JUDGMENT NO. 166

YEAR 2025

ITALIAN REPUBLIC

IN THE NAME OF THE ITALIAN PEOPLE

THE CONSTITUTIONAL COURT

composed of:

President: Giovanni AMOROSO;

Judges: Francesco VIGANÒ, Luca ANTONINI, Stefano PETITTI, Angelo BUSCEMA, Emanuela NAVARRETTA, Maria Rosaria SAN GIORGIO, Filippo PATRONI GRIFFI, Marco D’ALBERTI, Giovanni PITRUZZELLA, Antonella SCIARRONE ALIBRANDI, Massimo LUCIANI, Maria Alessandra SANDULLI, Roberto Nicola CASSINELLI, Francesco Saverio MARINI,

has pronounced the following

JUDGMENT

in the constitutional legitimacy proceedings concerning Article 85-bis of Presidential Decree No. 309 of October 9, 1990 (Consolidated Text of Laws on the regulation of narcotic drugs and psychotropic substances, prevention, treatment, and rehabilitation of related drug addiction states), as amended by Article 4, paragraph 3-bis, of Decree-Law No. 123 of September 15, 2023 (Urgent measures to combat youth distress, educational poverty, and juvenile delinquency, as well as for the safety of minors in the digital sphere), converted, with amendments, into Law No. 159 of November 13, 2023, initiated by the Ordinary Court of Florence, First Penal Section, with orders of September 30, 2024, and April 14, 2025, respectively registered under numbers 203 of the register of ordinary orders 2024 and 95 of the register of ordinary orders 2025 and published in the Official Gazette of the Republic, first special series, numbers 46 of 2024 and 22 of 2025.

Having seen the intervention acts of the President of the Council of Ministers;

having heard in the private session of September 22, 2025, the Reporting Judge Francesco VIGANÒ;

deliberated in the private session of September 22, 2025.

Facts Considered

1.– With order of September 30, 2024, registered under no. 203 of the ordinary register of 2024, the Ordinary Court of Florence, First Penal Section, raised, with reference to Articles 3 and 42 of the Constitution, questions of constitutional legitimacy regarding Article 85-bis of Presidential Decree No. 309 of October 9, 1990 (Consolidated Text of Laws on the regulation of narcotic drugs and psychotropic substances, prevention, treatment, and rehabilitation of related drug addiction states), as amended by Article 4, paragraph 3-bis, of Decree-Law No. 123 of September 15, 2023 (Urgent measures to combat youth distress, educational poverty, and juvenile delinquency, as well as for the safety of minors in the digital sphere), converted, with amendments, into Law No. 159 of November 13, 2023, also in conjunction with Article 240-bis of the Penal Code.

The aforementioned Article 85-bis of the Consolidated Text on Drugs – which stipulates that "[i]n cases of conviction or application of the negotiated plea pursuant to Article 444 of the Code of Criminal Procedure, for one of the offenses provided for in Article 73, Article 240-bis of the Penal Code shall apply” – is challenged "insofar as it does not exclude from its scope the hypotheses of conviction or application of the negotiated plea for the offense under Article 73, paragraph 5 of Presidential Decree 309/1990.”

Alternatively, the provision is challenged "insofar as it does not limit its scope of application to the hypothesis under Article 73, paragraph 5, second period, Presidential Decree 309/1990, when the conduct assumes non-occasional characteristics, with regard to the offense under Article 73, paragraph 5 of Presidential Decree 309/1990.”

Further in the alternative, the referring judge doubts the constitutional legitimacy of the same provision in conjunction with Article 240-bis of the Penal Code "insofar as, with regard to the hypothesis of conviction or application of the penalty for the offense under Article 73, paragraph 5 of Presidential Decree 309/1990, it provides for the mandatory confiscation of money, assets, or other utilities of which the convicted person cannot justify the origin and of which, even through an interposed natural or legal person, they are found to be the owner or have availability in any capacity, in an amount disproportionate to their income, declared for income tax purposes, or to their economic activity, rather than providing that the judge may order the aforementioned confiscation.”

1.1.– The referring judge reports that he must ascertain, in a summary trial, the criminal responsibility of A. E., accused of the offense under Article 73, paragraph 5, of the Consolidated Text on Drugs, for having been found in possession of a dose of cocaine weighing 0.20 grams and six pieces of hashish weighing a total of approximately 57 grams. He adds that, following a search, cash amounting to 3,050 euros, a switchblade knife, rolls of tape and cellophane, as well as two precision scales, were seized from the accused.

The referring judge deems the accused’s responsibility for the alleged offense proven, noting in particular that the detention of the narcotic substances was (also) aimed at trafficking. Taking into account the modest quantity, he also shares the classification of the act under paragraph 5 of Article 73 of the Consolidated Text on Drugs, as the "aggravating circumstance,” provided for by the same provision and applicable to non-occasional conduct, is neither present nor contested in this case, since there are no "elements to prove that the accused has carried out analogous criminal acts.”

Due to the amendment to Article 85-bis of the Consolidated Text on Drugs made by the conversion law of Decree-Law No. 123 of 2023, which extends the applicability of Article 240-bis of the Penal Code to the offense of "minor trafficking” under Article 73, paragraph 5, of the Consolidated Text on Drugs, the so-called "extended” confiscation of the seized money must be mandatorily ordered.

Indeed, the accused allegedly provided no justification for the origin of the cash he was found to possess. Furthermore, the sum is reportedly disproportionate to his income, the accused being "irregular in Italian territory” and "lacking employment or any economic activity.” Finally, no elements were reportedly introduced to suggest that the money was acquired by him in a period "excessively antecedent” to the date of commission of the crime, meaning the "so-called requirement of temporal reasonableness” also exists.

The a quo judge observes, on this point, that, according to the case law of the Court of Cassation, the modest amount of money to be confiscated does not, in itself, constitute an obstacle to the application of the confiscation measure (citing Court of Cassation, Fourth Penal Section, Judgment of March 22–May 13, 2024, No. 18608). Nor do the further conditions outlined by this Court in Judgment No. 33 of 2018, under which the judge retains the option not to order the extended confiscation, apply here. In fact, in the present case, no "elements emerge that characterize the criminal matter under examination as entirely episodic and occasional and outside the model that grounds the presumption of illicit accumulation” are present. Given that precision scales and packaging materials were found in the accused’s possession, it is plausible that he has already engaged in other similar crimes.

If the raised questions were accepted, the seized sum could not be confiscated in any case, as the ordinary rules for the confiscation of the proceeds or profit of the crime under Articles 240 and 73, paragraph 7-bis, of the Consolidated Text on Drugs could not apply – in particular – since there is no proof of the "nexus of pertinence, in terms of instrumentality or derivation […] of the sum of money in question with respect to the specific illicit conduct contested.”

Hence the relevance of the questions.

1.2.– As for the non-manifest groundlessness of the questions raised as primary grounds, the referring judge first recalls extensive passages from this Court's Judgment No. 33 of 2018, emphasizing that the legislator, in his opinion, disregarded its final warning, which stressed the "need for the list of predicate offenses [for extended confiscation] to be based on types and modes of acts inherently symptomatic of an illicit enrichment of their author, transcending the single judicially ascertained case, so as to truly attribute the "disproportionate” and "unjustified” assets held by the agent to further criminal activity that remained "hidden.””

The referring judge then recalls Judgment No. 223 of 2022, in which this Court declared the unconstitutionality of the presumption of exceeding the maximum income threshold set for admission to free legal aid by those convicted of the offense under Article 73, paragraph 5, of the Consolidated Text on Drugs. That ruling reportedly infers, in particular, that a conviction for the aforementioned offense "does not legitimize the presumption (even a relative one) of wealth accumulation by its author.”

In the case under examination, the contested mandatory nature of the extended confiscation is allegedly based on the premise that the offense under Article 73, paragraph 5, of the Consolidated Text on Drugs "is capable of creating an economic accumulation, such as to justify […] the (relative) presumption of illicit origin of money and assets disproportionate to the income of which the accused has failed to justify the origin.” Such a premise is reportedly not consistent with reality, since – as highlighted by the cited Judgment No. 223 of 2022 – the offense in question is reportedly not characterized by particular profitability, being instead "often […] committed by ‘low-level labor’ lacking significant economic means.”

