The Last Imperative of Criminal Policy: Nullum Crimen Sine Confiscatione

Led by the diktat “crime does not pay”, the recent criminal policy regarding measures to counter illegal assets is dangerously turning towards constitutionally abnormal models, often revealing “preventive criminal law” paradigms. In this framework, confiscation plays a leading role: being teleologically ambiguous, it is easy to “manipulate” and misapply, thanks to “generous” judicial interpretations that breach the fundamental guarantees. The various types of confiscation, flourished in an authentic “penumbra of legality”, generate many controversial aspects: inter alia, the affirmed possibility to execute a “confiscation without conviction” seems to infringe the presumption of innocence; the “value confiscation” is more and more difficult to reconcile with legal certainty; the “extended confiscation” seems to be unreasonable, as “normalised” and generalised by the so-called “anti-mafia code”, also because of its neutral characterisation of facts supporting the prognosis of dangerousness. This paper analyses the problematic aspects of this “criminal law of illegal assets” that dangerously tends towards illiberal models.