JUDGMENT NO. 158
YEAR 2026
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 delivered the following
JUDGMENT
in proceedings concerning the constitutionality of Article 27, paragraphs 1 and 2, of Legislative Decree No. 159 of September 6, 2011 (Code of anti-mafia laws and prevention measures, as well as new provisions regarding anti-mafia documentation, pursuant to Articles 1 and 2 of Law No. 136 of August 13, 2010), brought by the Court of Cassation, United Sections in Criminal Matters, upon an appeal filed by F. R., by means of the order of April 24, 2026, registered under No. 84 of the Register of Orders 2026 and published in the Official Gazette of the Republic, First Special Series, No. 20, of the year 2026.
Having regard to the appearance in the proceedings of F. R., as well as the intervention briefs of T. S. et al. and of the President of the Council of Ministers;
having heard in the public hearing of July 8, 2026, the Judge Rapporteur Francesco Viganò;
having heard counsel Alessandro Diddi for F. R. and State Attorney Salvatore Faraci for the President of the Council of Ministers;
having deliberated in the chambers on July 8, 2026.
The Law in Fact
1.– By order of April 24, 2026, registered under No. 84 of the Register of Orders 2026, the Court of Cassation, United Sections in Criminal Matters, raised questions regarding the constitutional legitimacy, with reference to Articles 3, 24, 41, 42, 111, and 117, first paragraph, of the Constitution – the latter in relation to Article 6 of the European Convention on Human Rights (ECHR) and Article 1 of Protocol No. 1 to the ECHR –, of Article 27, paragraphs 1 and 2, of Legislative Decree No. 159 of September 6, 2011 (Code of anti-mafia laws and prevention measures, as well as new provisions regarding anti-mafia documentation, pursuant to Articles 1 and 2 of Law No. 136 of August 13, 2010), "insofar as it does not provide for the appeal of the order denying the request for revocation of the seizure preliminary to preventive confiscation”.
1.1.– The referring United Sections are seised of an appeal for the annulment, inter alia, of the order by which the Court of Appeal of Rome had declared inadmissible the application for the revocation of a seizure ordered pursuant to Article 20 of the Anti-Mafia Code against a person suspected of habitually living on the proceeds of criminal activity, limited to assets with respect to which the applicant – a third party with respect to the prevention proceedings – claimed to be partly the owner and partly the holder of a personal right of enjoyment (ius utendi).
More specifically, the United Sections state:
– that on December 10, 2021, the Public Prosecutor at the Ordinary Court of Rome and the Public Prosecutor at the Ordinary Court of Tivoli had jointly requested the Court of Rome to issue an order for a seizure preliminary to confiscation against A. M.;
– that on March 28, 2022, the Court of Rome had rejected this request, simultaneously scheduling a hearing for the examination of the application for the imposition of a personal prevention measure and confiscation;
– that on November 29, 2022, upholding the appeal of the public prosecutors, the Court of Appeal of Rome had ordered the seizure of assets attributable to A. M., including through a nominee (interposta persona);
– that such assets also included a real estate unit, located in a shopping center, in which F. R. carried out his sole proprietorship business, as well as the movable property located therein;
– that by decree of April 19, 2023, the delegated judge appointed by the Court of Appeal of Rome had ordered the eviction from the real estate unit in question;
– that on May 16, 2023, F. R. had filed a complaint (reclamo) before the Court of Rome against said decree;
– that on May 17, 2023, such complaint was declared inadmissible by the Court of Rome, as it was a means of challenge not provided for by the anti-mafia code;
– that on October 25, 2023, the Second Criminal Section of the Court of Cassation had dismissed the appeals against the seizure decree of the Court of Appeal of Rome, specifically rejecting the appeals filed by certain interested third parties (among whom F. R. was not included) stating that they could have presented their defenses at the hearing referred to in Article 23, paragraph 2, of the Anti-Mafia Code before the Court of Appeal of Rome which had ordered the seizure;
– that on June 25, 2024, F. R. had indeed asked the Court of Appeal of Rome to schedule the hearing referred to in Article 23, paragraph 2, of the Anti-Mafia Code, to seek the revocation of the measure with reference both to the real estate unit over which he claimed to have a right of enjoyment pursuant to a business branch lease agreement, and to the movable property located inside the unit, of which he claimed to be the owner;
– that on July 5, 2024, the Court of Appeal had declared that no ruling was necessary (non luogo a provvedere) on the application, as the appellant had provided no evidence regarding his "actual position”;
– that on November 14, 2024, the Fifth Criminal Section of the Court of Cassation had dismissed F. R.’s appeal against this latter decree, stating – "in conscious contrast” with the ruling of the Second Criminal Section of October 25, 2023, mentioned above – that jurisdiction to hold the hearing referred to in Article 23, paragraph 2, of the Anti-Mafia Code lay with the Court of Rome, and not with the Court of Appeal of Rome, and emphasizing how the protection of the third party’s right of defense must be implemented within the framework of the procedure aimed at the application of confiscation, which takes place before the court;
– that in the meantime, on April 15, 2024, the Court of Rome, granting the requests of the public prosecutors, had ordered the measure of public security supervision with a mandatory residency obligation (obbligo di soggiorno) and the confiscation of the assets seized from A. M.;
– that the Court’s decree had been challenged by A. M. himself and by certain interested third parties, among whom F. R. was not included, before the Court of Appeal of Rome;
– that the appellate proceedings against the confiscation order are still pending as of the date of the referral order;
– that, while such appeal was pending, on February 15, 2025, F. R. had requested the Court of Appeal of Rome to revoke the seizure ordered on November 29, 2022, concerning the assets of which he claimed to have lawful availability;
– that on April 4, 2025, the Court of Appeal had declared such application inadmissible, based on the triple finding that: (a) the original seizure should by now be considered entirely "absorbed by the confiscation decree issued by the Court of Rome on April 15, 2024”; (b) the applicant had "neither alleged nor proved his standing (legittimazione) with respect to the prevention proceedings, as he was neither the owner nor the holder of other rights in rem over the property subject to seizure”; (c) the applicant was a stranger to the seizure proceedings, not having "even been summoned to participate as an interested third party in the confiscation proceedings”;
– that against this order F. R. had filed an appeal to the Court of Cassation, insisting on his standing to request the revocation of the seizure as the holder of a right of enjoyment over the real estate unit in question and the owner of the movable property located therein;
– that by order of October 7, 2025, the Fifth Criminal Section of the Court of Cassation, seised of the appeal, had requested its referral to the United Sections in Criminal Matters, pointing out the existence of an interpretive conflict regarding the possibility of appealing the order dismissing the application for revocation of the seizure preliminary to preventive confiscation, or in any event of challenging such order by means of an enforcement incident (incidente di esecuzione);
– that by decree of October 30, 2025, the First President of the Court of Cassation had assigned the appeal to the United Sections in Criminal Matters, before which the following question of law was submitted: "[w]hether, regarding the challenge of prevention measures, following the amendment of Article 27 of Legislative Decree No. 159 of September 6, 2011, pursuant to Law No. 161 of October 17, 2017, the order dismissing the application for revocation of the seizure preliminary to confiscation is unappealable or may be challenged by means of an enforcement incident or through an appeal to the court of appeal or the Court of Cassation in accordance with the general rules set forth in Article 10 of Legislative Decree No. 159 of 2011”.