In fact, the referring judge observes, "those who commit such crimes often belong to ‘marginal brackets’ of the non-affluent, operating outside habitual and, in any case, official channels, and therefore in an untraceable manner, even if they do not commit crimes.” The a quo judge thus identifies the risk that, in cases such as the one under examination – where the accused was irregularly residing in Italian territory, and was therefore "lacking registration, regular employment, bank accounts or other financial instruments, access to bank credit” – the sums found in the possession of the offender are always deemed disproportionate, and the possible justifications for their legitimate origin always insufficient, as they can never rise to the level of "specific and verified allegations,” as required by the case law of the Court of Cassation to overcome the legislative presumption (citing again Cass., No. 18608 of 2024).

The referring judge then dwells on the preparatory work concerning the amendment of Article 85-bis of the Consolidated Text on Drugs, carried out during the conversion of Decree-Law No. 123 of 2023: work from which no explicit statement of the reasons for extending the extended confiscation to the offense in question emerges. The reason for the intervention should plausibly be found – also in light of the tightening of the sanctioning treatment for this offense, simultaneously ordered – in the legislator's intention to "more severely punish drug trafficking, even when the individual act is of a minor nature.” However, the use of the institute for punitive purposes is reportedly inconsistent with its nature and prerequisites, as it is "a patrimonial security measure of a non-sanctioning nature that presupposes the suitability of the underlying crimes to create an economic accumulation, in turn a possible instrument for further crimes.”

All these considerations support the challenges raised with reference to the principle of reasonableness under Article 3 of the Constitution, as well as the right to property under Article 42 of the Constitution.

Furthermore, Article 3 of the Constitution is reportedly violated also with regard to the principle of equality, under the aspect of unreasonable disparity of treatment compared to the offense provided for in Article 74, paragraph 6, of the Consolidated Text on Drugs, for which extended confiscation is reportedly not provided (citing Court of Cassation, Sixth Penal Section, Judgment of January 11–February 12, 2024, No. 6247, and Third Penal Section, Judgment of June 11, 2015–July 6, 2016, No. 27770). In particular, the disparity of treatment between those convicted of the offense of criminal conspiracy aimed at committing acts of "minor trafficking” and those convicted of committing these same offenses appears unreasonable. In fact, "if the prerequisite for extended confiscation is the suitability of the ascertained offense to determine an accumulation of wealth […] this certainly applies more to the conspiracy (established to carry out an indefinite series of crimes and normally characterized by the reuse of illicit proceeds to commit new criminal activities) than to the single offense” under Article 73, paragraph 5, of the Consolidated Text on Drugs. This is even more true "when considering that not even the promoters/founders/organizers of the conspiracy are subject to extended confiscation.”

1.3.– Alternatively, the referring judge asks this Court to limit the extended confiscation to the hypothesis – configured, following the amendments made to Article 73, paragraph 5, of the Consolidated Text on Drugs by Article 4, paragraph 3, of the same Decree-Law No. 123 of 2023, as converted, as an aggravating circumstance – in which the conduct exhibits non-occasional characteristics.

If this Court were to intervene to this effect – the referring judge notes – "for the extended confiscation to apply, at least the ascertainment (concurrently or within previous judgments) of the commission of further analogous crimes would be necessary.” Thus, in that case, "even though the profitability of the crime is minimal, in the presence of a plurality of analogous crimes (at a close temporal distance from one another) the presumption of illicit accumulation of wealth would be less unreasonable.”

1.4.– In a further alternative, the referring judge hopes for a declaration of unconstitutionality that makes the extended confiscation optional, rather than mandatory, with regard to the offense under Article 73, paragraph 5, of the Consolidated Text on Drugs, in order to allow the judge to "verify, in light of all the concrete circumstances (quantity and type of substances, manner of detention, any profit obtained, lifestyle of the accused, any prior convictions, amount of assets found, etc.), whether the presumption underlying the institute is justified in the specific concrete case.” According to the a quo judge, the mandatory nature of the extended confiscation would be justified in the case of crimes of organized crime, or in any case characterized by high profitability, as in those cases the presumption of illicit accumulation of wealth by the convicted person responds to what most frequently happens. Conversely, for an offense – such as the one under discussion – normally characterized by modest profitability, it would be easy to formulate hypotheses in which the legislative presumption is not borne out: which would make it reasonable to entrust the application or non-application of the measure to the judge's assessment, based on the circumstances of the concrete case.

2.– The President of the Council of Ministers intervened in the proceedings, represented and defended by the State Attorney General’s Office, requesting that the questions be declared inadmissible or, in any case, unfounded.

2.1.– The State Attorney General’s Office first raises the inadmissibility of the questions.

2.1.1.– Firstly, regarding relevance, the State Attorney General’s Office holds that there are no "unambiguous elements” clarifying the reasons why the judge should be required to order the "extended” confiscation measure in the a quo proceedings, rather than excluding its operation in light of the indications provided by this Court in Judgment No. 33 of 2018. The referral order is reportedly contradictory, in particular, regarding the non-occasional nature of the accused's conduct, "whereas the referring judge states, on the one hand, the absence of elements to deem the conduct non-occasional […] and, on the other hand, the lack of elements to deem the conduct occasional.”

2.1.2.– The petitum is then "not constitutionally mandatory,” having a "manipulative character […] but without the desired readjustment being the only way to remedy the alleged violation.”

2.1.3.– Furthermore, the questions raised as secondary grounds lack an autonomous illustration of the reasons for constitutional illegitimacy, for which, moreover, the arguments put forward to support the primary question cannot be referenced, since the latter aims to obtain a ruling of "partial interpretative acceptance,” while the questions raised as secondary grounds aim to obtain a substantive ruling.

2.1.4.– Furthermore, concerning the two questions raised as secondary grounds, the intervenor observes that "the outcome envisaged by the referring party in these two cases would not end the situation of heterogeneity outlined between the hypothesis of particular insignificance under Art. 73 para. V PD 309/1990 and the other offenses of particular insignificance to which extended confiscation does not apply, since a distinction would continue to exist represented by the conditional exclusion for the former and the non-application in toto for the latter, so that the petitum is incapable of eliminating the alleged constitutional violation.”

2.1.5.– Finally, the State Attorney General’s Office deems the questions raised with reference to Article 42 of the Constitution inadmissible, as this parameter is invoked in an assertive and generic manner, without any illustration of the reasons why a violation of the right to property would exist.

2.2.– In any case, the questions would be manifestly unfounded.

Firstly, in the opinion of the State Attorney General’s Office, the choice to include the hypothesis regulated by Article 73, paragraph 5, of the Consolidated Text on Drugs among the offenses for which the mandatory order of extended confiscation is provided falls within the discretion of the legislator, without leading to "manifest unreasonableness or arbitrariness.” In fact, such a security measure should be placed within the framework of modern forms of confiscation widespread at the European level to target assets of suspected illicit origin, in relation to offenses connected by organized crime or otherwise capable of producing economic advantage.

From this perspective, the intervenor emphasizes that so-called "minor trafficking” is, "by its nature, an offense still capable of determining […] an illicit accumulation of wealth and capable of being perpetrated in a continuous form.”

Hence the "full reasonableness” of the challenged provision, which cannot even be called into question due to a supposed disparity of treatment compared to the tertium comparationis invoked by the referring party, namely the offense of conspiracy aimed at committing acts of minor significance under Article 74, paragraph 6, of the Consolidated Text on Drugs. In fact, associative conduct could not, "in abstract,” produce any type of profit, unless the associative contribution is expressed through acts of complicity in the target offenses” (citing Court of Cassation, Second Penal Section, Judgment of September 20, 2019–February 13, 2020, No. 5730). In any case, the aforementioned associative offense would in any case fall within the catalog of offenses under Article 51, paragraph 3-bis, of the Code of Criminal Procedure, "so that the normative provision would not exclude it from the scope of application of confiscation for disproportion, since Article 240-bis of the Penal Code, in addition to listing certain typical hypotheses, makes a reference to this catalog without any exclusion,” so that the opposite conclusion drawn by the case law "would stem from an interpretation of the normative provision which, by its very nature, is subject to evolution over time and as such unsuitable to constitute a term of comparison.”

