscation as a preventive measure to security measures (see paragraph   32 above) had been based on the common requirement of the subjective danger to society. Given that the 2008-09 reform had eliminated the requirement according to which, in order to impose a preventive confiscation measure, the “current danger” posed by the individual had to be ascertained, the measure had acquired the “objective nature of a sanction” ( natura oggettivamente sanzionatoria ). 35 .     By contrast, in judgment no. 39204 of 23   September   2013, the First Criminal Division of the Court of Cassation confirmed that the measure remained an “administrative sanction”, since its purpose was that of “removing from economic circulation assets obtained from activities which ... are considered to be connected to the person in question being a member of a mafia-type organisation”. In its view, the fact that the measure could be imposed irrespective of the “current danger” to society posed by the individual at the material time had not changed this purpose and, accordingly, the nature of the measure, but had merely made more effective the possibility of achieving that aim. The Court of Cassation therefore held that the measure had a “preventive” and not a “punitive” nature. In particular, it held as follows: “... the public interest in the removal from economic circulation of assets of suspected illegitimate provenance, owing to their owner belonging to a mafia-type organisation, subsists for the sole fact that those assets have increased the wealth of the individual in question, irrespective of whether the latter continues to pose a danger, because the purpose of a preventive confiscation measure resides precisely in preventing the legal economic system from being altered by anomalous accumulation of wealth, whatever the current status of the person who later uses it. The preventive, and not punitive, nature of confiscation must therefore be reaffirmed, even after the 2008 and 2009 amendments ...” 36 .     Other judgments of the First Criminal Division followed the same approach (see, in particular, Court of Cassation, First Criminal Division, judgments nos. 44327 of 18   July 2013, and 16729 of 17   January   2014). (iii)    The intervention of the Combined Divisions of the Court of Cassation 37 .     As a result of the existence of conflicting interpretation, the issue was submitted to the Combined Divisions of the Court of Cassation, which addressed it in judgment no. 4880 of 2 February 2015. 38.     The Court of Cassation observed that, as the Constitutional Court had already clearly stated, confiscation measures could have different natures. While their end result was always the deprivation of economic goods and property, they could be imposed for different reasons and for various purposes, so that, sometimes, they took on the nature and function of a penalty, security measure or a civil or administrative measure. What was to be considered was not the abstract and generic notion of confiscation, but the concrete confiscation resulting from a given law, with particular reference to its underlying purpose. 39.     The Court of Cassation admitted that the 2008-09 reform had apparently done away with the main reason for equating a preventive confiscation measure to security measures, that is, the common reference to the danger to society posed by the individual concerned. However, it observed that, even under the new legal regime, the danger to society posed by the individual to whom the measure applied remained a precondition for its imposition, although it was not required that it existed at the time of the adoption of the measure. 40 .     As regards the purpose of the measure, the court held: “[T]he main purpose of the preventive measure of confiscation is, therefore, to remove illegally accumulated assets from the use of certain individuals who are unable to prove their legitimate origin.” 41 .     Observing that the imposition of the measure required in any case the ascertainment of the danger to society posed by the individual at the time when the assets to be confiscated were acquired, the court ruled out the possibility that a preventive confiscation measure could be considered a direct actio in rem . As a result of its connection with the danger to society posed by the individual, in the Court of Cassation’s view the measure retained a preventive function. In this regard, the court held as follows: “9.     ... [On the one hand,] with respect to imposing preventive measures on individuals, the requirement that the individual pose a ‘current danger’ continues to have a raison d’être , given that, that danger being capable of coming to an end or greatly diminishing with the passage of time, it would be aberrant – as objectively useless, if not for surreptitious or spurious purposes – to apply a preventive measure to an individual who was no longer a danger to society; on the other hand, with respect to preventive measures in respect of property [confiscation], the notion of dangerousness is inherent to the res , owing to its illegitimate acquisition, and is ‘genetically’ inherent to it, in a permanent and, basically, indissoluble way. This means that the inescapable condition for the application of preventive measures in respect of property is the dangerousness of the individual, that is, his [or her] classification within one of the subjective categories provided for by the relevant legislation for the purposes of the application of the preventive measure. ... This is undoubtedly true, with the necessary clarification, however, that what is important is not so much the danger posed to society by the individual concerned, considered in itself, but rather the fact that he [or she] posed such a danger at the time of the acquisition of the asset. If this is so, and if this relationship is indefeasible, in the sense that, in so far as the person who purchased it was, at the time of the purchase, a dangerous individual, the preventive function of the confiscation is enhanced, inasmuch as it is intended to prevent the commission of further crimes, given the deterrent effect of the confiscation itself.” 