CEDH · CASELAW;JUDGMENTS;CHAMBER;ENG — 23 octobre 2025

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font-weight:bold; color:#424242 } .sBAADFE8C { border:0.75pt solid #838383; padding:1.02pt 5.03pt; vertical-align:top } .sF6A12959 { width:33%; height:1px; text-align:left } .s85226119 { margin-top:0pt; margin-bottom:0pt; text-align:justify; font-size:10pt } .s653E6C45 { font-family:Arial; font-size:6.67pt; vertical-align:super; color:#0069d6 } FIRST SECTION CASE OF TARTAMELLA AND OTHERS v. ITALY (Applications nos. 26338/19 and 2 others – see appended list)   JUDGMENT (Merits)   Art 1 P1 • Peaceful enjoyment of possessions • Seizure and confiscation of the applicants’ assets, of a value equivalent to the proceeds from offences committed by their family members, on the basis that they were at the offenders’ disposal • Art   1 P1 applicable • Domestic courts’ failure to show in a reasonable manner and on the basis of objective elements that the first two applicants were sham owners of the confiscated assets and that these belonged, in reality, to the offenders • Conversely, domestic courts investigated the behaviour of the third and fourth applicants and of the offenders in relation to the assets at issue and pointed at specific elements indicating that they were at the offenders’ disposal Art 6 § 1 (civil) • Access to court • Third applicant afforded reasonable and sufficient opportunity to adequately challenge the confiscation measure in the enforcement proceedings considered sufficient for the protection of her civil rights • No indication of arbitrariness or manifest unreasonableness Art 7 • Ratione materiae • Confiscation by equivalent means not amounting to a penalty towards family members considered as sham owners • Provisional seizure not amounting to a penalty • Application of principles set out in G.I.E.M. S.r.l. and Others v.   Italy [GC]   Prepared by the Registry. Does not bind the Court.   STRASBOURG 23 October 2025   FINAL   23/01/2026   This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of Tartamella and Others v. Italy, The European Court of Human Rights (First Section), sitting as a Chamber composed of:   Ivana Jelić , President ,   Erik Wennerström,   Gilberto Felici,   Raffaele Sabato,   Frédéric Krenc,   Alain Chablais,   Artūrs Kučs , judges , and Ilse Freiwirth, Section Registrar, Having regard to: the applications (nos.   26338/19, 1823/21 and 12868/22) against the Italian Republic lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by the applicants listed in the appended table (“the applicants”),   on the various dates indicated therein; the decision to give notice to the Italian Government (“the Government”) of the complaints raised under Article 6 § 1 and Article 7 of the Convention and Article 1 of Protocol No. 1 to the Convention and to declare inadmissible the remainder of the applications; the decisions by the Governments of Romania and Hungary not to exercise their right to intervene in the proceedings in accordance with   Article 36   §   1 of the Convention and Rule 44   § 1   of the Rules of Court; the parties’ observations; Having deliberated in private on 30 September 2025, Delivers the following judgment, which was adopted on that date: INTRODUCTION 1.     The case concerns the confiscation of assets belonging to the applicants, the value of which was deemed to be equivalent to the proceeds ( profitto ) from offences committed by their family members. The confiscation was based on the finding that, even though the applicants were the formal owners of the confiscated assets, those assets were at the disposal ( disponibilità ) of the offenders. THE FACTS 2.     The applicants’ personal details and the names of their representatives are set out in the appended table. 3.     The Government were represented by their Agent, Mr L. D’Ascia. 4.     The facts of the case may be summarised as follows. Application n o . 26338/19 5 .     Ms F. Tartamella and Ms B. Tartamella (“the first two applicants”) were the owners of several buildings and land located in the municipalities of Brescia, Perugia, Erice and Valderice. The building (and surrounding land) that was located in Valderice had been purchased in 2002 for a price of 150,000   euros   (EUR). 6.     In 2008, a criminal investigation was opened in respect of the first two applicants’ father, F.P.T., for failure to submit a tax return (pursuant to Article   5 of Legislative Decree no. 74 of 2000), fraud and bankruptcy fraud. 7 .     In the course of the proceedings against F.P.T., on 7   November 2011 the Brescia preliminary investigations judge ordered the seizure of the first two applicants’ assets, with a view to the confiscation of an amount equivalent to the proceeds arising from the offence, pursuant to section   1   §   143 of Law no. 244 of 2007. The seizure was based on the finding that the registration of the assets in the names of the first two applicants had been fictitious, and that F.P.T. had used his daughters as sham owners in order to prevent the seizure of those assets by his creditors. This conclusion rested on two elements: the applicants’ lack of funds to purchase the assets autonomously; and a witness statement according to which F.P.T. had claimed to own a building in Brescia through his daughters. 