3.– With order of May 28, 2025, registered under no. 95 of the ordinary register of 2025, the same judge of the Ordinary Court of Florence, First Penal Section, raised questions of constitutional legitimacy of the same Article 85-bis of the Consolidated Text on Drugs, as amended by Article 4, paragraph 3-bis, of Decree-Law No. 123 of 2023, as converted.

Primarily, the referring judge challenges the provision, with reference to Articles 3 and 42 of the Constitution, "insofar as it does not exclude from its scope the hypotheses of conviction or application of the negotiated plea for the offense under Article 73, paragraph 5 of Presidential Decree 309/1990.”

Alternatively, the referring judge also doubts – with reference to Articles 42 and 117, first paragraph, of the Constitution, the latter in relation to Article 1 of the Additional Protocol to the European Convention on Human Rights – the constitutional legitimacy of the provision, in conjunction with Articles 200, first paragraph, 236, second paragraph, and 240-bis of the Penal Code, "insofar as it provides that the security measure of confiscation regulated thereby shall apply [to] the offenses under Article 73, paragraph 5 of Presidential Decree 309/1990 retroactively within the limits set by Article 200, paragraph 1 of the Penal Code, rather than providing that it shall not apply to the offenses under Article 73, paragraph 5 of Presidential Decree 309/1990 prior to the amendment of Article 85-bis of Presidential Decree 309/1990.”

In a further alternative, the referring judge raises questions of constitutional legitimacy – with reference to Articles 3 and 42 of the Constitution – "of Article 85-bis of Presidential Decree 309/1990 in conjunction with Article 240-bis of the Penal Code, insofar as, with regard to the hypothesis of conviction or application of the penalty for the offense [under] Article 73, paragraph 5 of Presidential Decree 309/1990, it provides that the confiscation of money, assets, or other utilities of which the convicted person cannot justify the origin and of which, even through an interposed natural or legal person, they are found to be the owner or have availability in any capacity, in an amount disproportionate to their income, declared for income tax purposes, or to their economic activity, shall always be ordered, rather than providing that the judge may order the aforementioned confiscation.”

3.1.– The referring judge reports that he must rule, with an abbreviated procedure, on Y. L., accused of the offense under Article 73, paragraph 5, of the Consolidated Text on Drugs for having been found in possession in his home of 30.18 grams of hashish, 0.19 grams of marijuana, and 7.34 grams of MDMA. During the search, 750 euros in cash were also seized.

The a quo judge, deeming the accused’s responsibility for the alleged offense proven, observes that – pursuant to the challenged provision – he should proceed with the confiscation of the seized sum, since the accused provided no justification for its legitimate origin, nor "elements to believe that said money was [acquired by him] in a period excessively antecedent” to the date of commission of the crime.

The circumstance that the offense was committed prior to the entry into force of the provision in question would be irrelevant, since, according to a line of case law of the Court of Cassation now definable as living law, extended confiscation constitutes a patrimonial security measure with a non-punitive nature. Therefore, Article 200, first paragraph, of the Penal Code, referred to by Article 236 of the Penal Code, would apply, according to which security measures are governed by the law in force at the time of their application, which coincides with the moment the first-instance judgment is rendered (citing, among others, Court of Cassation, Fourth Penal Section, Judgment of March 20–April 8, 2024, No. 14095, and Sixth Penal Section, Judgment of October 23–November 5, 2024, No. 40620). No further confiscation measure could be ordered if the raised questions were accepted.

Hence their relevance.

3.2.– As for their non-manifest groundlessness, the referring judge reiterates, regarding the questions raised as primary grounds and those raised as an ultimate alternative, the same arguments previously presented in the order registered under no. 203 of the ordinary register of 2024.

As for the questions raised as a first alternative ground, relating to the intertemporal effectiveness of the challenged provision – which are not found in the previous order – the a quo judge recalls that the principle of non-retroactivity of unfavorable criminal laws, although extended to administrative sanctions with a punitive nature, is established by Article 25, second paragraph, of the Constitution only with reference to penalties. For security measures, Article 25, third paragraph, of the Constitution declines the principle of legality in a differentiated manner, as the "guarantee of their non-retroactivity to the detriment of the accused is not provided for” (citing this Court’s Judgment No. 22 of 2022).

However, recent rulings by this Court and the European Court of Human Rights have stressed that measures lacking a punitive nature must in any case respect the "guarantees inherent in the legal interests they affect.” In particular, the referring judge invokes this Court’s Judgment No. 24 of 2019, concerning the application requirements of preventive personal and patrimonial measures, where it was observed that preventive confiscation, due to its capacity to significantly affect the rights to economic initiative and property, protected at the constitutional level by Articles 41 and 42 of the Constitution and at the conventional level by Article 1 of the Additional Protocol to the ECHR, must in any case "be subject to the combined provisions of the guarantees to which the Constitution and the European Convention for the Protection of Human Rights and Fundamental Freedoms subject the legitimacy of any restriction on these rights.” To this end, the a quo judge observes, this Court specifically invoked the need for such measures to have a legal basis of "adequate quality” that allows their addressees to foresee their application.

Emphasizing the "analogies” between preventive confiscation and extended confiscation highlighted by Judgment No. 24 of 2019 itself, the referring judge thus deems it constitutionally necessary that – in the case of new confiscation measures or the extension of pre-existing confiscation measures to previously unforeseen cases – the new regulation applies only to acts committed after the entry into force of the legislative amendments. It is significant in this regard that, during the conversion of Decree-Law No. 124 of October 26, 2019 (Urgent provisions on tax matters and for indispensable needs) – whose Article 39 had extended the extended confiscation institute to certain tax offenses – the legislator expressly provided, by adding paragraph 1-bis to that article, that the aforementioned provision applies only to conduct occurring after the entry into force of the conversion law of the decree-law itself (Law No. 157 of December 19, 2019).

4.– In this case as well, the President of the Council of Ministers intervened in the proceedings, represented and defended by the State Attorney General’s Office, requesting that the questions be declared inadmissible or, in any case, manifestly unfounded.

4.1.– The raised questions would be inadmissible due to a lack of reasoning regarding the parameter under Article 42 of the Constitution, which is reportedly merely invoked without any indication of the reasons for its alleged violation.

4.2.– On the merits, the manifest groundlessness allegedly stems, firstly, from the radical irrelevance of the reference to this Court’s Judgment No. 223 of 2022, concerning the different matter of free legal aid. The referring judge reportedly failed to address the case law of the Court of Cassation, which requires reasoning to support the requirement of disproportion between the accused's assets and lawful income, which must be stricter the more modest the seized sums are.

The objective pursued by the legislator is reportedly to be identified in the need to "provide a more severe sanctioning response for cases of ‘street dealing’” through the assignment of a "marked deterrent and general prevention purpose” to the extended confiscation tool.

Regarding the alleged disparity of treatment resulting from the exclusion of extended confiscation in case of conviction for the offense under Article 74, paragraph 6, of the Consolidated Text on Drugs, the intervenor observes that "associative conduct can abstractly result in no profit when the associative contribution is not expressed in complicity in the target offenses.” In any case, the normative provision does not at all exclude the possibility of applying extended confiscation under Article 51, paragraph 3-bis, of the Code of Criminal Procedure, considering that Article 240-bis of the Penal Code makes an unreserved reference to this provision.

With reference, furthermore, to the questions aiming to replace the current mandatory regime of extended confiscation with a merely optional one, they are equally unfounded, as this is a solution not under mandatory terms, but "involving choices and assessments reserved exclusively to the legislator.”

