News · Criminal law · – 23 October 2026
From 31 October 2026 confiscation is extended and requires greater precision. The main changes are the court’s obligation to identify in the judgment the assets or the sum subject to value confiscation (confisca per equivalente), mandatory value confiscation of instrumentalities and the possibility of confiscating assets transferred to third parties who knew that the transfer was intended to avoid confiscation; the decree also changes the way crypto-assets are seized and gives the public prosecutor new powers to investigate assets.
The framework. Legislative Decree No 186 of 25 September 2026, published in Official Gazette No 241 of 16 October 2026, transposes Directive (EU) 2024/1260 and enters into force on 31 October 2026. Among other things, it amends the Criminal Code, the Code of Criminal Procedure, the Civil Code and Legislative Decree 152/2006; Title V, although headed “Transitional and final provisions”, contains no transitional provisions. In our view, the new forms of value confiscation, being punitive in nature, cannot apply to offences committed before 31 October 2026, whereas the procedural rules follow the principle tempus regit actum.
Why it matters. The new Article 536-bis of the Code of Criminal Procedure (c.p.p.) requires the court, in every case of value confiscation, to identify specifically, in the judgment of conviction, the assets of equivalent value that are confiscated or, alternatively, to determine the sum of money subject to confiscation: the defence may challenge an operative part that contains neither. Where the property used or intended to be used to commit the offence cannot itself be confiscated, Article 240-ter of the Criminal Code (c.p.) requires the confiscation of assets of equivalent value available to the offender, including through a nominee. The list of offences includes, among others, Articles 316-bis, 316-ter, 640-bis and 648-bis c.p., Articles 2635 and 2635-bis of the Civil Code, market abuse offences and certain environmental offences, including minor offences (contravvenzioni); in determining the value, the court takes into account the seriousness of the offence and the economic and financial circumstances of the convicted person. Article 240-quater c.p. applies to an almost identical list: where the price, product or profit must be confiscated and the defendant has no assets of equivalent value, the court may also confiscate assets transferred to a third party not involved in the offence in order to shield them from confiscation, but only if it is established that the third party knew of that purpose at the time of the transfer. Article 240-bis c.p. now provides that extended confiscation (confisca estesa) requires a temporal link, established by the court, between the acquisition of the assets and the criminal activity; Article 2635-quater of the Civil Code makes confiscation mandatory in any event, on conviction for corruption in the private sector or for incitement to it (Articles 2635 and 2635-bis of the Civil Code), including in the cases covered by the first paragraph of Article 240 c.p. The changes also bear directly on corporate criminal law and on environmental offences: for the offences under Articles 256, 256-bis and 259 of Legislative Decree 152/2006 committed in the course of a business or of any organised activity, Article 259-bis of that decree now provides for confiscation of the product, the price or the profit, unless they belong to a person not involved in the offence, and, failing that, value confiscation.
In practice. Under Article 104, paragraph 1, point (e-ter), of the implementing provisions of the Code of Criminal Procedure, a preventive seizure (sequestro preventivo) of crypto-assets is executed by transferring them to the Fondo unico giustizia (the State fund that manages seized money and financial assets) together, where possible, with the means of access, including the private cryptographic keys, or, where this is technically impossible, by any other procedure that ensures their exclusive custody and control by the authority conducting the proceedings. The order is communicated to the issuer and to any crypto-asset service provider entrusted with the custody and administration of the crypto-assets, where they can be identified. The new paragraph 1-bis of Article 430 c.p.p. allows the public prosecutor, in the supplementary investigation that follows the order committing the case for trial, to carry out any activity needed to identify the assets subject to mandatory confiscation; the records are filed and the parties may inspect them. For seized assets that cannot be kept without risk of deterioration or disproportionate cost, Article 151-bis of Presidential Decree 115/2002 governs their sale before confiscation: the interested party may ask to be heard within fifteen days of notification, failing which the right lapses, but where there is urgency the court rules without formalities; the seizure then attaches to the proceeds of sale. The order may be appealed under Article 322-bis c.p.p.; the appeal does not stay enforcement unless the court that made the order directs otherwise by reasoned decree, where the sale may cause serious and irreparable harm. A third party who has received assets from a suspect should keep a timely record of the terms on which they were acquired.
Frequently asked questions.
Is confiscation from a third party automatic?
No. Article 240-quater c.p. leaves it to the court and requires that the defendant has no assets of equivalent value and that the third party’s knowledge of the purpose of avoiding confiscation, at the time of the transfer, is established.
What must a judgment ordering value confiscation contain?
Under Article 536-bis c.p.p., the specific identification of the assets of equivalent value confiscated or the determination of the sum of money subject to confiscation.
What is the time limit for intervening in the sale of a seized asset before confiscation?
The interested party must ask to be heard within fifteen days of notification, failing which the right lapses, unless the court rules without formalities on grounds of urgency; the order directing the sale may be appealed under Article 322-bis c.p.p.
Summary note by the CommercialistiAvvocati network, based on specialised legal and practice sources. The text does not reproduce original contributions and does not constitute professional advice.