8.     The first two applicants asked for the revocation of the seizure order, arguing, inter alia , that they had acquired the seized assets by means of inheritance, gifts of money from their grandparents, and bank loans. 9 .     On 18 July 2012, the Brescia preliminary investigations judge ( giudice per le indagini preliminari ) revoked the seizure order in respect of the assets located in Erice and Brescia, noting that (i) some of them had been inherited by the first two applicants and, (ii) in respect of the rest of them, there was insufficient evidence to indicate that the declared ownership was merely a sham. However, the judge confirmed the seizure of the assets in Perugia and Valderice on the basis of his view that the first two applicants could not have purchased them with their own funds, and in the light of their close family ties with F.P.T. 10.     The first two applicants lodged an appeal against the decision of the Brescia preliminary investigations judge, requesting the revocation of the seizure order also in respect of the remaining assets. On 5   September 2012, the Brescia District Court noted that, in the meantime, those assets had been confiscated (see paragraph 11 below) and the seizure order was no longer in place; accordingly, it declared the appeal inadmissible. 11 .     On 18 July 2012 the Brescia preliminary hearing judge ( giudice dell’udienza preliminare ) convicted F.P.T. on all charges – including failure to submit a tax return. The proceeds derived from the non-payment of taxes were estimated at EUR   783,128. The Brescia preliminary hearing judge confiscated those of the first two applicants’ assets that were located in Valderice and Perugia. The judge deemed that, despite their formal ownership, those assets were in fact at the disposal of F.P.T. (as indicated by the first two applicants’ lack of funds and by their close family ties with F.P.T.). 12 .     F.P.T. appealed against his conviction, and also against the confiscation. On 8 March 2013, the Brescia Court of Appeal upheld the conviction, estimating the proceeds of the offence at EUR 705,044. It further upheld the confiscation of the Perugia and Valderice assets, but reduced the specification of the value of the assets to be confiscated (namely, to a value of EUR   639,044 in respect of the Valderice assets and to a value of 46,000 in respect of the remaining assets). As regards the above-noted assertion that the assets had de facto been at the disposal of F.P.T., the Court of Appeal cited the first two applicants’ lack of funds, their close family ties with F.P.T. and   –   in respect of the Perugia building – the fact that F.P.T. was domiciled there. 13.     F.P.T. appealed, but – by a judgment of 26 January 2015 – the Court of Cassation declared his appeal inadmissible for his lack of any interest in respect of the confiscation of the first two applicants’ assets, stating that the latter were at liberty to lodge a complaint with the enforcement judge. 14.     The first two applicants lodged a complaint with the Brescia Court of Appeal (acting as enforcement judge), seeking the return of the confiscated assets. They argued that they were the true owners of those assets and – with particular regard to the Valderice assets – submitted that they had purchased them with funds provided by their grandparents and obtained through a bank loan. 15 .     By a judgment of 22 September 2015, the Brescia Court of Appeal dismissed their claims. It examined, in particular, the applicants’ assertions regarding the provenance of the funds used to purchase the assets, concluding that they must have been provided by F.P.T. The Court of Appeal added that the investigation regarding F.P.T. had shown that, ever since 1993 (when he had been declared bankrupt) he had systematically resorted to registering the ownership of assets in the names of third parties (that is, sham owners). The Court of Appeal accordingly concluded that the confiscated assets – although formally owned by the first two applicants – had been at F.P.T.’s disposal, and confirmed their confiscation. 16 .     The first two applicants lodged an appeal ( opposizione ); on 1   July   2016, the Court of Appeal partially quashed that decision, revoking the order for confiscation of the Perugia assets, but upholding the confiscation of the Valderice assets. The decision focused mainly on the issue of the provenance of the funds in question, reiterating the previously advanced conclusions. 17 .     The first two applicants appealed to the Court of Cassation. The public prosecutor asked the court to allow their request for the revocation of the confiscation order, noting that the domestic courts had merely ascertained the applicants’ lack of sufficient funds to purchase the assets, whereas the confiscation of third parties’ assets required also evidence that the assets in question were at the disposal of the offender – that is to say the offender had a factual relationship with those assets and exercised the powers of an owner. In this respect, according to the prosecutor, the domestic decisions had not been sufficiently reasoned. 