With reference, finally, to the questions concerning the retroactivity of the new text of Article 85-bis of the Consolidated Text on Drugs, the State Attorney General’s Office reiterates that security measures, unlike penalties and punitive sanctions, are governed not by the second, but by the third paragraph of Article 25 of the Constitution, which subjects them only to the principle of legality but not to that of non-retroactivity. The consequent applicability of Article 200, first paragraph, of the Penal Code would therefore imply the possibility of retroactively ordering the extended confiscation, as repeatedly recognized by the case law of the Court of Cassation following the normative amendment under discussion: a retroactive application which would also be justified by the purpose, inherent in the generality of security measures, of "ensuring an effective fight against criminal danger.”

Considered in Law

1.– The Court of Florence, First Penal Section, through the two distinct orders indicated in the heading, raises four groups of questions.

Both referral orders primarily doubt, with reference to Articles 3 and 42 of the Constitution, the constitutional legitimacy of Article 85-bis of the Consolidated Text on Drugs, as amended by Article 4, paragraph 3-bis, of Decree-Law No. 123 of 2023, as converted, insofar as it provides for the application of the so-called extended confiscation under Article 240-bis of the Penal Code in case of conviction or application of the negotiated plea also for the criminal hypothesis under Article 73, paragraph 5, of the Consolidated Text on Drugs: a hypothesis expressly excluded from the general provision for the applicability of this confiscation measure in relation to the offenses specified in the aforementioned Article 73 by the previous version of the challenged provision.

With a second group of questions, raised as secondary grounds solely by the order registered under no. 203 of the ordinary register of 2024, with reference—again—to Articles 3 and 42 of the Constitution, the referring judge aims instead for a more limited declaration of constitutional illegitimacy of the same Article 85-bis of the Consolidated Text on Drugs, insofar as it does not limit its scope of application to the hypothesis in which the conduct assumes "non-occasional characteristics,” with regard to the offense under Article 73, paragraph 5, of the Consolidated Text on Drugs.

With the third group of questions, raised by both orders as an ultimate alternative ground, always with reference to Articles 3 and 42 of the Constitution, the a quo judge challenges Article 85-bis of the Consolidated Text on Drugs in conjunction with Article 240-bis of the Penal Code, insofar as it mandates, rather than allows, the extended confiscation in case of conviction or negotiated plea for the offense under Article 73, paragraph 5, of the Consolidated Text on Drugs.

Finally, with a fourth group of questions, raised as secondary grounds solely by the order registered under no. 95 of the ordinary register of 2025, with reference to Articles 42 and 117, first paragraph, of the Constitution, the latter in relation to Article 1 of the Additional Protocol to the ECHR, the Florence Court challenges Article 85-bis of the Consolidated Text on Drugs in conjunction with Articles 200, first paragraph, 236, second paragraph, and 240-bis of the Penal Code, insofar as it – based on the interpretation of the case law of the Court of Cassation, taken as living law – provides for the retroactive application of the security measure of confiscation regulated therein to offenses under Article 73, paragraph 5, of the Consolidated Text on Drugs committed prior to the entry into force of Decree-Law No. 123 of 2023, as converted, rather than providing that it shall not apply to offenses under Article 73, paragraph 5 of Presidential Decree 309/1990 prior to the amendment of Article 85-bis of Presidential Decree 309/1990.

2.– The two referral orders raise questions that are partly identical and in any case closely connected, so that it is appropriate to order the joinder of the related proceedings for a single decision.

3.– The State Attorney General’s Office raised various exceptions of inadmissibility in both proceedings, none of which, however, are founded.

3.1.– Firstly, the exception of lack of reasoning regarding relevance, raised with reference to the questions raised by the order registered under no. 203 of the ordinary register of 2024, is not founded.

The referring judge, in fact, punctually illustrates the reasons why he would be required to apply the extended confiscation based on the provisions challenged, in the absence of the desired declaration of constitutional illegitimacy.

As for the occasional or non-occasional nature of the conduct, the a quo judge also clarifies unequivocally that he cannot deem the aggravating circumstance of non-occasionality of the conduct to be present, both because it was not contested by the public prosecution (and this argument would be sufficient in itself), and because there are no prior convictions of the accused for the same criminal offense, which are considered – with a not implausible assessment by the referring judge, supported by the case law cited – essential conditions for the application of the circumstance itself.

Nevertheless – on the different level of interpretation secundum Constitutionem of the extended confiscation, as configured by the case law of the Court of Cassation and this Court’s Judgment No. 33 of 2018 – the same referring judge clarifies that he cannot deem the conduct ascribed to the accused entirely episodic, in light of the procedural findings. This prevents the a quo judge from subsuming the concrete case into one of those hypotheses, identified by the cited Judgment No. 33 of 2018, in which the judge must refrain from ordering the extended confiscation in light of its own ratio. This conclusion—which corroborates the assessment of relevance of the questions, confirming the applicability of the challenged provision in the case at hand—is therefore congruously reasoned by the a quo judge, and in any case above the standard of non-implausibility required by the constant case law of this Court for the admissibility of the question.

3.2.– The exception, raised with reference to the questions raised by the order registered under no. 203 of the ordinary register of 2024, which relies on the "manipulative” and "not constitutionally mandatory” character of the solutions proposed by the referring judge, is also manifestly unfounded: both because, as recently reiterated frequently, "[i]n the incidental judgment of constitutional legitimacy, the petitum of the referral order serves to clarify the content and direction of the challenges raised by the referring judge,” so that, should this Court find the questions founded, "it remains free to identify the most suitable ruling for the reductio ad legitimitatem of the challenged provision, not being bound by the wording of the petitum of the referral order in compliance with the parameters invoked” (Judgment No. 221 of 2023, point 4 of the Considered in Law; similarly, most recently, ex multis, Judgments No. 138 of 2025, point 2 of the Considered in Law; No. 135 of 2025, point 5 of the Considered in Law; No. 83 of 2025, point 4.6. of the Considered in Law; No. 53 of 2025, point 2 of the Considered in Law; No. 46 of 2024, point 4.2. of the Considered in Law); and because, further upstream, the lack of a single constitutionally mandatory solution cannot exempt this Court from seeking, within the system, a "constitutionally adequate” solution to remedy the violation itself, without prejudice to possible legislative intervention (most recently, ex multis, Judgments No. 138 of 2025, point 2 of the Considered in Law; No. 103 of 2025, point 5.1. of the Considered in Law; No. 94 of 2025, point 5 of the Considered in Law; No. 138 of 2024, point 5 of the Considered in Law; No. 90 of 2024, point 3.1. of the Considered in Law, and No. 5 of 2024, point 4.1. of the Considered in Law).

3.3.– The exception, still formulated in relation to the order registered under no. 203 of the ordinary register of 2024, which relies on the lack of reasoning regarding the non-manifest groundlessness of the questions raised as secondary grounds, is likewise unfounded, since, on the one hand, the referring judge provides a precise rationale also for these questions, and on the other hand – in his view – the reasons for the conflict between the challenged provision and the evoked parameters, regarding its "steady-state” operation, would always be the same: which allows the extensive reasoning provided by the referring judge regarding the primary questions to be easily applied also to the secondary questions.

3.4.– A fourth exception – formulated in terms that are admittedly not easily intelligible in relation to the order registered under no. 203 of the ordinary register of 2024 – presumably aims to show the systemic inconsistencies that a ruling accepting the two groups of questions raised by that order as secondary and ultimate alternative grounds would cause.

Understood this way, however, the exception pertains to the merits of the questions, rather than their admissibility.

3.5.– Finally, the exception – formulated in reference to both referral orders – of lack of reasoning regarding the parameter under Article 42 of the Constitution is unfounded. In fact, the referring judge’s argument is clear in that the inconsistencies of the challenged regulation – inconsistencies which the referring judge himself identifies, as already observed, based on an articulated rationale – entail, concurrently, a violation of the principles of reasonableness and equality, enshrined in Article 3 of the Constitution, and a disproportionate limitation of the right to property, protected by Article 42 of the Constitution.

4.– On the merits, the first three groups of questions are not founded, with which the referring judge essentially complains – measured against Articles 3 and 42 of the Constitution – of the unreasonable character of the challenged regulation and its excessive impact on the right to property, as well as the disparity of treatment it induces compared to the criminal hypothesis provided for in Article 74, paragraph 6, of the Consolidated Text on Drugs.

