Osservatorio di Diritto Penale · 24 August 2026
The judge ruling on precautionary measures over assets may reject the public prosecutor’s application, reduce it, or uphold it on grounds other than those first given. What the judge may not do is widen the scope of the measure or convert its legal basis, substituting the “price” of the offence for the profit relied upon by the prosecution.
An appeal by the public prosecutor against an order of the review court concerning preventive seizure with a view to confiscation was declared inadmissible.
On the first point, price and profit remain distinct statutory categories with distinct legal bases for confiscation: against the issuer of invoices for non-existent transactions (Art. 8 of Legislative Decree 74/2000), seizure may target only the price of the offence, that is the consideration agreed or received for issuing them, and not the profit obtained by the third-party user, barred as it is by the derogating regime of Art. 9 (Crim. Sec. 3, No. 34202 of 2025, Rv. 288727-01).
On the second and decisive point: in incidental precautionary proceedings the judge has no power to gather evidence of his own motion and is bound by the petitum and the material supporting it (Arts. 291(1) and 321(1) of the Italian Code of Criminal Procedure). The review court’s power to supplement defective reasoning, including by reclassifying the facts, does not extend to replacing the prosecutor in identifying the charges.
The Court did not, however, rule out that the VAT in question may qualify as a price: it found the argument advanced facts different from those settled in the case file. Participation under Art. 110 of the Criminal Code remains available, provided it is formally charged and the seizure application is framed on that basis.
The centre of gravity shifts from assessment to documents: the prosecutor’s application, the preliminary investigations judge’s order and the review decision must be read against one another, to establish which charge the measure was sought for and which magnitude, price or profit, was taken as the benchmark. A discrepancy as to the object of the application or the precautionary purpose is a reviewable defect; reclassification of the facts is not, falling within the review court’s powers.
Who may act: the public prosecutor, the person under investigation and defence counsel, the person from whom the assets were seized and anyone entitled to their return.
Review, Arts. 322 and 324 c.p.p.: ten days from execution or from the date the party became aware of it. The authority conducting the proceedings transmits the file by the following day (Art. 324(3)), a directory time limit; mandatory is the ten-day period from receipt within which the court must decide, failing which the measure lapses.
Appeal, Art. 322-bis c.p.p.: a residual remedy, available “outside the cases provided for by Article 322”. Art. 310 applies so far as compatible, so the court decides within twenty days of receiving the file, but with no sanction of lapse.
Appeal to the Court of Cassation, Art. 325 c.p.p.: against orders made under Arts. 322-bis and 324, for breach of law only, ten days, with no suspensive effect. This is the remedy that produced the decision discussed here.
That said: the rule protects the defence at the individual stage, not absolutely. Nothing prevents a fresh and separate application, based on charges of participation and a different benchmark. A victory on the principle of the application remains provisional.
May the review court cure defective reasoning by the preliminary investigations judge? Yes, and it may also reclassify the facts. It may not, however, identify charges other than those for which the seizure was sought, nor alter the facts underpinning the measure.
What can be seized from a person who issues false invoices? The price of the offence, that is the consideration given or promised for issuing the invoices, and not the profit obtained by those who used them, unless participation in a different offence is formally charged.
Summary note by Studio Legale Petrali, based on specialised legal sources. This text does not reproduce third-party contributions and does not constitute legal advice.