18 .     By a judgment published on 21 November 2018, the Court of Cassation noted that the first two applicants had always argued that they had purchased the assets with funds obtained from their grandparents and from a bank loan. Since the domestic courts had established that those arguments were unfounded, it was logical to conclude that the purchase of the assets had been the result of an agreement between F.P.T. and the first two applicants to register the assets in question in the name of the latter (as sham owners). The Court of Cassation therefore upheld the confiscation of the Valderice assets. Application n o . 1823/21 19.     Ms Koka (“the third applicant”) was the owner of a boat, purchased in her name in 2016 for EUR 41,000. 20.     On an unspecified date, a criminal investigation was opened in respect of her partner, S.Z., who was suspected of having engaged until 2015 in money laundering activities (Article 648 bis of the Criminal Code   –   hereinafter “the CC”). 21 .     In the course of the proceedings against S.Z., on 9 October 2017 the public prosecutor – estimating that the proceeds of the alleged crimes amounted to EUR 134,880.03 – ordered the seizure of the third applicant’s boat, with a view to its confiscation by equivalent means, pursuant to Article   648 quater of the CC. The seizure order was based on the finding that: (i) part of the price of the boat (EUR 11,000) had been paid directly by S.Z.; (ii) the third applicant’s own economic resources had been insufficient to cover the remaining part of the price; (iii) around the same period she had received other sums from S.Z. and had made unexplained deposits of cash into her bank account; (iv) some of the broker’s invoices had been paid by S.Z. in cash; and (v) according to the broker’s witness statements, S.Z. and the third applicant had together met her during the negotiation and conclusion of the purchase, but S.Z. had appeared to be the one making the decisions. On the basis of those considerations, the prosecutor deemed that the third applicant was not the genuine owner of the boat, and that S.Z. was its true owner. 22 .     The seizure was carried out on 11 October 2017 and validated by the Milan preliminary investigations judge on 12 October, citing the same reasoning as that presented by the prosecutor. 23 .     On 24 July 2018 the Milan preliminary investigations judge (Judge   A.C.), having approved a plea bargain, found that S.Z. had committed the offence of money laundering and ordered the confiscation of the seized boat. The judgment did not contain any further reasoning in respect of who the true owner of the boat was. 24 .     The third applicant lodged a complaint with the Milan preliminary investigations judge (acting as enforcement judge), seeking the return of the boat. She argued that she was the true owner of the boat, which she had paid for in part with a bank loan; she further submitted that S.Z. had gifted her the remaining sum of EUR   11,000 and that he had helped her with the relevant negotiations (which is not unusual in a couple), but that he had not exercised any of the prerogatives of an owner. 25 .     The prosecutor submitted the results of an investigation that had been conducted in respect of the third applicant’s financial situation: among its findings was the fact that the third applicant had already lodged an application with the Milan preliminary investigations judge, seeking the return of the seized assets; that application had been dismissed (the applicant had initially lodged an appeal against that dismissal but had subsequently withdrawn it). Additionally, the prosecutor clarified that S.Z. had agreed to, in his initial request for the above-mentioned plea-bargain, the confiscation of the boat. 26 .     On 18 January 2019 the Milan preliminary investigations judge (Judge A.C.) dismissed the third applicant’s request for the return of the boat, confirming that it had to be considered as being at S.Z.’s disposal. That conclusion was based on the same circumstances as those cited in the seizure order – that is to say the applicant’s lack of sufficient funds to purchase the boat, the payment of part of the price by S.Z., the circumstances regarding the involvement of S.Z. in the negotiations (as reported by the broker) and the payment of the broker’s invoice (see paragraph 22 above). Moreover, the judge noted that the third applicant’s income had been insufficient to pay for the maintenance and docking of the boat; the judge added that part of the docking fees had been paid by S.Z., and that S.Z. had agreed to the confiscation of the boat in his request for a plea bargain. 27 .     