4.1.– In fact, the referring judge is not mistaken in recalling the multiple occasions on which this Court has found the extension of unfavorable regulations to the so-called "minor trafficking” offense under Article 73, paragraph 5, of the Consolidated Text on Drugs (which actually encompasses the entire range of conduct described in Article 73, when characterized by minor significance) to be constitutionally illegitimate.

The most recent precedent in this regard is represented by Judgment No. 90 of 2025, which found the preclusion of suspension of the trial with probation for the accused in the aforementioned offense to be unreasonable. That ruling emphasized the "reduced,” and sometimes even "minimal” (as observed by Judgment No. 40 of 2019), harmfulness to the protected legal interests (Judgment No. 90 of 2025, point 5.5.1. of the Considered in Law).

Previously, this Court had deemed unreasonable the inclusion of the conviction hypothesis for this offense among those automatically precluding the renewal of a residence permit for a foreigner, taking specific account – among other things – of the "lesser degree of harmfulness” of the conduct in question (Judgment No. 88 of 2023, point 6.3. of the Considered in Law).

Similarly, the provision for the automatic rejection of the regularization application of a foreign worker against whom a conviction has been issued for the offense in question was declared constitutionally illegitimate, on the grounds of the unsustainability of an absolute presumption of dangerousness that prevents assessing concretely whether, at the time of the application, the foreigner who committed an offense of "limited harmfulness” still represents a threat to public order or safety (Judgment No. 43 of 2024, point 7 of the Considered in Law).

Moreover, this Court – with a decision on which a significant part of the referring judge's reasoning hinges – declared the automatic exclusion from free legal aid of those convicted of the offense in question constitutionally illegitimate, arguing in particular that "‘minor trafficking’ […] is inherently incapable of suggesting an income level higher” than the minimum annual income threshold for personal income tax (IRPEF) set for admission to free legal aid, equal – at the time – to about one thousand euros per month, based on the proceeds of criminal activity. "The opposite is true,” this Court argued on that occasion, as it involves "often low-level labor used by organized crime and coming from the marginal brackets of the ‘non-affluent’” (Judgment No. 223 of 2022, point 12 of the Considered in Law).

4.2.– However, this Court does not consider it manifestly unreasonable, nor disproportionately restrictive of the right to property, the decision of the 2023 legislator to impose on the judge, in principle – save for the correctives discussed later (infra, 5) – to confiscate assets found in the possession of anyone convicted (or who has agreed to the application of a penalty) for this specific offense, when such assets are disproportionate to their income and they are unable to justify their legitimate origin.

4.2.1.– Judgment No. 33 of 2018, widely cited by the referring judge, accurately reconstructed the historical genesis in our legal system of extended confiscation, currently regulated by Article 240-bis of the Penal Code, and illustrated the framework of international and EU obligations in reference up to 2018, also focusing on the ratio assigned to the measure (points 6 and 7 of the Considered in Law).

It is appropriate to refer back to that extensive analysis here, without neglecting to recall the essential ratio of the measure identified in that ruling: the normative scheme of extended confiscation "is based, in essence, on a presumption of illicit origin of the assets held by subjects convicted of certain offenses, mostly (but not always) connected to forms of organized crime: in the presence of certain conditions, it is presumed, that is, that the convicted person has committed not only the offense that led to the conviction, but also other offenses, not judicially ascertained, from which the assets he possesses derive.”

Such a presumption, as already noted in 2003 in a ruling of the United Chambers cited by Judgment No. 33 of 2018 (Court of Cassation, United Penal Sections, Judgment of December 17, 2003–January 19, 2004, No. 920), can reasonably operate against offenses capable of creating an "economic accumulation, in turn a possible instrument for further crimes.” The legislator intends precisely to counteract this accumulation through a confiscation measure that is not based on proof of the origin of the asset to be confiscated from the single offense for which conviction is pronounced, but on the reasonable presumption that – in the presence of a disproportion between declared income and the value of the assets, and in the absence of a plausible justification for their lawful origin – they were acquired through criminal activities other than those judicially ascertained.

It is not, however, necessary that the offense for which extended confiscation is provided is connected to organized crime. This was already noted in Judgment No. 33 of 2018: although originally, in our legal system, "the objective of ‘extended’ confiscation was explicitly identified in combating the accumulation of assets of organized, and specifically Mafia, crime and their massive infiltration into the economic circuit,” from 1994 to today the legislator has progressively added to the list of "matrix offenses,” or "indicator offenses,” a series of criminal figures that do not necessarily presuppose any "stable and structured organization aimed at obtaining illicit profits,” but "may be perpetrated in contexts entirely separate from this and which do not even imply, absolutely and unfailingly, the status of a ‘serial’ offender on the part of their author” (point 10 of the Considered in Law).

The essential characteristic of these "matrix offenses” must, however, be, to ensure the reasonableness of the legislative choice, their "profit-generating” potential, i.e., their potential to produce economic advantages for their author. In the absence of this potential, the presumption of origin of the convicted person’s assets from further criminal conduct, even in the presence of the positive condition of disproportion compared to income and the negative condition of the failure to justify lawful origin, would be devoid of any rational foundation.

Based on this consideration, Judgment No. 33 of 2018 considered the legislative choice to extend the mandatory application of extended confiscation to the offense of receiving stolen goods as not challengeable under the principle of reasonableness of Article 3 of the Constitution, this being an offense by nature "capable of determining an illicit accumulation of wealth and capable, according to ‘sociological’ observation, of being perpetrated in a ‘professional’ or, in any case, continuous form” (point 11 of the Considered in Law).

4.2.2.– Analogous considerations can be made today for the criminal figures covered by Article 73, paragraph 5, of the Consolidated Text on Drugs: these are also characterized by the capacity to produce illicit profits, and are certainly capable of being committed continuously.

The undeniable paucity of offensive content of each act – and, correspondingly, the modesty of the profits derived, for example, from the individual activities of sale or cultivation of small quantities of narcotic substances – is not, in fact, incompatible with the empirical data that their authors often habitually derive their income precisely from those activities, especially when they lack stable or, in any case, regular employment. This makes the relative presumption, established by the legislator, of illicit origin of the assets and money of which the accused is found in possession, and whose origin he cannot otherwise justify, not unreasonable.

This conclusion is not in contradiction with what this Court held in Judgment No. 223 of 2022, cited earlier: it is one thing, in fact, to deem unreasonable a presumption that anyone convicted, even on a single occasion, of the offense in question may have income exceeding the minimum IRPEF income threshold set for admission to free legal aid, due to the proceeds of criminal activity; it is another thing, however, to presume – while ensuring the interested party the possibility of providing contrary proof, and with further clarifications to be discussed shortly – that the assets or money of which he is concretely found in possession, in a quantity disproportionate to the declared income, also originate from criminal activities other than those for which he has already been recognized as responsible.

4.2.3.– A different conclusion, on the other hand, would place our legal system in a situation of conflict with the obligations arising from European Union law. The EU regulation on extended confiscation, or – in the terminology of the European legislator – "extended,” was originally contained in Article 3 of Council Framework Decision 2005/212/JHA of February 24, 2005, concerning the confiscation of assets, instruments, and proceeds of crime. This regulation was subsequently incorporated into Article 5 – titled "Confiscation powers” in the Italian version, but much more eloquently titled "Extended confiscation” in the English version and "Confiscation élargie” in the French version – of Directive 2014/42/EU of the European Parliament and of the Council of April 3, 2014, on the freezing and confiscation of instrumentalities and proceeds of crime in the European Union.

Paragraph 1 of this Article 5 provides: "[m]ember States shall adopt the necessary measures to be able to confiscate, totally or partially, assets belonging to a person convicted of an offense capable of producing, directly or indirectly, an economic advantage, where the judicial authority, based on the circumstances of the case, including the specific facts and available evidence, such as the fact that the value of the assets is disproportionate to the legitimate income of the convicted person, is convinced that the assets in question derive from criminal conduct.”