1.2.– This having been stated, the referring United Sections dwell upon the interpretive conflict they are called upon to resolve.
According to a first line of case law, an opposition in the forms of the enforcement incident pursuant to Article 667, paragraph 4, of the Code of Criminal Procedure before the same judge who issued it would be admissible against the order denying the request for revocation of the seizure (reference is made, ex aliis, to Court of Cassation, Second Criminal Section, Order of January 16 – February 1, 2018, No. 4729).
According to an opposing line of case law, however, neither an enforcement incident nor an appeal pursuant to Article 27 of the Anti-Mafia Code would be admissible against the order in question, as the latter is precluded by the principle of strict legality (tassatività) of means of challenge referred to in Article 568 of the Code of Criminal Procedure (reference is made, ex aliis, to Court of Cassation, First Criminal Section, Judgment of January 14 – May 4, 2022, No. 17489).
The referring United Sections declare that they share this second orientation, in light precisely of the aforementioned principle referred to in Article 568 of the Code of Criminal Procedure, applicable pursuant to Article 680, paragraph 3, of the Code of Criminal Procedure to the matter of proposing and ruling on appeals relating to security measures, the rules of which are – in turn – referred to in general terms by Article 10, paragraph 4, of the Anti-Mafia Code with respect to the proposing and ruling on appeals in matters of prevention measures. The court a quo observes in this regard that Law No. 161 of October 17, 2017 (Amendments to the code of anti-mafia laws and prevention measures, pursuant to Legislative Decree No. 159 of September 6, 2011, to the penal code and to the implementing, coordinating and transitional provisions of the code of criminal procedure and other provisions. Delegation to the Government for the protection of labor in seized and confiscated companies), by Article 6, amended the rules set forth in Article 27 of the Anti-Mafia Code, adding to the (already provided for) hypothesis of the appeal against the revocation order of the seizure, the newly minted ones of the appeal against the application and the denial of the seizure itself, without however providing for the one – in discussion here – of the denial of the application for revocation.
Such a restrictive interpretation would be corroborated by paragraph 2 of Article 27, which extends the rules of Article 10 of the Anti-Mafia Code to appeals "against said orders”, i.e., against the (only) orders strictly indicated in paragraph 1. It would also find confirmation in paragraph 3, which provides for special rules for the enforceability of (only) the revocation orders of the seizure, deferring it by ten days compared to their communication to the parties and granting the public prosecutor the power to request the court of appeal to suspend it.
The unappealability of the orders denying the revocation of the seizure would therefore be the result of a conscious choice by the legislature, which deemed it appropriate to protect the interests of the private parties who are recipients of the seizure solely through the appeal of the genetic order of the precautionary encumbrance, and not – instead – of the one that dismisses the application for revocation of a seizure already adopted, the latter resulting in the mere temporary maintenance of a constraint of unavailability pending the ruling on the confiscation request, which is also appealable by the interested private party.
On the other hand, precisely because the unappealability of the dismissal of the revocation application is the result of a conscious legislative choice, nor should an enforcement incident pursuant to Article 667, paragraph 4, of the Code of Criminal Procedure be considered admissible, since such a remedy was introduced, in matters of preventive seizure, via praetorian law to remedy the original lack of an autonomous appeal against the genetic order itself, which is instead ensured today by the amended Article 27, paragraph 1, of the Anti-Mafia Code.
Consequently, in the referral order itself, the United Sections state the following principle of law: "[i]n matters of challenging prevention measures, following the intervening amendment of Article 27 of Legislative Decree No. 159 of September 6, 2011, pursuant to Law No. 161 of October 17, 2017, the order dismissing the application for revocation of the seizure preliminary to confiscation is unappealable and the remedy of opposition provided for by Article 667, paragraph 4, of the Code of Criminal Procedure is not available against said order”.
1.3.– The United Sections observe, at this point, that such an interpretive outcome would determine a "disparity of treatment between the interested third party and the public prosecutor”, which would affect "the internal coherence of the forms of protection recognized to the parties of the patrimonial prevention proceedings, as well as the further parameters” invoked; and they therefore wonder whether a constitutionally oriented reading of the censured provision is practicable.
It would seem to favor such an interpretation, observes the court a quo, a ruling by the United Sections themselves (Judgment of September 26 – November 19, 2019, No. 46898), which had deemed admissible "an analogical-type-adjusting interpretation of Article 27, paragraph 1, of Legislative Decree No. 159 of 2011 to fill the regulatory gaps found with reference to the appeal against the denial of the application for judicial control requested pursuant to Article 34-bis, paragraph 6”, of the Anti-Mafia Code. Such an analogical interpretation should, however, be excluded in relation to the ruling dismissing the application for revocation of the seizure, given the unambiguous literal tenor of the provision, which would render contra legem a constitutionally compliant reading aimed at expanding the range of appealable orders beyond those expressly listed therein (on the insuperability, for the ordinary judge, of the unambiguous literal tenor of the provision to be interpreted, reference is made to Judgments No. 148 and No. 5 of 2024 of this Court, as well as, with specific reference to procedural remedies, reference is made to Court of Cassation, United Sections in Criminal Matters, Judgment of January 19 – July 27, 2023, No. 32938, where it is stated that "[t]he constitutional principle referred to in Article 101, second paragraph, of the Constitution [...] introduces a principle of ‘procedural legality’ which translates [...] into the judge’s fidelity to the literal tenor of the regulatory provision as a fundamental canon of interpretation to which one must adhere”). And this especially in procedural matters, where the needs for certainty are "particularly felt”, making the additive rulings of this Court a functional remedy for them (reference is made to Judgment No. 45 of 2023).