The third applicant lodged an appeal. On 19 April 2019, the Milan preliminary investigations judge (in the person of Judge A.C.) dismissed the complaint, reiterating that the third applicant had not had sufficient funds to pay for the boat and that, at the time of the purchase (which had coincided with the time of the commission of the crime), she had received money from S.Z. that had likely originated from his money laundering activities. 28 .     The third applicant appealed to the Court of Cassation. The latter, by a judgment issued on 7 July 2020, ruled that the boat had been correctly considered – on the basis of several concurring factors – to have been at the disposal of S.Z., and confirmed the confiscation. Application n o . 12868/22 29.     F.S., the husband of Ms Santorelli (“the fourth applicant”), was investigated in respect of his suspected membership of a criminal association (Article   416 of the CC) and unlawful adjustment payment ( compensazione ) – that is, claiming certain deductions against tax to which he had not been entitled (Article 10 quater of Legislative Decree no. 74 of 2000). 30 .     Within this context, on 15 November 2018 the Modena preliminary investigations judge ordered the seizure of assets belonging to F.S. up to the amount of EUR   23,408,052.32, with a view to their confiscation by equivalent means. 31 .     On 22 November 2018, the police entered an apartment (owned by F.S. but inhabited by the fourth applicant) and seized several items   –   including luxury clothing, accessories, watches, jewellery and gold. Some of those items (deemed to be women’s clothing and therefore at the fourth applicant’s exclusive disposal) were subsequently returned to her; however, the police retained possession of several watches, jewellery and gold that had been seized. On 5 December 2018, the Modena District Court further ordered the seizure of an apartment owned by the fourth applicant in the town of Castelfranco Emilia. 32 .     On 12 May 2020, the Modena preliminary hearing judge convicted F.S. on all charges and ordered the confiscation of the seized assets, pursuant to Article 12 bis of Legislative Decree no. 74 of 2000 and Article 322- ter of the CC. F.S. lodged an appeal against both his conviction and the confiscation of the fourth applicant’s assets; according to the most recent information submitted to the Court, proceedings are still pending before the Bologna Court of Appeal. 33 .     The fourth applicant lodged an application for the return of her assets, arguing that they had been at her exclusive disposal and that she had either bought them herself or had received them from F.S. as a gift. 34 .     On 12 October 2020, the Modena preliminary investigations judge dismissed her application. He considered, in particular, that the jewellery and the watches must have been purchased by F.S. (since the fourth applicant had had limited resources); the judge further deemed that the question of whether or not she had ever used them was irrelevant, since they were assets bought as a form of investment. 35 .     The fourth applicant appealed. On 1 December 2020, the Modena District Court, acting as a review court ( tribunale del riesame ), upheld the decision to seize the fourth applicant’s assets, noting that: (i) all of her income derived from the companies involved in F.S.’s criminal activities; (ii) she had been fully aware of the fictitious registration of certain assets in her name (as   indicated by the content of certain telephone conversations intercepted in the course of the criminal proceedings in which she had allowed F.S. to register assets in her name); (iii) the apartment had been purchased by F.S. (as demonstrated by the fact that it had been he who had concluded the preliminary contract); (iv) the seller had been involved in criminal conduct and had never cashed the cheque issued by the fourth applicant as payment for the apartment; and (v) the apartment had been at the disposal of F.S., since it was currently empty and the keys were being held by one of F.S.’s business partners. Additionally, it had emerged from the telephone intercepts that the fourth applicant and F.S. had not truly been separated at the time in question, and that prior to the above-mentioned seizure of assets, F.S. had been able to access and use the assets seized from the family home. 36.     The fourth applicant appealed to the Court of Cassation, which dismissed her appeal by a judgment published on 6 September 2021. RELEVANT LEGAL FRAMEWORK AND PRACTICE RELEVANT DOMESTIC LAW AND PRACTICE Provisions on confiscation and seizure 37 .     Article 240 of the CC, which forms part of a chapter dedicated to “property security measures” ( misure di sicurezza patrimoniali ), provides in its relevant parts a direct form of confiscation. The provision reads as follows: “1. In the event of conviction, the judge may order the confiscation of things that were used or intended to be used in the commission of the offence [in question], and of the things that constitute the product thereof or proceeds therefrom. 2. [The judge shall] always order the confiscation: 1) of things that constitute the price of the offence; 1-bis) ... 