The following paragraph 2 lists the types of offenses to which this form of confiscation must be applicable, referring – in letter e) – to the offenses under Article 3 of the directive. Article 3, in turn, lists numerous instruments of EU law that provide for harmonization obligations for criminal offenses. In particular, in letter g), Council Framework Decision 2004/757/JHA of October 25, 2004, concerning the establishment of minimum standards for the constituent elements of offenses and the penalties applicable in the field of illicit trafficking in narcotic drugs, is mentioned.

In this regard, Article 5, paragraph 2, letter e), of Directive 2014/42/EU on confiscation specifies that, where the referenced instrument of EU law does not specify a threshold of punishability, the obligation to provide for the power of extended confiscation exists where the offenses provided for therein are punished, under national law, "with a maximum term of imprisonment of at least four years.” This is, precisely, what occurs in Italy in respect of the offense under Article 73, paragraph 5, of the Consolidated Text on Drugs, which today provides for a maximum penalty of five years of imprisonment.

A recent judgment of the Court of Justice of the European Union confirmed, in response to various preliminary questions raised by a Bulgarian court, that the cited provisions of EU law apply "even when all elements relating to the commission [of the offense of detention of narcotics for trafficking purposes] are located within a single Member State,” provided, naturally, that it is punished by domestic law with a maximum term of imprisonment equal to or greater than four years. The Court of Justice added that the obligation to proceed with confiscation extends to assets other than those constituting the economic advantage derived directly from the single offense, also including assets that the national court is convinced derive from other criminal conduct (Court of Justice of the European Union, Third Section, Judgment of October 21, 2021, DR and TS, joined cases C-845/19 and C-863/19, paragraphs 34 and 71, respectively).

The same obligation is finally reproduced, with slight textual changes, in Article 14 (also titled "Extended Confiscation” in the Italian version) of the new Directive (EU) 2024/1260 of the European Parliament and of the Council of April 24, 2024, concerning the recovery and confiscation of assets, the transposition deadline for which will expire on November 23, 2026. This provision also confirms – by referring to the list contained in Article 2, paragraph 1, letter e), of the directive itself – that the scope of application of extended confiscation includes offenses related to narcotic drugs regulated by Framework Decision 2004/757/JHA, provided that such offenses are punishable with a maximum term of imprisonment of not less than four years.

None of these EU provisions allows the Member State to automatically exclude minor or, in any case, less serious criminal acts falling within the scope of application of Framework Decision 2004/757/JHA.

4.2.4.– The applicability of extended confiscation in case of conviction (or application of the negotiated plea) for the offense under Article 73, paragraph 5, of the Consolidated Text on Drugs provided by the challenged provision does not, finally, create the unreasonable disparity of treatment complained of by the referring judge compared to the criminal hypothesis provided for in Article 74, paragraph 6, of the same Consolidated Text.

The referring judge invokes, in this regard, a line of case law of the Court of Cassation, which excluded the application of extended confiscation to the hypothesis of conspiracy aimed at committing acts of "minor trafficking” sanctioned, precisely, by Article 74, paragraph 6, of the Consolidated Text on Drugs (Court of Cassation, Third Penal Section, Judgment of June 11, 2015–July 6, 2016, No. 27770), drawing, moreover, argument from the inapplicability of extended confiscation to that specific target offense, based on the regulation in force at the time.

This line of reasoning, although recently reiterated (Cass., No. 6247 of 2024), could, however, be reconsidered by the case law of the Court of Cassation precisely in light of the amendment to Article 85-bis of the Consolidated Text on Drugs that occurred in the interim, which extended the applicability of extended confiscation also to "minor trafficking.” This is also based on the consideration, put forward by the State Attorney General’s Office, that Article 240-bis of the Penal Code provides, with a general provision, for the mandatory application of extended confiscation in relation to all offenses listed in Article 51, paragraph 3-bis, of the Code of Criminal Procedure. The latter provision in turn refers to the offenses under Article 74 of the Consolidated Text on Drugs in its entirety, without excluding the hypothesis under paragraph 6.

The lack, at present, of consolidated case law following the recent amendment of the normative context therefore prevents decisive arguments in favor of the unreasonable disparity of treatment complained of by the referring judge from being drawn from the provision taken as tertium comparationis.

5.– Moreover, the not unfounded concerns of the referring judge regarding the risks of an excessively broad application – and thus leading to unreasonable results, as well as disproportionately affecting the right to property of the interested parties – of the extended confiscation in cases of conviction for the offenses under Article 73, paragraph 5, of the Consolidated Text on Drugs can and must be addressed through the correct application of principles already established for some time by the case law of the Court of Cassation, and widely taken up by the often-cited Judgment No. 33 of 2018 of this Court (infra, 5.1., 5.2., 5.3. and 5.4.), also finding confirmation in the indications provided by EU law (infra, 5.5.) and comparative law (infra, 5.6.). These principles apply, moreover, in every case in which the judge is called upon to apply the extended confiscation, and not only with reference to the specific criminal offense now under examination.

5.1.– Summarizing the directives of the Court of Cassation already consolidated at the time, Judgment No. 33 of 2018 recalled, firstly, that "[t]he presumption of illicit origin of the convicted person’s assets arises […] not as a result of mere conviction, but only if the disproportion between said assets and the convicted person’s declared income or economic activities is ascertained – with the burden of proof resting on the public prosecution: a disproportion which – according to current judicial trends – does not consist of any discrepancy between earnings and possessions, but in an incongruous and significant imbalance, to be verified with reference to the time of acquisition of each asset” (point 11 of the Considered in Law, emphasis added. In the sense that "the more modest the sums subject to seizure, the more rigorous must be the reasoning supporting the requirement of disproportion between the accused’s possessions and their income,” see also, recently, Court of Cassation, Fourth Penal Section, Judgment of March 22–May 13, 2024, No. 18608).

5.2.– Secondly, Judgment No. 33 of 2018 observed that the presumption in question "is only relative, remaining rebuttable by the convicted person through the justification of the origin of the assets. Indeed, according to constant case law – at least since [Cass., united sections, No. 920 of 2004] – it is not even a true inversion of the burden of proof, but a simple burden of alleging facts that make the lawful origin of the assets credible” (again, point 11 of the Considered in Law, emphasis added. In the same sense, Court of Cassation, United Penal Sections, Judgment of June 26, 2014–February 2, 2015, No. 4880, where it is specified that "the burden of proof on the subject affected is certainly not calibrated on the standards of a rigorous and formal evidentiary statute, modulated on that in force in property matters, so as to rise, in certain cases, to the rank of probatio diabolica. To fulfill it, the mere allegation of facts, situations, or events that reasonably and plausibly indicate the lawful origin of the assets subject to the patrimonial measure request and are, obviously, verifiable, is sufficient.”).

On this point, subsequent case law of the Court of Cassation has insisted on emphasizing that "the relative presumption does not bring about a real inversion of the burden of proof, but is limited to placing on the subject who is the addressee of the confiscation or seizure measure a burden of alleging facts and circumstances of which the judge will assess the specificity and relevance and will ultimately verify the existence” (Court of Cassation, United Penal Sections, Judgment of October 26, 2023–February 23, 2024, No. 8052).

5.3.– Thirdly, according to the constant teaching of the case law of the Court of Cassation (widely reiterated even after Judgment No. 33 of 2018: for example, recently, Court of Cassation, First Penal Section, Judgment of January 23–June 26, 2024, No. 25239), the presumption of illicit origin of assets must be understood as confined within a scope of "temporal reasonableness” with respect to the moment of commission of the offense for which the subject has been convicted, so as not to deprive of foundation "the presumption of derivation of the asset itself from an illicit activity, even if different and complementary to that for which the conviction was issued” (again, Judgment No. 33 of 2018, point 11 of the Considered in Law).

A similar requirement has, moreover, been repeatedly enunciated by the parallel case law on preventive confiscation (on the structural homogeneity between the two types of confiscation, Judgment No. 24 of 2019, point 10.3. of the Considered in Law), in this case with reference to the time to which social dangerousness refers, and therefore – essentially – to the time when the indications of the commission of the illicit activities that constitute the prerequisite for the application of the measure date back (Cass., No. 4880 of 2015). This latter requirement is to be considered indispensable also in light of the conventional standards for the protection of the interested party's rights, as is evident from the very recent ruling of the ECtHR European Court of Human Rights, First Section, September 25, 2025, Isaia and others v. Italy.