1.4.– The questions presented would, furthermore, be relevant in the specific case, as the dispute concerns a declaration of inadmissibility pronounced by the Court of Appeal of Rome on an application for revocation of the seizure preliminary to confiscation, and it being in any case indubitable that the censured provisions are applicable in the proceedings a quo, if only under the profile of the argumentative path that should support the decision (reference is made to Judgment No. 135 of 2024 of this Court).
1.5.– Finally, the questions would not be manifestly unfounded.
First of all, it would be "uncontroversial that if the prevention judge grants the request for revocation presented by the third party, the public prosecutor may challenge the order with the procedural remedy recognized by Article 27, paragraphs 1 and 2, of the Anti-Mafia Code. Conversely, if the prevention judge deems not to grant the application for revocation of the seizure advanced by the third party, the latter has no tools suitable for removing the rejecting order pronounced against him”.
Such a "procedural asymmetry” would assume "a high negative significance, given that – until it is absorbed by the confiscation, which occurs only with the finality (passaggio in giudicato) of the order ordering it – the title placed at the foundation of the dispossession of the private party consists solely of the seizure” (reference is made to Court of Cassation, United Sections in Criminal Matters, Judgment of July 20 – October 19, 2017, No. 48126); "[a] precautionary measure, the latter, which, therefore, is capable of significantly impacting, for a considerable period of time, the full availability of the assets by the applicant”.
Nor would the autonomous appealability of the confiscation be sufficient to adequately protect "the interest of the private party to obtain the immediate removal of the provisional encumbrance, which, even after the 2017 reform intervention, has remained devoid of a remedy suitable for challenging the denial of the revocation of the seizure”. This would also highlight a profile of violation of the right of defense referred to in Article 24 of the Constitution.
The non-manifest unfoundedness of the questions would also emerge from the principles enunciated by this Court in Judgment No. 24 of 2019, in which it was emphasized how patrimonial prevention measures "heavily impact property and economic initiative rights, protected at the constitutional level (Articles 41 and 42 of the Constitution) and conventional level (Article 1 of Prot. addit. ECHR)”. From this would derive the requirement that "the interested third party, as the recipient of an ablative measure that significantly impacts his private sphere, [be] placed in a position to be able to exercise his defenses without unjustified and unreasonable limitations. Such procedural limitations, in fact, would conflict, at the constitutional level, with Articles 3, second paragraph, 24, first and second paragraph, and 111, first and second paragraph, of the Constitution, and at the conventional level, with Article 6, para. 1, ECHR”.
Precisely the impact of patrimonial prevention measures on these constitutional rights of the individual would highlight the "need to guarantee, in compliance with the principle of effectiveness of the right of defense, the fullness of procedural powers to the third party in the patrimonial prevention proceedings”, albeit "within the limits of his prerogatives”, aimed at "exclusively claiming the actual ownership” of the assets affected by the measure (reference is made to Court of Cassation, United Sections in Criminal Matters, Judgment of March 27 – September 5, 2025, No. 30355).
Conventional case law would also converge in the same direction, from which it would be evident that "interested third parties, whose assets are affected by a patrimonial prevention measure, provisional or definitive, must be placed in a position to be able to exercise their rights of defense without unjustified and unreasonable limitations” (reference is made to European Court of Human Rights, Judgments of January 21, 2025, Garofalo and Others v. Italy and September 25, 2025, Isaia and Others v. Italy).
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 event unfounded.
2.1.– On the point of admissibility, the intervenor observes that the anti-mafia code provides for a first form of protection of the third party within the framework of the seizure procedure, through intervention at the hearing referred to in Article 23 of the Anti-Mafia Code, in which it is possible for him to "assert his defenses and obtain, if the judge does not order confiscation, the restitution of the assets, provided that the hypothesis of fictitious registration does not apply”, or the liquidation of his right. Once confiscation has been ordered, "even if not definitive”, his complaints should instead be asserted "through the procedures provided for by Articles 52 et seq. of the anti-mafia code”.
In the present case, the third party would not have timely requested to intervene in the proceedings, but would have initially initiated "a non-compliant remedy, through the complaint against the eviction order rendered by the delegated judge”. The Court of Appeal of Rome, "without being able to remedy such procedural inertia”, would therefore have declared inadmissible the subsequent request for revocation of the seizure, "because the confiscation decree had by then intervened”.
In this context, the questions would be devoid of relevance in the main proceedings, "due to the fact that, at the time of the court a quo’s decision, the seizure had lost autonomous effectiveness such that even a possible upholding of the constitutional legitimacy question could no longer impact in any way on the concluded procedure, albeit not in a definitive manner and in which the protection of the third party is ensured through the tools provided for by Articles 52 et seq. of the anti-mafia code”.
2.2.– On the merits, the questions would be unfounded.
To begin with, there would be no denounced violation of Articles 3 and 24 of the Constitution, because "[t]he system outlined by the anti-mafia code, although oriented towards prioritizing the effectiveness of patrimonial ablation, nevertheless admits the protection of the third party in the presence of a fully transparent, lawful and blameless position, operating a balancing act between the public interest in removing illicit assets and the protection of the reliance and good faith of third parties extraneous to criminal activity”.
In particular, the legislature would have devised, in Article 23 of the Anti-Mafia Code, a specific rule "aimed at ensuring forms of protection for third-party owners or co-owners of seized assets or who claim rights in rem as security over seized assets”. Such a rule would favor "the procedural involvement of the third party right from the precautionary phase, albeit without sanctioning non-compliance in terms of nullity”. The third party who was not summoned in the precautionary phase would indeed retain the possibility of asserting his rights, "to demonstrate good faith and blameless reliance”, through the tools provided for by Articles 52 et seq. of Legislative Decree No. 159 of 2011.
The system outlined by Legislative Decree No. 159 of 2011 would therefore ensure the third party "full protection, in each procedural phase”.