2) of things whose manufacturing, use, harbouring, possession or sale constitutes an offence – even if no conviction has been imposed. ...” 38 .     Article 322 ter of the CC – introduced by Law no. 300 of 2000 and subsequently amended by Law no. 190 of 2012 – provides mandatory confiscation in respect of certain crimes. Such confiscation must be carried out, whenever possible, in respect of the direct proceeds from or price of such crimes (“direct confiscation”); in the alternative, it must be carried out in respect of assets of equivalent value (“value confiscation” or “confiscation by equivalent means”). The provision currently reads as follows: “1. In the event of conviction or of an [agreement to reach a] plea bargain at the request of the parties, pursuant to Article 444 of the Code of Criminal Procedure, in respect of one of the offences provided by Articles 314 to 320 ..., [the judge] shall always order the confiscation of the goods constituting the proceeds from or price of the offences, unless they belong to a third party who has not taken part in the commission of the offence, or, when this is not possible, the confiscation of goods at the disposal of the offender of a value corresponding to such price or proceeds. 2. In the event of conviction or of an [agreement to reach a] plea bargain at the request of the parties pursuant to Article 444 of the Code of Criminal Procedure in respect of the offence provided by Article 321 ..., [the judge] shall always order the confiscation of goods constituting the proceeds from the offence, unless they belong to a third party who has not taken part in the commission of the offence or, when this is not possible, the confiscation of goods at the disposal of the offender to a value corresponding to such proceeds... 3. In the cases provided in paragraphs 1 and 2, the judge – in delivering the judgment of conviction – shall determine the amount of money or identify the goods to be confiscated in so far as they constitute the proceeds from or price of the offence or their value corresponds to the proceeds from or price of the offence.” 39 .     Since its entry into force the application of this provision has subsequently been extended to other crimes. In so far as is relevant for the present case, section 1 § 143 of Law no. 244 of 2007 (the 2008 Finance Act) established that Article 322 ter of the CC would thenceforth also apply in respect of the offences of failure to submit a tax return and unlawful adjustment payment, provided respectively by Articles 5 and 10 quater of Legislative Decree no. 74 of 2000. 40 .     Until the amendments introduced by Law no. 190 of 2012 (see paragraph 38 above), the first paragraph of Article 322 ter of the CC referred only to a value corresponding to the price (and not to the proceeds realised) in respect of offences falling under that paragraph; however, the Court of Cassation did clarify (before those amendments came into effect) that the reference contained in section 1 § 243 of Law no. 244 of 2007 should be interpreted as referring to Article 322 ter of the CC in its entirety – thus extending also to the proceeds derived from crime (see, for instance, judgments of the Court of Cassation no.   35807 of 2010 and no.   23108 of 2013). 41 .     Under Legislative Decree no. 158 of 2015, section 1 §   143 of Law   no.   244 of 2007 was replaced by a substantially similar one, which is now contained in Article 12 bis of Legislative Decree no. 74 of 2000. 42 .     A provision on mandatory confiscation in respect of the crime of money laundering was introduced by Legislative Decree no. 231 of 2007 under Article 648 quater of the CC, which reads as follows: “1. In the event of conviction or of an [agreement to reach a] plea bargain at the request of the parties, pursuant to Article 444 of the Code of Criminal Procedure in respect of one of the offences provided by Articles 648 bis ... , [the judge] shall always order the confiscation of the goods constituting the product of or proceeds from the offences, unless they belong to a third party who has not taken part in the commission of the offence. 2. If it is not possible to proceed to confiscation as provided under the first paragraph, the judge shall order the confiscation of sums of money, goods or other assets at the disposal of the offender – including through an intermediary [ per interposta persona ], for a value corresponding to the product of, proceeds from or price of the offences.” 43 .     Article 321 of the Code of Criminal Procedure (“CCP”) provides for the seizure of assets that are liable to confiscation. The provision is included in a chapter of the CCP dedicated to “property precautionary measures” ( misure cautelari reali ). Under the same provision, such a seizure may be ordered by the judge before whom the related criminal proceedings are currently pending; in the event of particular urgency, a seizure may be ordered by the public prosecutor or carried out directly by the police, subject to subsequent validation by the judge. Nature and purpose of confiscation under domestic law 44 .     