The requirement of "temporal reasonableness” (or, more accurately, "temporal congruence”) is in fact necessary, as also noted in Judgment No. 33 of 2018, in order to "avoid an abnormal expansion of the scope of operation of the ‘extended’ confiscation institute, which would otherwise legitimize – even in the face of conviction for a single offense included in the list – a patrimonial monitoring extended to the entire life of the convicted person. A result that […] would risk making the fulfillment of the interested party’s burden to justify the origin of the assets (even if understood as simple allegation) particularly problematic, which becomes more complicated the further back in time the acquisition of the asset to be confiscated is dated” (point 11 of the Considered in Law).

5.4.– A fourth requirement that must be considered implicit in the regulation of extended confiscation deserves, finally, special attention.

Judgment No. 33 of 2018 offered an interpretative indication of particular relevance regarding offenses such as "minor trafficking” regulated by Article 73, paragraph 5, of the Consolidated Text on Drugs. When dealing with individual criminal acts that are not committed within an organized crime context, nor in the execution of a criminal program extended over time, the judge must necessarily be recognized "the possibility of verifying whether, in relation to the circumstances of the concrete case and the personality of its author – which are particularly relevant to characterize the criminal event as entirely episodic and occasional and productive of modest enrichment – the act for which conviction was issued manifestly falls outside the ‘model’ that grounds the presumption of illicit accumulation of wealth by the convicted person” (point 11 of the Considered in Law).

In other words, the indication contained in Article 240-bis of the Penal Code that the extended confiscation "is always ordered” in case of conviction or application of the negotiated plea for the offenses listed therein must necessarily be read – to avoid arriving at unreasonable results and disproportionately affecting the interested party's right to property, but also to ensure a reading of the norm consistent with the logic and the very intentions of the legislator – in light of the ratio underlying Article 240-bis of the Penal Code. The ratio is not that of inflicting an additional punishment on the offender, but that of depriving him of assets and resources that plausibly originate, as already observed by Judgment No. 33 of 2018, from further criminal activity that remained "hidden” (point 12 of the Considered in Law), and therefore from the reasonably presumable commission of prior acts constituting a crime – not from other, generic, illicit activities.

This excludes that this measure, normally mandatory in the presence of the requirements examined so far, must also be ordered when – in light of all the circumstances of the concrete case, filtered through the adversarial process between prosecution and defense – the criminal act appears to the judge not as expressive of a criminal habit from which the author has plausibly drawn illicit profits, but rather isolated or, in any case, occasional. In that case, in fact, the very legislative presumption of illicit origin of the assets of which the accused is found in possession would be falsified, even if disproportionate in value to his declared income, and even if he is unable to justify its lawful origin under the criteria indicated by Article 240-bis of the Penal Code (which could happen, for example, when such assets derive from irregular employment activities).

5.5.– This restrictive interpretation according to the ratio of the challenged provision, and of Article 240-bis of the Penal Code as a whole, is, moreover, the reading that is most harmonious with EU law, whose obligations permeate the entire criminal regulation of narcotic drugs in the Italian legal system.

If it is indeed undeniable, as observed earlier, that the current instruments in this area require Member States to provide for the power of the judge to order extended confiscation in case of conviction for drug-related offenses for which the national legal system provides a maximum penalty equal to or greater than four years of imprisonment, it is equally true that – at least since Directive 2014/42/EU – the application of the measure is not based on any automatism, but presupposes that "the judicial authority, based on the circumstances of the case, including the specific facts and available evidence, such as the fact that the value of the assets is disproportionate to the legitimate income of the convicted person, is convinced that the assets in question derive from criminal conduct” (Article 5, paragraph 1, emphasis added).

Similar indications, with some terminological variations, are now reproduced in Article 14, paragraphs 1 and 2, of the new Directive (EU) 2024/1260. The disproportion of the assets compared to legitimate income therefore constitutes, in this scheme, only one of the indices that the judge is called upon to consider, for the purpose of forming his own "conviction” on the illicit origin of the assets to be confiscated. Furthermore, both recital 21 of Directive 2014/42/EU and recital 29 of the new Directive (EU) 2024/1260 clarify that the State may set "a time frame within which assets can be considered to derive from criminal conduct,” in line – therefore – with the aforementioned case law relating to the necessary requirement of temporal congruence of the acquisition of the confiscated assets with respect to the tempus commissi delicti.

Nor could it be objected that the EU instruments in question are limited to setting minimum standards in combating drug offenses, since Member States may adopt stricter solutions. In fact, the need to adopt solutions at the EU level that ensure uniform levels of protection of the rights of the persons concerned is imposed, at least, by two concurrent reasons. On the one hand, EU law has an obvious interest in ensuring the broadest level of mutual recognition of decisions in criminal matters, including confiscation orders, throughout the European legal area, without this being hindered by the imposition of limits, at the national level, deriving from the need to respect domestic standards for the protection of the constitutional rights of the interested parties. On the other hand, the European Union itself, where it intervenes with harmonization measures, has the duty to ensure all interested parties the minimum standards of protection for the rights recognized to them by the Charter of Fundamental Rights of the European Union, including – specifically – the right to property under Article 17, as well as the right to judicial defense in all its articulations established by Articles 47 and 48.

All of this is fully confirmed in the already cited Judgment DR and TS of October 21, 2021, of the Court of Justice, where it is stressed that, "as appears from recital 21 of Directive 2014/42, the judge must, in any case, be convinced, based on the circumstances of the case, including the specific facts and available evidence, that the assets in question derive from criminal conduct. In this regard, the referring court may specifically take into consideration, as provided for in Article 5, paragraph 1, of Directive 2014/42, the disproportion between the value of the assets in question and the legitimate income of the convicted person. That said, that person must have a real opportunity to challenge the specific circumstances of the case, including the concrete factual elements and the available evidence on the basis of which the assets in question are considered to be derived from criminal conduct, according to the terms of Article 8, paragraph 8, of Directive 2014/42” (paragraph 67, emphasis added).

5.6.– In terms of comparative law, it is also significant that the German Federal Constitutional Court reached analogous interpretative results in a 2004 judgment concerning a regulation on extended confiscation (Erweiterter Verfall), introduced in 1992 and similar in various aspects to that provided for in Italy by Article 240-bis of the Penal Code. The German Court, in particular, excluded the conflict with the constitutional principles then invoked, including the right to property and the presumption of innocence, while stressing – along the lines already affirmed by the case law of the Court of Cassation, within the framework of a deliberately "restrictive” interpretation of the norm – the need for the judge to be convinced of the illicit origin of the assets, based on all the circumstances of the concrete case (German Federal Constitutional Court, Judgment of January 14, 2003, 2 BvR 564/95, paragraphs 93-97).

5.7.– In conclusion, an interpretation of the provision that is in compliance with the Constitution and European Union law – which is simultaneously a restrictive interpretation according to its own ratio – allows the exclusion of all aspects of friction with Articles 3 and 42 of the Constitution pointed out by the referring judge.

This interpretation ensures the judge, without the need for any declaration of constitutional illegitimacy, the necessary margins of appreciation to exclude the application of confiscation in cases where, in light of all the circumstances of the case and the allegations of the accused, he is not convinced that the assets – although disproportionate to his declared income, and whose lawful origin he is unable to justify according to the criteria indicated by Article 240-bis of the Penal Code – constitute the proceeds, or were acquired with the proceeds, of criminal activities other than that for which conviction was pronounced; but rather has reason to believe that the criminal act is occasional, and therefore not expressive of that criminal habit which, alone, could support the legislative presumption in question.

6.– The questions raised by the order registered under no. 95 of the ordinary register of 2025, with which the referring judge complains that the application of extended confiscation to convictions for offenses under Article 73, paragraph 5, of the Consolidated Text on Drugs committed before the entry into force of the challenged provision conflicts with Articles 42 and 117, first paragraph, of the Constitution, the latter in relation to Article 1 of the Additional Protocol to the European Convention on Human Rights, are likewise not founded.