The State Attorney General’s Office also highlights that the ablative tool, even if not definitive, would stand "on an autonomous level with respect to other hypotheses of confiscation given that, once the court’s decree has intervened, the title for the patrimonial sacrifice [would] no longer [be] the seizure, by now absorbed by said decree”. The court a quo’s reference to the principle of law affirmed by the United Sections with Judgment No. 48126 of 2017 would therefore be improper, as it was enunciated with reference to other forms of confiscation, different from preventive confiscation, with respect to which it would be possible for the third party, who remained a stranger to the merits process, to put forward possible challenges against the precautionary measure and ask the trial judge, before the ruling has become irrevocable, for the restitution of the asset as well as, in case of denial, to appeal before the tribunal of review (tribunale del riesame).
The absence of a similar challenge power against the denial of revocation of the preventive seizure would not determine "an unreasonable disparity of treatment and a disproportionate compression of the right of defense and constitutionally guaranteed patrimonial rights”, because – once the parties are recognized the power of challenge with respect to the order applying or denying the seizure – the choice to ensure to the public prosecutor alone, as the driving party of the prevention procedure, immediate protection in the face of the order revoking the seizure, in order to prevent the guarantees of the asset from being lost, could not be considered unreasonable.
This is based both on the different position of the public prosecutor compared to that of the third party, who – once the seizure has intervened – would simply see "his protection deferred to the moment when confiscation is ordered”, and on the "limited and temporary scope” of the decision rejecting the application for revocation of the seizure, which would not directly impact "the third party’s right of property” and would determine a mere "transitional maintenance of the constraint of unavailability – which intervened as a result of a previous seizure order, autonomously appealable – which lasts until the conclusion of the patrimonial prevention proceedings whose final confiscation order will be autonomously appealable”.
3.– F. R., the appellant party in the main proceedings, appeared in the proceedings, following and endorsing the arguments of the referral order and requesting the granting of the questions presented.
4.– T. S., I. S., and G. S. intervened in the proceedings as legitimate heirs of V. S. and interested third parties, likewise requesting the granting of the questions.
Their intervention was declared inadmissible by Order No. 113 of 2026, for the reasons illustrated therein.
The Law in Essence
5.– The United Sections in Criminal Matters of the Court of Cassation have raised questions concerning constitutional legitimacy, with reference to Articles 3, 24, 41, 42, 111, and 117, first paragraph, of the Constitution – the latter in relation to Article 6 ECHR and Article 1 Prot. addit. ECHR –, of Article 27, paragraphs 1 and 2, of the Anti-Mafia Code, "insofar as it does not provide for the appeal of the order denying the request for revocation of the seizure preliminary to preventive confiscation”.
Article 27 of the Anti-Mafia Code governs communications and appeals regarding orders concerning preventive seizure and confiscation. In particular, paragraph 1 lists a series of orders that must be communicated "without delay” to the Prosecutor General at the Court of Appeal, the Public Prosecutor, and the "interested parties”, while paragraph 2, first period, extends the provisions set forth in Article 10 of the same code to appeals against said orders. This latter rule provides – inter alia – that the appeal of personal prevention measures, "also on the merits”, may be proposed to the Court of Appeal by the Public Prosecutor, the Prosecutor General at the Court of Appeal, as well as by the "interested party” and his counsel (paragraph 1), within thirty days from the communication of the order (paragraph 2). Against the decree of the Court of Appeal, the possibility of filing an appeal to the Court of Cassation for violation of law is then provided (Article 10, paragraph 3), within ten days from the communication of the order.
Among the orders that must be communicated pursuant to Article 27, paragraph 1, of the Anti-Mafia Code and that, therefore, can be challenged pursuant to the combined provisions of Article 27, paragraph 2, and Article 10 of the same code, three specifically concern the seizure governed by the preceding Article 20: (a) the order ordering its application; (b) that of "denial” of the relative application; and (c) that of "revocation” of the seizure itself. The first order can evidently be challenged by the interested party affected by the seizure, whether he is the same subject called the "proposed person” (proposto) – i.e., the person targeted by evidence pursuant to Article 4 of the Anti-Mafia Code – or a third party who nevertheless has an interest in challenging the measure, claiming to be the owner of the seized assets, or of some of them. The second and third orders can instead be challenged by the public party whose seizure request was not granted (second hypothesis), or whose seizure was revoked, ex officio or upon granting an application by the interested party himself presented to the judge who issued the order (third hypothesis).
The list referred to in Article 27, paragraph 1, of the Anti-Mafia Code does not, however, include the hypothesis of the order rejecting any application for revocation of the seizure proposed by the interested party to the same judge who issued it. It is precisely on this gap, deemed insuperable through interpretation, that the complaints of the referring United Sections focus, assuming that the omitted provision in question would determine a vulnus to the rich series of national and conventional parameters invoked.
Although the specific case that gave rise to the proceedings a quo concerns the position of a third party – distinct, therefore, from the "proposed person”, identified pursuant to Article 16 of the Anti-Mafia Code –, and although the arguments of the referring United Sections are primarily calibrated on the position, precisely, of third parties, this Court considers that the questions under examination concern, in general terms, the position of any "interested party” affected by the seizure order, including the "proposed person” himself. A distinction between the position of the latter and that of all other interested parties would end up, moreover, creating unreasonable disparities of treatment between subjects whose rights have in any case been impacted by the seizure order aimed at subsequent confiscation.
Ultimately, the core issue that this Court is called upon to resolve today is whether a rule that does not grant the "interested party” (or his counsel) the standing to appeal before the superior court the decision of the judge who, after issuing the seizure, has rejected an application for its revocation, is constitutionally sustainable – against the yardstick of the invoked parameters.
6.– The State Attorney General’s Office raises an objection of inadmissibility of the questions by reason of their alleged lack of relevance. The objection is based on two distinct lines of argument, albeit largely overlapping in the fabric of the intervention brief.
6.1.– First of all, the protection of the third party would already be ensured today by remedies other than the appeal pursuant to Article 27 of the Anti-Mafia Code.