The domestic legal order distinguishes between penalties and security measures. In principle, penalties are aimed at sanctioning an offence that has been committed, whereas security measures are aimed at preventing the commission of a further offence. 45.     Unlike Article 240 of the CC (see paragraph 37 above), the provisions subsequently introduced at Article   322 ter and Article 648 quater of the CC do not explicitly state whether the form of confiscation provided by those provisions constitutes a penalty or a security measure. 46 .     Until recently, the established case-law of both the Constitutional Court and the Court of Cassation held that confiscation by equivalent means was predominantly afflictive in nature and therefore had to be considered as constituting a punitive measure. That case-law rested (on the one hand) on the fact that assets were not confiscated because they are inherently dangerous, and (on the other hand) on the lack of any link ( nesso di pertinenzialità ) between the confiscated assets and the crime in question. It follows that the main purpose of confiscation by equivalent means is to restore the previously prevailing economic situation by imposing a corresponding sacrifice on the offender (see, among other authorities: judgments of the Constitutional Court nos. 97 of 2009, 301 of 2009 and 68 of 2017; judgments of the Court of Cassation nos. 15445 of 2004 and 39173 of 2008; and judgment of the Combined Divisions of the Court of Cassation no.   31617 of 2015). 47 .     The Combined Divisions of the Court of Cassation, by judgment no.   4145 of 2023, added that confiscation by equivalent means had a dual nature: by imposing on the offender an economic sacrifice that was equal to the proceeds that he or she had realised from the crime, confiscation served both a restorative and a punitive function. However, deeming that penalties were subject to the stricter rules provided by Article 25 of the Italian Constitution and by Article 7 of the Convention, judgment no. 4145 stated that the punitive nature of confiscation should prevail over all other non ‑ criminal functions. 48.     However, the most recent case-law called into question this approach (which rested on the different natures of direct confiscation and value confiscation). The Constitutional Court, by judgments nos. 112 of 2019 and 7 of 2025, did not draw a distinction between direct confiscation and value confiscation; rather, it stated that the confiscation of the “proceeds” deriving from the offence had a purely restorative function, whereas the confiscation of its “product” or of the assets used in the commission of the crime had a punitive connotation, because it was not limited to restoring the economic situation that had been in place before the commission of the crime, but instead deprived the offender of additional assets. The recent judgment of the Combined Divisions of the Court of Cassation no. 13783 of 2025 confirmed this approach: it clarified that direct confiscation and value confiscation constituted two ways of enforcing the same measure and that they were of the same nature – that is, they constituted a merely restorative measure if they were limited to the proceeds derived from the crime in question, whereas they acquired a punitive connotation where they exceeded such proceeds. The confiscation of assets formally owned by third parties 49 .     Assets belonging to a third party who has not taken part in the commission of an offence may not, as a rule, be subject to confiscation. Nevertheless, the confiscation of third parties’ assets by equivalent means is possible if such assets, although formally owned by others, are found to be at the disposal of the offender (see paragraphs 38 and 42 above). 50 .     The Court of Cassation has clarified that, in such situations, the confiscation measure in question is not directed at the third party, but at the offender. The third party is affected only indirectly because – regardless of who the formal owner is – the asset in question is de facto at the disposal of the offender (see judgments nos. 34602 of 2021, 4887 of 2019 and 4297 of 2013). 51 .     The relevant case-law of the Court of Cassation defines the notion of “disposal” as follows: “The [notion of] ‘disposal’ of an asset ... does not coincide with the civil-law notion of ownership, but with that of possession, which encompasses all those situations in which the asset falls within the sphere of the offender’s economic interests – even if the power of disposal over it is exercised through third parties – and is expressed in the exercise of de facto powers corresponding to the right of ownership ...” (Judgment no. 4456 of 2022; see, similarly, judgments nos. 4887 of 2019, 36530 of 2015, 18766 of 2014, 22153 of 2013, and 11732 of 2005). 52 .     