42 .     The Court of Cassation therefore drew a distinction between preventive measures in respect of individuals ( misure di prevenzione personali ) – applied to those who posed a “current danger” and, accordingly, aimed at preventing the commission of crimes – and preventive measures in respect of property ( misure di prevenzione patrimoniali ) – applied to “dangerous assets”: “9.     ... The observation made in the literature according to which, in applying preventive measures in respect of individuals, the attention of the legal system is focused on the character of the person as such, is therefore not unfounded: namely, in so far as he [or she] is considered, on the basis of certain parameters, to be a danger to society, that is, capable of committing crimes, according to a reasonable prognostic assessment. Therefore, a preventive measure in respect of an individual, aimed at averting the danger of the future commission of crimes, can only be justified by the persistent, current nature of the dangerousness of the individual in question. Whereas, as regards preventive measures in respect of property, that attention shifts to the res , which is considered ‘dangerous’.” 43 .     As regards the qualification of an asset as “objectively dangerous” in relation to the danger to society posed by the individual who purchased it, entailing the need to remove it from circulation irrespective of whether it was currently owned by that same individual, the Court of Cassation held as follows: “9.     ... Thus, in the case of unlawfully acquired assets, the character of dangerousness is linked not so much to the way in which they were acquired or to their particular structural characteristics, but rather to the subjective character of the individual who acquired them. This means that the purchaser’s dangerousness itself reverberates on the purchased assets, but once again not in a static way, that is to say, by the very fact of their subjective character, but rather in a dynamic projection, based on the principle of the objective dangerousness of keeping illegally acquired assets in the possession of those who are considered to belong – or have belonged – to one of the subjective categories envisaged by the legislature. The aforesaid reverberation ends up, then, by ‘objectifying itself’, translating itself into an objective attribute or special ‘character’ of the asset, capable of affecting its legal status. This is evident in the event of the death of the owner, already categorised as dangerous, or of formal transfer or fictitious registration ( intestazione fittizia ), given that the asset can, even in the possession of the successor in title, whether universal or particular, be subject to judicial attachment. In fact, it is evident that, in such circumstances, the confiscation to the detriment of heirs or apparent owners can no longer be justified by the relationship of pertinence between the res and the person in question ( proposto ), but only by reason of the objective ‘character’ of that asset, since it was, at the material time, acquired by an individual who posed a danger to society and, as such, was presumably the proceeds of a method of illegal acquisition. And,   precisely because it has become ‘objectively dangerous’ (in the above-mentioned sense), by the same token it must be removed from the system of legal circulation. Even though, in such circumstances, the direct relationship between the asset and the dangerous individual has ceased to exist, the framing of the legal situation in the paradigm of prevention nevertheless remains unaffected.” 44 .     Relying on the case-law of the Constitutional Court (see paragraph   51 below), the Court of Cassation further held that the measure was not merely preventive in the strict sense: “9.     ... In this regard, this Court shares the reasoning of the Constitutional Court, according to which the rationale of the confiscation in question, on the one hand, ‘includes, but exceeds, the aim of prevention, in so far as it aims to permanently remove the asset from illegal economic circulation, in order to insert it into another one, free from the criminal features that characterised the former’, and, on the other hand, ‘in contrast to preventive measures in the proper sense, goes well beyond the need of prevention in respect of specific individuals who pose a danger to society and therefore justifies the measure even in the event of their death. Therefore, also according to the theoretical approach of the Constitutional Court, to the essential core of prevention is added the specific purpose of removing the asset from illegal economic circulation, recovering it also from the universal heirs, in the event of the death of the dangerous individual. This extension of efficacy of the measure of confiscation cannot be considered either arbitrary or illegitimate, precisely because the asset, as the proceeds of an illegal obtainment, carries within itself a negative connotation, which requires its compulsory removal, even after the death of the dangerous individual, other than the already noted distorting effects – from a macroeconomic perspective – of the illegal accumulation of wealth and income disproportionate to the person’s situation. But if this is the case, it is evident that such notion of dangerousness remains imprinted on the res , regardless of any legal event concerning its ownership (universal or particular succession) ...” 45 .     In subsequent passages, however, the Court of Cassation further stressed the preventive (in the strict sense) purpose of the measure: “9.2.     