On the one hand, intervention at the hearing referred to in preceding Article 23 would come into consideration, which allows third-party owners or co-owners of seized assets, as well as third parties claiming rights in rem or personal rights of enjoyment or, further, security rights in rem over the seized assets, to "carry out their deductions with the assistance of counsel, as well as request the acquisition of any element useful for the purposes of the decision on confiscation”. On the other hand, once confiscation has been ordered, the protection of the third party’s rights would be ensured by the remedies provided for by Articles 52 et seq. of the Anti-Mafia Code.
These arguments, however, do not suffice to support an objection of irrelevance of the questions raised.
On this point, it is sufficient to consider that the proceedings a quo discuss the admissibility of the appeal against the order by which the Court of Appeal of Rome rejected the application for revocation of the seizure proposed by the appellant himself. The referring United Sections, with an argument that is anything but implausible, concluded that such an appeal is not permitted by Article 27 of the Anti-Mafia Code, nor by any other provision in force. Consequently, they would have to declare the appeal itself radically inadmissible, unless this Court deems the questions raised to be well-founded. This makes the relevance of the latter evident.
If, then, the rights of the owners of the seized assets or of those who in any case claim rights over them are – even without the remedy whose absence the referring Court of Cassation complains of – already sufficiently protected by the faculty to intervene in the prevention proceedings pursuant to Article 23 of the Anti-Mafia Code or by the remedies subsequent to confiscation provided for by Article 52 of the same code, this is an aspect that evidently pertains to the merits of the questions, and which must be addressed in that context (infra, 7.5.2.).
6.2.– Secondly, the State Attorney General’s Office objects that the seizure discussed in the main proceedings would in any case have lost autonomous effectiveness following the intervening confiscation of the assets originally seized. Hence the lapse of the relevance of the questions, given that even an upholding ruling by this Court could no longer impact a procedure that has by now concluded, with respect to which the only protection available to the third party – according to the state defense – would by now be that provided for by Articles 52 et seq. of the Anti-Mafia Code.
Nor does this argument hit the mark.
Article 27, paragraph 2, second period, of the Anti-Mafia Code provides, inter alia, that orders disposing of the confiscation of seized assets "become enforceable upon the finality (definitività) of the relative rulings”. The referring United Sections acknowledge, in the reconstruction of the facts, that – as of the date of the referral order – the Court of Rome had already ordered the confiscation of the seized assets, including those at issue in the main proceedings; but they also take care to specify that the confiscation decree had been challenged by the proposed person and other interested third parties, and that the appellate proceedings were still pending. The court a quo therefore proceeds from the evident interpretive presupposition that the title placed at the foundation of the dispossession of the asset, against which the interested party rebels, is still the original seizure order, which does not lapse until the ruling on confiscation becomes definitive.
Such an interpretive presupposition certainly passes the test of non-implausibility of the reasoning on relevance carried out by this Court (most recently, Judgments No. 143 and No. 130 of 2026, both at points 7.1.). And this both in light of the literal wording of the aforementioned Article 27, paragraph 2, of the Anti-Mafia Code; and in light of the correspondence of such an interpretive presupposition to the general rules prevailing in criminal proceedings, where case law also deems the remedy of appeal available against orders for preventive seizure of assets that have already been subject to confiscation, whenever the latter has not yet become definitive (thus Court of Cassation, United Sections in Criminal Matters, Judgment No. 48126 of 2017, cited by the referral order; in a conforming sense, more recently, Sixth Criminal Section, Judgment of October 25, 2023 – January 30, 2024, No. 4003).
Nor could the possible subsequent finality of the confiscation of the assets, pending the constitutionality incident, determine the lapse of the requirement of relevance of the questions. In fact, in light of the constant case law of this Court, the requirement of relevance must be evaluated in light of the factual and legal situation existing at the time of the referral order (ex multis, Judgments No. 141 of 2025, point 3 of the Law in Essence, and No. 120 of 2024, points 2.1. and 2.2. of the Law in Essence).
In any event, as correctly noted by the referral order itself, the questions raised would remain relevant even if, in the proceedings a quo, the appeal were to be declared inadmissible or dismissed for reasons other than the inadmissibility of an appeal against the order rejecting the application for revocation of the seizure. The examination of these different reasons, in fact, is currently precluded by the censured provision as interpreted by the referring United Sections themselves, since the radical inadmissibility of the appeal proposed by the appellant derives therefrom. The upholding of the questions raised by this Court would therefore in any case influence the motivational path of the court a quo: which suffices to establish the relevance of the questions (in this sense, ex multis, Judgments No. 151, No. 143, No. 125, and No. 55 of 2026, respectively points 5.2., 7.1., 4.4., and 3.6.; No. 134 of 2025, point 3.1. of the Law in Essence, and No. 129 of 2025, point 2 of the Law in Essence).
7.– On the merits, the questions raised with reference to Articles 3, first paragraph, and 111, second paragraph, of the Constitution are well-founded.
7.1.– The pivot of the referring United Sections’ reasoning is the asymmetry between the procedural position of the public prosecutor, who can challenge the judge’s decision to revoke the previously issued seizure, and that of the third party (or rather the "interested party”, a formula that also includes the "proposed person” himself, as specified supra, 5), who is instead precluded from appealing the dismissal of the application for revocation of the order itself.
In the court a quo’s perspective, such asymmetry simultaneously determines an unreasonable disparity of treatment between homogeneous situations, with a consequent vulnus to the principle of equality referred to in Article 3 of the Constitution, as well as a violation of the principle of equality of arms in proceedings referred to in Article 111, second paragraph, of the Constitution.
7.2.– As for the first parameter, this Court recently emphasized that, in the "equality judgment in the strict sense (understood, that is, as a comparison between legal situations, not in its projection of reasonableness evaluation)”, not only the prohibitions explicitly listed by Article 3, first paragraph, of the Constitution are relevant, as well as more general profiles of systemic coherence and consideration of the "not undeserving of constitutional protection” purposes of the censured provision and of the one possibly assumed as the tertium comparationis; but also, and above all, the pertinence of the comparison between the disciplines or situations considered by the referring judge: pertinence which is, in turn, calibrated on the "specific constitutional rights, duties or interests” involved by such disciplines and situations (Judgment No. 54 of 2026, point 9.1.).
The questions now under examination therefore prompt this Court to evaluate the pertinence of the comparison between the two situations compared, in relation to the entire bundle of constitutional rights and interests impacted by patrimonial prevention measures, and specifically by the seizure aimed at the confiscation referred to in Article 20 of the Anti-Mafia Code.