The relevant domestic case-law further stipulates that the fact that the assets in question are at the offender’s disposal has to be established in a rigorous manner and on the basis of specific elements (and not of mere suspicions). In particular, it is not sufficient to establish the “negative element” that the formal owner did not have the financial resources to purchase certain assets; there has to be evidence of the “positive element” that the assets remain de facto at the disposal of the offender. The burden of proof, in this respect, is placed upon the prosecution (see Court of Cassation judgments nos. 34602 of 2021, 4487 of 2019, 35771 of 2017, 36530 of 2015, 22153 of 2013, and 17287 of 2011). 53 .     The Government have submitted examples of case-law concerning instances when the assets in question were found, respectively, to have been at the offender’s disposal on the basis of the following elements: the money in question had been deposited in a bank account to which the offender had had unlimited access (judgment of the Court of Cassation no. 13130 of 2020); the offender had assigned the asset in question to a trust that he himself had administered (judgment no. 13276 of 2011); and the assets in question had been jointly owned by the offender and by a third party (judgment no.   6894 of 2011). 54 .     The Court of Cassation has also clarified that, if an asset has been gifted by an offender to a third party, confiscation cannot be justified by the simple fact that the asset was transferred by the offender with the purpose of hiding it from State authorities; the domestic courts have to ascertain whether it is still de facto at the disposal of the offender (judgment no. 4456 of 2022). Remedies available to third parties 55 .     Under Article 322 of the CPP, third parties claiming to be the owners of seized assets may contest a seizure order issued by a judge by lodging an application for a review ( richiesta di riesame ) within ten days of its enforcement. They may also lodge an application requesting the return of seized assets (Article   321, paragraph 3, of the CCP). Against a decision dismissing such an application (or against any other decision concerning the seizure of the assets in question) they may lodge an appeal under Article 322- bis of the CCP ( appello cautelare ). In the case of both an application for a review and an appeal, proceedings take place before the district court of the capital of the province (sitting as a collegial bench and acting as a review court – tribunale del riesame ) in which the court that issued the decision is located. Proceedings before a review court are held in camera (Articles 324 § 6 and 310 §   2 of the CCP). Its decisions may be appealed against before the Court of Cassation (Article   325 of the CCP). 56 .     Third parties claiming to be the owners of assets that have been confiscated in the course of criminal proceedings are not entitled to appeal against a judgment delivered by the criminal court. They may, however, lodge an application with the enforcement judge, seeking the return of such assets (Article   676 of the CCP). In such cases, the enforcement judge – the same body as that which ordered the confiscation in the criminal proceedings (Article   665 of the CCP) – issues a decision without having to observe any formal procedures (Article 667 § 4 of the CCP). The decision of the enforcement judge may be contested in adversarial proceedings before the same judge (Articles 666 and 667 § 4 of the CCP). In the course of enforcement proceedings, the judge may ask public authorities for additional information and may admit fresh evidence at an adversarial hearing (Article 666, paragraph 5, of the CCP). Proceedings before the enforcement judge are held in camera (Articles   666   § 3 and 667 § 4 of the CCP). However, by judgment no.   109 of 2015, the Constitutional Court ruled those provisions unconstitutional in so far as they did not allow a party with an interest in proceedings against confiscation to request a public hearing. A decision of an enforcement judge may be appealed against before the Court of Cassation (Article 666, paragraph 6, of the CCP). 57 .     By judgment no. 48126 of 2017, the Combined Divisions of the Court of Cassation clarified the role of those remedies within the context of the protection of the interests of third-party owners of seized and confiscated assets. Under that judgment (which put an end to previous uncertainties), third-party owners may file an appeal to the review court according to Article   322- bis of the CCP (see paragraph 55 above) even after confiscation has been ordered, as long as that order has not become final. In fact, until that moment, the dispossession of the assets takes place on the basis of the seizure order and not of the confiscation order, which will not be enforced until it becomes final. After a final decision has been issued, third-party owners may lodge an application with an enforcement judge, seeking the return of such assets (see paragraph 56 above). 58 .     By judgment no. 253 of 2017, the Constitutional Court ruled that the combination of remedies described above ensured the protection of third ‑ party owners during the entire course of proceedings. 59 .     