6.1.– The interpretative premise from which the a quo judge proceeds is, in fact, correct. The constant case law of the Court of Cassation holds, in fact, that extended confiscation does not constitute a penalty, but a patrimonial security measure, albeit an "atypical” one (Cass., No. 920 of 2004; in the same sense, United Penal Sections, Judgment of February 25–July 15, 2021, No. 27421 and, most recently, united sections, No. 8052 of 2024). Consequently, Article 200, first paragraph, of the Penal Code applies – by virtue of the reference made by Article 236, second paragraph, of the Penal Code – according to which "[s]ecurity measures are governed by the law in force at the time of their application,” i.e., at the time of the first-instance judgment of conviction (ex multis, recently, Court of Cassation, Second Penal Section, Judgments of January 12–February 23, 2022, No. 6587 and October 12–December 14, 2018, No. 56374; First Penal Section, Judgment of October 24–November 15, 2012, No. 44534). And the conclusion was recently reiterated specifically with regard to the offense under Article 73, paragraph 5, of the Consolidated Text on Drugs following the amendment of Article 85-bis of the same Consolidated Text which is the subject of the current challenges (Court of Cassation, Sixth Penal Section, Judgment of October 23–November 5, 2024, No. 40620; Fourth Penal Section, Judgment of March 22–May 13, 2024, No. 18608).

6.2.– Such living law appears to this Court free from constitutional and conventional challenges.

In fact, when individual forms of confiscation substantially possess a punitive nature, there is no longer any doubt that they must be considered as authentic "penalties” for the purposes of applying the guarantees that the Constitution and the ECHR – as well as the Charter itself, within the scope of application of EU law – establish for criminal matters, including in particular the prohibition of retroactive application to the detriment of the accused (for example, Judgment No. 196 of 2010, concerning the confiscation of a motor vehicle provided for by Article 186 of Legislative Decree No. 285 of April 30, 1992, establishing the "New Highway Code,” in explicit adherence to the positions of the ECtHR on the matter).

However, as observed, the case law of the Court of Cassation is consistent in considering these principles inapplicable to extended confiscation due to its nature as a security measure.

Beyond any possible theoretical dispute regarding the shareability of attributing this form of confiscation to the category of security measures, this case law certainly captures the essence when it excludes the punitive ratio and nature stricto sensu of the measure. In fact, as already emphasized, the purpose of the latter is not to increase the punitive treatment already provided for the offense for which the person concerned is convicted, but rather to prevent him from continuing to enjoy assets illicitly acquired through prior criminal conduct, based on the relative presumption that relies on the requirements analyzed in detail above.

From this perspective, as this Court already observed in Judgment No. 24 of 2019, extended confiscation shares the same purpose as preventive confiscation. Both constitute "species of a single genus,” that of the "confiscation of assets of suspected illicit origin” (point 10.3. of the Considered in Law; in the same sense, Cass., No. 8052 of 2024, and further references therein), which has long been the subject of specific international and EU obligations, arising from the awareness that "traditional” confiscation is insufficient to combat the accumulation of wealth through the commission of crimes (on this point, again, Judgment No. 33 of 2018, point 6 of the Considered in Law).

With respect to these measures, this Court has observed that "in the perspective of the system, the confiscation [of assets acquired through the commission of crimes] constitutes not a sanction, but rather the natural consequence of their illicit acquisition, which determines […] a genetic defect in the establishment of the right to property itself in favor of the person who has acquired the material availability of it.” In that case, the confiscation of the asset does not have "the purpose of punishing the subject for his conduct; but rather, more simply, that of eliminating the factual relationship of the subject with the asset, since that relationship was constituted in a manner inconsistent with the legal order,” and thus neutralizing "that enrichment of which the subject, had the presupposed criminal activity not been carried out, could not enjoy.” Thus, "[i]n the absence of further punitive connotations, the purpose of the patrimonial confiscation is, in this hypothesis, merely restorative of the situation that would have existed in the absence of the illicit acquisition of the asset” (Judgment No. 24 of 2019, point 10.4.1. of the Considered in Law, emphasis added. In the same sense, now, the extensive analysis carried out by the ECtHR, Judgment of January 21, 2025, Garofalo v. Italy, paragraphs 99-140, and punctual references therein to the consistent case law of the same ECtHR concerning measures analogous to preventive confiscation or extended confiscation provided for by other contracting States).

6.3.– Therefore, with reference to a confiscation measure that has non-punitive but restorative characteristics, the inapplicability of the prohibition of retroactive application of criminal law under Article 25, second paragraph, of the Constitution and Article 7 of the ECHR (as well as, within the scope of application of Union law, to Article 49, paragraph 1, second period, of the Charter of Fundamental Rights of the European Union) must be ruled out – as moreover recognized by the a quo judge himself.

Contrary to what the referring judge asserts, moreover, it cannot even be considered that the requirements for protecting – constitutional and conventional – the right to property prevent the legislator and, as far as is relevant here, criminal jurisprudence (based on the general provision under Article 200, first paragraph, of the Penal Code, considered applicable also to an "atypical” security measure such as the one under consideration) from ordering the extended confiscation also in cases of conviction or application of the negotiated plea for criminal acts committed before the entry into force of the law providing for extended confiscation in those hypotheses, but which already constituted a crime at the time. In this case, in fact, the member of society does not enjoy any protectionworthy reliance as to his right to property over the assets subject to confiscation, since these are assets that the legal system considers – in the presence of the conditions analyzed above – to have been acquired through the commission of acts already provided for as a crime by the law in force at the time: and therefore through methods inconsistent with the legal order, which determined "a genetic defect in the establishment of the right to property itself” in favor of the person who acquired the material availability (Judgment No. 24 of 2019, point 10.4.1. of the Considered in Law), and which in any case – if conviction for those crimes had occurred – entailed, already at the time of their commission, the confiscability of those assets under, at least, Article 240 of the Penal Code.

The jurisprudence of the Strasbourg Court has reached identical conclusions with reference to confiscations structurally similar to the one under examination here, under the parameter of Article 1 of the Additional Protocol to the ECHR (ECtHR, Judgment of May 12, 2015, Gogitidze and others v. Georgia, paragraph 99, Decision of February 2, 2021, Ulemek v. Serbia, paragraph 64).

Hence the non-foundation of the question under examination.

for these reasons

THE CONSTITUTIONAL COURT

having joined the proceedings,

1) declares unfounded, in the sense specified in the grounds, the questions of constitutional legitimacy of Article 85-bis of Presidential Decree No. 309 of October 9, 1990 (Consolidated Text of Laws on the regulation of narcotic drugs and psychotropic substances, prevention, treatment, and rehabilitation of related drug addiction states), as amended by Article 4, paragraph 3-bis, of Decree-Law No. 123 of September 15, 2023 (Urgent measures to combat youth distress, educational poverty, and juvenile delinquency, as well as for the safety of minors in the digital sphere), converted, with amendments, into Law No. 159 of November 13, 2023, also in conjunction with Article 240-bis of the Penal Code, raised, with reference to Articles 3 and 42 of the Constitution, by the Ordinary Court of Florence, First Penal Section, with the orders indicated in the heading;

2) declares unfounded the questions of constitutional legitimacy of Article 85-bis of Presidential Decree No. 309 of 1990, as amended by Article 4, paragraph 3-bis, of Decree-Law No. 123 of 2023, as converted, in conjunction with Articles 200, first paragraph, 236, second paragraph, and 240-bis of the Penal Code, raised, with reference to Articles 42 and 117 of the Constitution, the latter in relation to Article 1 of the Additional Protocol to the European Convention on Human Rights, by the Ordinary Court of Florence, First Penal Section, with the order registered under no. 95 of the ordinary register of 2025, indicated in the heading.

Decided this way in Rome, at the seat of the Constitutional Court, Palazzo della Consulta, on September 22, 2025.

Signed:

Giovanni AMOROSO, President

Francesco VIGANÒ, Rapporteur

Igor DI BERNARDINI, Chancellor

Filed in the Chancellery on November 7, 2025

 

The anonymized version conforms, in text, to the original