7.3.– A structurally analogous evaluation is prompted of this Court in relation to the parameter referred to in Article 111, second paragraph, of the Constitution, under the specific profile of the "conditions of equality” (or, according to a different and very widespread formulation, the "equality of arms”) between the procedural parties: a principle applicable to any jurisdictional proceeding, including prevention proceedings.
In matters of criminal proceedings, Judgment No. 34 of 2020 – most recently – extensively recapitulated the case law of this Court on "equality of arms” between the parties.
Referring for all details to that reconstruction, suffice it to recall here that such a principle "does not necessarily entail identity between the procedural powers of the public prosecutor and those of the defendant: since a disparity of treatment may ‘result justified, within the limits of reasonableness, both by the peculiar institutional position of the public prosecutor, and by the function entrusted to him, and by requirements connected with the correct administration of justice’ (Judgments No. 320, No. 26 of 2007 and, in the same sense, No. 298 of 2008 [...])” (Judgment No. 34 of 2020, point 3.1. of the Law in Essence).
Also with respect to the parameter referred to in Article 111, second paragraph, of the Constitution, it is therefore necessary to verify whether the asymmetry between the procedural powers of the public prosecutor and the private individual targeted by the seizure aimed at subsequent confiscation can in any case be deemed reasonable, in relation to the set of constitutional rights and interests at stake in the matter of prevention.
7.4.– This Court has dedicated extensive analyses, in Judgments No. 24 of 2019 and No. 33 of 2018, respectively to so-called preventive confiscation – to which the seizure ex Article 20 of the Anti-Mafia Code is functional – and to so-called enlarged confiscation, which is indeed applicable by the criminal judge with the judgment of conviction, but on the basis of objective prerequisites largely coinciding with those in the presence of which confiscation can be ordered in prevention proceedings.
Judgment No. 24 of 2019 recalled in particular how such measures constitute "species of a single genus”, represented by the " ‘confiscation of assets of suspected illicit origin’ – that is, ascertained through a legal scheme of a presumptive nature –”. Such confiscation "represents a tool for combating profit-generating crime now widely widespread at the international level[,] characterized ‘both by a loosening of the relationship between the object of ablation and the individual crime, and, above all, by a weakening of the evidentiary burdens resting on the prosecution’”, as a function of the need to "overcome the limits of effectiveness of ‘classic’ criminal confiscation: limits linked to the need to demonstrate the existence of a link of pertinence – in terms of instrumentality or derivation – between the assets to be confiscated and the individual crime for which a conviction is pronounced. The difficulties that such evidence encounters have meant that ‘traditional’ confiscation proved unsuitable for adequately combating the phenomenon of the accumulation of illicit wealth by crime, and specifically organized crime: a phenomenon particularly alarming, in view of both the possible re-employment of resources for the financing of further illicit activities, and their investment in the legal economic system, with distorting effects on the functioning of the market’ (Judgment No. 33 of 2018)” (Judgment No. 24 of 2019, point 10.3. of the Law in Essence).
With specific reference to preventive confiscation, Judgment No. 24 of 2019 then excluded that this measure has a sanctioning-punitive nature, recognizing instead a merely restorative function of the situation in which the subject affected by it would have found himself in the absence of the illicit acquisition of the asset. From this it was deduced that the constitutional and conventional statute of criminal liability does not apply to the measure, and to the relative application procedure (point 10.4.1. of the Law in Essence), in conformity moreover with what was held by the constant case law of the ECtHR (most recently, with reference precisely to the Italian regime of preventive confiscation, Garofalo Judgment, paragraphs 99-140, and therein for precise references to the conforming relevant case law of the ECtHR itself, concerning measures similar to preventive confiscation or enlarged confiscation provided for by other States parties to the Convention).
Nonetheless, Judgment No. 24 of 2019 also remarked that seizure and preventive confiscation are still "measures that heavily impact property and economic initiative rights, protected at the constitutional level (Articles 41 and 42 of the Constitution) and conventional level (Article 1 of Prot. addit. ECHR)”, emphasizing in particular the need that their application be "ordered following proceedings that – while not necessarily having to conform to the principles that the Constitution and conventional law specifically dictate for criminal proceedings – must nonetheless respect the general canons of every ‘fair’ trial guaranteed by the law (Articles 111, first, second, and sixth paragraph, of the Constitution, and 6 ECHR, in its ‘volet civil’), ensuring in particular full protection to the right of defense (Article 24 of the Constitution) of the person against whom the measure is requested” (point 10.4.3. of the Law in Essence).
7.5.– It is therefore in relation to this complex fabric of interests and rights of constitutional rank involved by the measure that the legislature’s choice to provide for a differentiated treatment for the public prosecutor and the private individual must be evaluated, in relation to the faculty to challenge orders that have ruled, respectively, on the revocation or confirmation of a previously adopted seizure order.
The arguments put forward by the State Attorney General’s Office in support of the constitutional legitimacy of this differentiated rule move, upon closer inspection, along two distinct itineraries.
7.5.1.– A first line of argument essentially assumes the non-unreasonableness of the denounced asymmetry, in relation to the different effects of the seizure revocation order (challengeable by the public prosecutor) and the order rejecting the application for revocation of the seizure itself (not challengeable by the private individual).
The seizure revocation order, by determining the lapse of the precautionary constraint, would modify the legal reality with respect to the genetic order, creating an immediate (and potentially irreparable) danger of concealment or in any event dispersion of the asset. Precisely to neutralize such a risk, the legislature reasonably granted an appellate remedy to the public prosecutor, while providing for the further guarantee of the ex lege suspension of the enforceability of the revocation pending the term for appeal to allow him, within the same term, to ask the court of appeal to extend the suspension until the definitive ruling regarding the seizure (Article 27, paragraph 3, of the Anti-Mafia Code, the rules of which are extended by subsequent paragraph 3-bis – mutatis mutandis – to the case of appeal to the Court of Cassation against the revocation order issued by the court of appeal).
Conversely, the rejection of the revocation request would entail the mere maintenance of the status quo ante – represented by the already ordered seizure –, which would simply result in the deferral of the private individual’s protection to the moment when the court orders the confiscation of the asset, by an order in turn appealable pursuant to paragraphs 1 and 2 of censured Article 27.
