Criminal confiscation as a tool to combat international organized crime.
What you need to know
Giovanni Falcone, a well-known Italian magistrate killed by the Mafia, was the first to use the expression “follow the money”.
To effectively identify and target organised crime, you have to follow the money, as this is used and invested.
And so, today, the States have understood that to effectively fight crime, it must be hit. Especially in its earnings.
The measure of criminal seizure has therefore assumed a crucial role.
In fact, more and more often we are dealing with vast patrimonial investigation, which aim to seize all assets to an individual.
And it’s not just the defendants who suffer the effect of this.
Property connected to a crime can be seized even if formally registered in the name of another.
Therefore, today, valid criminal defense also requires adequate knowledge of the limits of this power and of the international norms in force.
In fact, precisely because of the political and economic importance that this instrument has, in the context there are numerous international bilateral agreements on legal assistance, including in matters of investigation.
In the EU, Regulation 2018/1805, which came into force in December 2019, has the objective to apply the principle of mutual trust to judicial decisions in matter of criminal seizures.
Here then is some simple information useful for understanding this legal institution.
FAQ
❓ Is criminal seizure a measure that can be ordered in any judicial case?
Depends.
Generally, the seizure of the “corpus delicti” is a mandatory step in every trial.
Seizure as sanction in addition to the custodial or pecuniary penalty, however, is limited to crimes only which presuppose an economic advantage (like to narcotraffic, money laundering and similar).
The case is different when the seizure is ordered for conservative purpose, perhaps to guarantee the duty of compensation in favor of the victim of the crime.
❓ Can all of a person’s assets be seized?
Not exactly.
For the measure to be considered reasonable, taking into account the ECHR principle, there must be always a minimal temporal connection between the property and the crime.
For example, if you are prosecuting for drug trafficking committed in 2020, it is not reasonable to subject to seizure a house bought in the 90’s, as it is not logical to think that it was bought with the proceeds of a crime committed much later.
❓A seizure ordered in one Country may also concern an asset located in another Country?
Absolutely yes.
International agreements are precisely intended to affect properties in every part of the World, through international cooperation, including investigative cooperation.
❓ Seizure is a measure that presupposes the initiation of a criminal trial and a sentence of conviction?
No.
There are cases in which these measures can be applied as a precautionary measure, even before the conclusion of trial.
But it is also possible to have a seizure without starting any trial or even after an acquittal sentence.
As happens in Italy, with the Anti-Mafia Law (Dlvo 159/2011), with the “measures of prevention”.
And if this seems absurd, the ECHR has considered this possibility legitimate, as recalled in the new judgment “Garofalo and others v. Italy”, published on 13 February 2025.
❓ What happens if the seized assets actually belong to someone who is not involved in the crime?
Criminal seizure and the criminal confiscation, at least in its most modern conception, aims to attack all the assets of the accused which have a value disproportional to his declared wealth.
In this sense, the measure may also concern the assets of his family members, or properties which, even if they belong to others, it is presumed that they were purchased with illicit money.
However, the real owner can always claim his right of ownership providing proof of its legitimate origin.
With one important difference. While the presumption applies to the accused according to which all of his assets are illegal until otherwise evidenced; in the case of a stranger, the normal rules on the evidence apply. Therefore, it is always up to the Public Prosecutor to demonstrate the reasons why that property, even if formally registered to someone else, must be considered the defendant’s.
We can help you develop a tailored strategy.
As many terrains in cross-border cooperation in criminal matters: the old-school way of looking at it deprives suspects from exercising their right to a fair trial in an effective way. Our team wants to change this and has created a philosophy based on our knowledge and, especially, experiences in transnational investigations. Wit our team bringing together some of Europe’s top criminal defence attorneys, each offering specialized expertise and the ability to act across borders, we believe we are well-prepared for the future of criminal defending!
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- Maria Barbancho, LL.M. (Spain) – Barcelona-based boutique criminal defence partner specialising in international criminal law, extraditions under the EAW, and complex cross-border cooperation
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In short:
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