As to the scope of the above-detailed remedies, according to well ‑ established domestic case-law, it is limited to the question of whether the third parties are the true owners of the relevant assets and whether they were involved in the crime in question; if their claims are allowed, this shall be sufficient to secure the revocation of the confiscation and the return of the assets in question. Third parties may not otherwise call into question other grounds for the seizure or the confiscation order, such as the offender’s criminal liability or the possibility to order direct confiscation instead of confiscation by equivalent means (see, for instance, judgments of the Court of Cassation nos. 17287 of 2011, 34704 of 2016, 36347 of 2019, and 13706 of 2022). INTERNATIONAL LAW 60.     Several international agreements provide for the confiscation of the proceeds of crime or of property of equivalent value following a criminal conviction. The origins of such an approach may be traced to the 1988 United Nations Convention against Illicit Traffic in Narcotic Drugs and Psychotropic Substances Article 5 of which provided for – in addition to the more traditional confiscation of instruments used in the commission of such an offence ( instrumentum sceleris ) – the confiscation of the proceeds of drug ‑ related offences ( productum sceleris ) or property of equivalent value. The provision established that the rights of bona fide third parties should not be prejudiced. Over time, the provisions on confiscation were broadened to encompass cross-border crime, organised crime and other serious offences (for instance, under: Article 3 of the 1997 Convention on Combating Bribery of Foreign Public Officials in International Business Transactions; Article 8 of the 1999 International Convention for the Suppression of the Financing of Terrorism; and Article 12 of the 2000 United Nations Convention against Transnational Organised Crime). Most of those provisions stated that they should be implemented without prejudice to the rights of third parties acting in good faith. 61.     By acceding to the Council of Europe Convention on Laundering, Search, Seizure and Confiscation of the Proceeds from Crime (the “Strasbourg Convention”) – which was opened for signature on 8   November   1990 in Strasbourg and which entered into force on 1   September   1993 – the signatory parties undertook to: adopt measures that would enable them to confiscate the instrumentalities and the proceeds of crimes (or property of equivalent value; adopt legislation establishing as an offence the laundering of proceeds of crime; and cooperate in the enforcement of such measures. The Strasbourg Convention allowed States parties thereto to limit its application to selected offences and to refuse cooperation in a large number of cases   –   including when the confiscation sought did not “relate to a previous conviction, or a decision of a judicial nature or a statement in such a decision that an offence or several offences have been committed”, or where the third parties had not had an adequate opportunity to assert their rights. 62.     Article 31 of the 2003 United Nations Convention against Corruption provided for the confiscation of the instrumentalities or proceeds of crime (or   property of equivalent value) without prejudice to the rights of bona fide third parties. The Convention also provided for a form of non-   conviction-   based confiscation: under Article 54 § 1 (c) it provided that parties should “consider taking such measures as may be necessary to allow confiscation of such property without a criminal conviction in cases in which the offender cannot be prosecuted by reason of death, flight or absence or in other appropriate cases”. 63.     The Council of Europe Convention on Laundering, Search, Seizure and Confiscation of the Proceeds from Crime and on the Financing of Terrorism, which was opened for signature on 16 May 2005 in Warsaw and which entered into force on 1 May 2008 (“the Warsaw Convention”), was intended to supersede the Strasbourg Convention but was not ratified by all member States of the Council of Europe. Although containing substantially similar undertakings in respect of the confiscation of proceeds of crimes, it added under Article 23 § 5 the provision that States were required to cooperate with each other on the execution of measures equivalent to confiscation that did not constitute criminal sanctions, in so far as they were ordered to do so by a judicial authority in relation to a criminal offence. 64 .     Additionally, some international organisations have produced good practice guides and recommendations regarding non-conviction-based confiscation, such as a 2004 publication entitled “G8 Best Practice Principles on Tracing, Freezing and Confiscation of Assets”, the 2009 World Bank publication entitled “Stolen Asset Recovery: A Good Practices Guide for Non-Conviction-Based Asset Forfeiture” and the OECD’s Financial Action Task Force Recommendations entitled “International Standards on Combating Money Laundering and the Financing of Terrorism and Prol