The argument was further resumed and developed during the public hearing by the representative of the State Attorney General’s Office, who particularly insisted on the merely temporary and instrumental nature of the seizure, as opposed to the confiscation order which – alone – would be capable of determining the ablation of the asset and the consequent impact on rights, and against which the private individual in any case disposes of full jurisdictional protection.
7.5.2.– The second line of argument followed by the State Attorney General’s Office aims, instead, to demonstrate that the private individual already disposes of other tools capable of ensuring effective protection of his rights in the face of the seizure order, without the need to wait for the adoption of confiscation.
In particular, the state defense repeatedly recalled, in its intervention brief, Article 23 of the Anti-Mafia Code. Pursuant to paragraph 2 of this provision, third parties who turn out to be owners or co-owners of the seized assets (or who claim rights in rem or personal rights of enjoyment as well as security rights in rem over the seized assets), are summoned by the court, in the thirty days following the execution of the seizure, to intervene in the proceedings by a reasoned decree containing the scheduling of the hearing in chambers. Subsequent paragraph 3 allows interested third parties to carry out their deductions at that hearing, with the assistance of counsel, and to request the acquisition of any element useful for the purposes of the decision on confiscation, including the formation of adversarial testimonial evidence.
The third party whose rights were prejudiced by the seizure order would in any case dispose, once confiscation has intervened over the assets, of the remedies provided for by Articles 52 et seq. of the Anti-Mafia Code.
7.6.– In this Court’s view, however, none of these arguments is capable of exempting the rule in question from the censure of unreasonableness.
7.6.1.– Regarding the first order of arguments, it must first be remarked – to avoid any misunderstandings – that the denounced asymmetry between the public and private parties is real, not merely apparent; and therefore requires to be supported by adequate justification on the constitutional plane. Contrary to what the State Attorney General’s Office seems to implicitly suggest, standing to appeal is today granted by law to the public prosecutor not only with respect to orders that, like the one ordering seizure or revoking it, modify the legal reality, respectively creating or removing a constraint on the seized assets; but also towards the order rejecting the initial seizure application, which leaves the status quo ante unaltered.
The specific profile denounced by the referral order is, however, that the public party is today granted the right to appeal all orders in which it is unsuccessful (both the rejection of its initial application and the revocation of the previously ordered seizure); while the private individual can only challenge the genetic seizure order, but not the subsequent order rejecting his application for revocation of the seizure itself. In the face of the revocation application presented by the private individual, in short, the public prosecutor’s failure leaves open for the latter the possibility to appeal, with the further guarantee of the suspension of the revocation order mentioned above; whereas in the reverse hypothesis, in which the private individual remains unsuccessful, he disposes of no appellate remedy.
7.6.2.– Now, while the legislature’s concern to avoid the danger of concealment or dispersion of seized assets, ensuring a timely reassessment of the judge’s decision favorable to the private individual by an appellate court, is certainly understandable, the legislative choice to deny, instead, the possibility of vesting the same appellate court with a reassessment of the opposite decision, in light of the arguments and documentation supporting the revocation request not granted by the first-instance judge, appears difficult to justify.
To the legitimate interest of the legal system to ensure that assets of suspected illicit origin do not remain in the availability of the recipient of the measure – an interest to which the attribution to the public prosecutor of standing to appeal the revocation order, vesting a superior judge with the issue, is functional – there corresponds in fact the right of defense of the interested private individual, as well as, on the substantive plane, the need to ensure full and effective protection to the rights compressed by the seizure order, among which first and foremost the right of property and the right to carry out a business activity. Therefore, once the legal system ensures protection to the former interest, it becomes objectively problematic to deem a lack of corresponding protection to the second bundle of interests justified, which moreover rise to the level of constitutional rights.
7.6.3.– Nor can the compression of the private individual’s rights determined by the seizure order be considered of minor significance, in the face of the competing public interests at stake.
It is certainly true that – as observed by the State Attorney General’s Office – such compression is provisional and interim, operating pending the definitive confiscation order, which must today intervene within eighteen months from the seizure, extendable by no more than six months in case of complex investigations or significant patrimonial compendiums (Article 24, paragraph 2, of the Anti-Mafia Code). However, such a lapse of time – as objected by the party’s counsel during oral argument – is amply sufficient to produce serious damage to the private individual, especially when the seized assets are indispensable for the exercise of a work or entrepreneurial activity. Two years of inactivity can, in fact, decree the death of a business.
7.6.4.– Nor, again, is the second line of argument supported by the state defense persuasive, aimed at underlining the existence of remedies already suitable for ensuring the protection of the interested party allegedly prejudiced by the seizure order.
First of all, it is certainly true that third parties who turn out to be owners or co-owners of the seized assets, or who claim rights in rem or personal rights of enjoyment as well as security rights in rem, have the possibility to intervene in the proceedings pursuant to Article 23 of the Anti-Mafia Code, and to carry out their deductions and defenses in that venue, on a par with the "proposed person”. However, this faculty only allows defenses to be carried out before the same judge who issued the order, and not instead before a different judge, as in the case of an appeal. Its effectiveness with respect to the protection of the private individual’s right of defense is therefore not comparable to that of the remedy whose introduction the present questions aim at.
Without counting that the failure to communicate the order to the third party and the third party’s failure to participate in the prevention proceedings, according to the consolidated case law of the Court of Cassation, entail no procedural sanction, being considered mere irregularity not producing nullity; with the consequence that the pretermitted third party (who in concrete did not intervene) today retains solely the possibility of promoting an enforcement incident once the confiscation order has become definitive (Cass., criminal joint sections, No. 30355 of 2025; in the same sense, Fifth Criminal Section, Order of October 7-22, 2025, No. 34463, which, in the proceedings a quo, referred the appeal to the United Sections).
As for, then, the remedies for the protection of the third party governed by Articles 52 et seq. of the Anti-Mafia Code, they are provided exclusively downstream of the confiscation order: and therefore are not in themselves suitable for ensuring protection to the third party’s rights already impacted by the precautionary order, for a lapse of time that – as observed a moment ago – is amply sufficient to produce very serious and potentially irreparable damage. Such remedies, moreover, are solely functional to the protection of rights other than property, which is instead safeguarded through the tools of intervention in the prevention proceedings and appeal, referred to, respectively, in Articles 23 and 27 of the Anti-Mafia Code.