In conclusion, in the light of the principle of autonomy between preventive measures concerning individuals and property and, above all, of the principle which stipulates the possibility of confiscating assets to the detriment of the heirs of the dangerous individual, the dimension – and the same conceptual value – of ‘dangerousness’ of the assets and property that can constitute the object of the measure of confiscation, assumes a very particular meaning. With this expression, in fact, the character of the asset must be understood as being the proceeds of habitual dedication to crime or of Mafia activity and, therefore, the expression, in both cases, of a method of illegal acquisition. As such, it must be removed – by virtue of a praeter delictum measure – from the legal economy because of the deemed need to prevent the dangerous individual from continuing to be able to use it, and also as a deterrent against the commission of further illegal activities: and this is valid – as has been said – whether one is dealing with ordinary dangerousness or in the event of qualified dangerousness.” 46 .     In the light of the above, the Court of Cassation ruled out the possibility that, even after the 2008 and 2009 legislative amendments, the measure could be considered punitive in nature. In this regard, the court added the following observations: “9.3.     In the light of these considerations, therefore, it appears justified to conclude that the legislative amendments, which removed the requirement of the “current danger” posed by the person in question, have not affected the legal nature of the preventive confiscation measure. Accordingly, this Combined Divisions of the Court of Cassation maintain that the said confiscation must continue to be recognised as having a purely preventive purpose ( finalità prettamente preventiva ), beyond any possible ‘para-punitive’ reverberations, such as to not obscure its principal essence, that is, that of being an instrument intended, principally, to dissuade the individual from committing further offences and from having a lifestyle that conflicts with the rules of civil society. The previously noted possibility to impose the measure of confiscation to the detriment of heirs and successors in title constitutes the most eloquent confirmation of the persistent preventive connotation of the measure, ruling out its punitive nature.” 47 .     In the Court of Cassation’s view, this conclusion was further confirmed by the fact that only assets acquired during the period when the individual concerned posed a danger to society could be confiscated: “9.3.     ... As is obvious, this conclusion is directly consequential to the very premise of the preventive measure, that is, the danger to society posed by the individual in question. The dangerousness marks, in fact, the ‘temporal parameter’ ( misura temporale ) of the confiscation ... It could not, moreover, be otherwise, since it is precisely the dangerousness that constitutes the justifying reason for the compulsory seizure and confiscation of assets acquired during the period in question and as a result of the particular nature of the dangerousness.” 48 .     Accordingly, the Court of Cassation stipulated that, in the light of its purpose, a preventive confiscation measure was applicable only in respect of assets acquired during the period when the individual concerned posed a danger to society: “10.     It is necessary, at this point, to deal with the correlated question of the necessity or otherwise of a chronological delimitation, that is whether there must be a temporal correlation between the acquisition of the assets and the manifestation of the danger to society [posed by the individual concerned]. In this regard, with reference to ordinary dangerousness, it is necessary to lay down the legal principle according to which only assets that have been acquired during the period of time during which the individual’s danger to society was manifested are capable of being confiscated, irrespective of whether the dangerousness persists at the moment when the proposal for application of the confiscation measure is lodged. Such a conclusion derives from the assessment of the same reason justifying the preventive confiscation measure, that is the reasonable presumption that the assets were acquired with the proceeds of unlawful activities (remaining, in this way, affected by a sort of genetic unlawfulness or, as it has been argued in the literature, by an ‘ontological pathology’) and is, accordingly, fully consistent with the reiterated preventive nature of the measure in question. By contrast, if it was possible to confiscate, indiscriminately, the assets of the individual in question, irrespective of the existence of any ‘relation of pertinence’ or temporal correlation with the danger to society posed by the individual, the measure would inevitably end up assuming the connotations of a real and proper penalty. Such a measure would therefore hardly be compatible with the constitutional parameters concerning the protection of economic initiative and private property, enshrined in Articles 41 and 42 of the Italian Constitution, as well as with the relevant Convention principles (in particular, with the principles in Article 1 of Protocol No. 1 to the Convention). In the light of these principles, the confiscation of assets, deemed to be of unlawful origin, can be considered legitimate, as an expression of the proper exercise of the legislature’s discretionary power, only when it responds to the general interest of removing unlawfully acquired assets from economic circulation. On the other hand, it is obvious that the social function of private property can be fulfilled only on the immutable condition that its acquisition is in conformity with the rules of the legal system. Therefore, the contra legem acquisition of assets cannot be considered compatible with that function, so that an unlawful acquisition can never be relied on as an argument against the State ... Moreover, there is no doubt that the identification of a precise chronological context within which the power of confiscation may be exercised renders the exercise of the right of defence much easier, in addition to fulfilling an essential general safeguard. ...” 