7.6.5.– From the specific angle of vision of Article 111, second paragraph, of the Constitution, finally, this Court has repeatedly found itself evaluating the reasonableness of asymmetries in the attribution of the power of appeal between the public and private parties in criminal proceedings.
In conducting the relative analysis, as the already cited Judgment No. 34 of 2020 highlighted, constitutional case law has always taken into account the fact that "[c]riminal proceedings are characterized [...] by a ‘structural’ asymmetry between the two main antagonists. The differences that characterize their respective positions, ‘correlated to the different operating conditions and the different interests of which, also in light of the constitutional precepts, the parties themselves are bearers – the one being a public body acting in the exercise of power and for the protection of collective interests; the other a private subject defending his fundamental rights (first and foremost, that of personal freedom), upon which a possible judgment of conviction would impact – prevent holding that the principle of equality must (and can) indefectibly translate, within the framework of every single segment of the procedural iter, into an absolute asymmetry of powers and faculties [...]’ (Judgment 26 of 2007)” (Judgment No. 34 of 2020, point 3.1. of the Law in Essence).
This entails, in particular, that the power of appeal on the merits of the judgment of conviction by the public prosecutor – a power that cannot be considered a necessary projection of the principle of mandatory prosecution (again, Judgment No. 34 of 2020, point 3.2. of the Law in Essence, and therein punctual references to prior case law) – presents broader "yielding” margins, in the face of competing requirements, compared to those characterizing the symmetrical power of the defendant (Judgment No. 26 of 2007, recalled again by Judgment No. 34 of 2020, ibidem). A power, the latter, directly correlated "to the fundamental value expressed by the right of defense (Article 24 of the Constitution), which increases its resistance strength in the presence of solicitations of the opposite sign (Judgments No. 274 of 2009, No. 26 of 2007, and No. 98 of 1994)” (Judgment No. 34 of 2020, ibidem).
This Court holds that the same criteria must also apply to prevention proceedings. These too are characterized, in fact, by the position of "undoubted advantage” of the public prosecutor, who can use against the private individual the entire range of investigative tools provided for by the Code of Criminal Procedure, including those of a "coercive” and "invasive” nature, which find no correspondence on the defense side (again, Judgment No. 34 of 2020, point 3.7. of the Law in Essence, with reference to criminal proceedings).
On the basis of these premises, a rule that even grants a position of substantial favor to the public party, which is recognized a power of appeal against the seizure revocation requested by the private individual, while the private individual is not granted the right to challenge the order rejecting his application, cannot fail to appear strongly dissonant with the constitutional principle under examination.
7.6.6.– Such dissonance appears all the more evident when comparing the censured rule with the regime of appeals against preventive seizures within criminal proceedings: a regime that provides both for the remedy of review (riesame) against the genetic order (Article 322 of the Code of Criminal Procedure), and the further remedy of appeal (Article 322-bis of the Code of Criminal Procedure) – exercisable, inter alia, by the defendant and the person to whom things were seized or who would have the right to their restitution – against "orders in matters of preventive seizure”, including those rejecting applications for revocation (total or partial) of the genetic order.
This regime cannot fail to be considered by this Court as demonstrating the need – felt in the criminal procedural field by the legislature itself, starting already with Legislative Decree No. 12 of January 14, 1991 (Supplementary and corrective provisions to the criminal procedural discipline and related norms), which introduced Article 322-bis of the Code of Criminal Procedure – to ensure, in each concrete case, penetrating and effective jurisdictional protection of the constitutional rights of persons affected by seizure orders, despite the equally relevant need to protect the public interests handled, respectively, by criminal proceedings and patrimonial prevention proceedings. Every seizure order – whatever the nature of the proceedings within which it is adopted – entails, in effect, very incisive restrictions on the constitutional rights of the interested parties, which require effective and tendentially uniform protection throughout the legal system, in the absence of compelling reasons to the contrary, which are not discernible in the matter under examination.
7.6.7.– Nor, finally, could the need to avoid the risk of a multiplication of appellate proceedings against seizure orders, resulting from the reiteration of revocation applications rejected by the proceeding judge, be adduced in support of the reasonableness of the asymmetry.
A similar risk, also common to the matter of preventive seizures within criminal proceedings, may in fact be avoided by case law through the application of principles similar to those underlying the preclusive efficacy of the so-called precautionary res judicata (giudicato cautelare) or, within criminal execution, of the so-called executive res judicata, in all cases where the party does not allege the emergence of new elements, not previously deduced (Court of Cassation, United Sections in Criminal Matters, Judgment of December 19, 2006 – April 10, 2007, No. 14535; in a conforming sense, recently, Fifth Criminal Section, Judgment of February 12 – April 3, 2025, No. 12859; Third Criminal Section, Judgment of February 15 – March 12, 2024, No. 10245).
7.6.8.– In conclusion, the denounced asymmetry between the public party’s powers of appeal and those of the private party does not appear to this Court to be supported by any reasonable justification: with the consequent violation of both Article 3 of the Constitution and Article 111, second paragraph, of the Constitution.
8.– The further censures are absorbed.
9.– The declaration of constitutional illegitimacy must strike solely paragraph 1 of the censured provision, insofar as it does not include among the listed orders those by which the court rejects the application for revocation of the seizure. As an effect of such an addition, the cross-reference contained in paragraph 2, which governs appeals, will automatically extend to such orders as well.
FOR THESE REASONS
THE CONSTITUTIONAL COURT
declares the constitutional illegitimacy of Article 27, paragraph 1, of Legislative Decree No. 159 of September 6, 2011 (Code of anti-mafia laws and prevention measures, as well as new provisions regarding anti-mafia documentation, pursuant to Articles 1 and 2 of Law No. 136 of August 13, 2010), insofar as it does not include among the orders listed therein those by which the court rejects the application for revocation of the seizure.
Decided in Rome, at the seat of the Constitutional Court, Palazzo della Consulta, on July 8, 2026.
Signed:
Giovanni AMOROSO, President
Francesco VIGANÒ, Rapporteur
Igor DI BERNARDINI, Registrar
Filed in the Registry on October 2, 2026
The anonymized version conforms, in its text, to the original