49.     The Court of Cassation also underlined the compatibility of such a measure with the Convention and EU law: “8.6.     ... For its part, the Strasbourg Court, in relation to the identifying criteria of the penalty and the matière pénale – as determined in a well-established line of interpretation, developed in the wake of the judgments Engel v. Netherlands , 8   June   1976; Welch v. United Kingdom , 9 January 1995; and Sud Fondi and Others v.   Italy , 30   August   2007, in the light of Articles 6 and 7 ECHR, namely: the nature of the offence under domestic law; the nature of the sanction and the concrete seriousness of that sanction – ruled that it was not justifiable to place [preventive confiscation] in the category of sanctions. With reference to preventive confiscation in Italy in particular, several rulings of the ECHR have ruled out the applicability of the principles of non-retroactivity and ne bis in idem prescribed in criminal matters by Article   7 of the Convention, while in other rulings ( Capitani and Campanella v. Italy , 17   May   2011; Leone v. Italy , 2 February 2010; Bongiorno v. Italy , 5   January   2010; Perre v. Italy , 8   July 2008; and Bocellari and Rizza v. Italy , 13   November   2007), in finding that the Italian preventive measures’ procedure was not in conformity with the rule on public hearings, it was pointed out that the provisions of the Convention which had been violated, for example, Article 6 ECHR, pertained to that part of the ‘fair trial’ guarantee that was not reserved to the sphere of ‘criminal matters’. The European Court of Human Rights judgment of 22 February 1994 in Raimondo v. Italy noted that preventive confiscation was ‘designed to block these movements of suspect capital, [and was] an effective and necessary weapon in the combat against this cancer’. The decision of 15   June 1999 in Prisco v. Italy affirmed that preventive confiscation ‘affected assets which had been deemed by the courts to have been unlawfully acquired and was intended to prevent the ... applicant ... from using them to make a profit for himself or herself or for the criminal organisation to which he or she was suspected of belonging’. It should, moreover, be noted that the supranational legal system allows for interventions by the authorities that interfere with the ‘right to respect for property’ when this is deemed to be in the public interest, as enshrined in Article 1 of Protocol No. 1, ECHR, which recognises the discretionary power of the member States to enact the laws they deem necessary to regulate the use of property ‘in accordance with the general interest’. And it is also useful to refer to the EU Framework Decision 2005/212/JHA, adopted under Title VI of the Treaty on European Union, and, most recently, Directive 2014/42/EU, approved by the European Parliament on 25   February   2014, which, in recital 21, states: ‘Extended confiscation should be possible where a court is satisfied that the property in question is derived from criminal conduct. This does not mean that it must be established that the property in question is derived from criminal conduct. Member States may provide that it could, for example, be sufficient for the court to consider on the balance of probabilities, or to reasonably presume that it is substantially more probable, that the property in question has been obtained from criminal conduct than from other activities. In this context, the court has to consider the specific circumstances of the case, including the facts and available evidence based on which a decision on extended confiscation could be issued. The fact that the property of the person is disproportionate to his lawful income could be among those facts giving rise to a conclusion of the court that the property derives from criminal conduct. Member States could also determine a requirement for a certain period of time during which the property could be deemed to have originated from criminal conduct.’ 8.7.     Under the legislation in force, the principal objective of the preventive confiscation is, therefore, that of removing the unlawfully acquired assets from the disposal of certain persons, who cannot demonstrate their lawful origin. This purpose is, therefore, in full harmony with the ratio decidendi of the above-mentioned rulings of the European Court of Human Rights and with the guiding principles of the Convention.” 50.     The relevant “principle of law”, within the meaning of Article 173 §   3 of the Implementation Rules of the Code of Criminal Procedure, as established by the Court of Cassation, was the following: “13.     ... The modifications to section 2- bis of Law no. 575 of 1965 introduced by Decree-Law no. 92 of 2008 (converted into law by Law no. 125 of   2008) and Law no.   94 of 2009 have not altered the preventive nature of the confiscation ordered within the scope of preventive proceedings, so that its classification as a security measure and, therefore, the applicability, in the event of successive laws, of Article   200 of the Criminal Code, still remains valid.” (b)    Constitutional Court (i)       Judgment no. 335 of 8 October 1996 51 .     In this judgment, the Constitutional Court held that while preventive measures in the strict sense were temporary, the rationale underlying preventive confiscation measures went beyond the mere aim of prevention, since they aimed to permanently remove specific assets from economic circulation (see also Constitutional Court, judgment no.   21 of 9   February   2012). (ii)     Judgment no. 24 of 27 February 2019 52 .     In this judgment, the Constitutional Court ruled on the clarity and foreseeability of the subjective categories of “ordinary dangerousness”, in the light of the Court’s judgment in the case of De Tommaso v. Italy ([GC], no.   43395/09, 23   Febr