This contribution reviews the reasoning by which, in ruling on an order of the Court of Review (Tribunale del Riesame) of Florence, Cass., Sec. I, 1 October 2025, No. 32491, recognized the applicability of the “impeditive” preventive seizure under Article 321(1) of the Code of Criminal Procedure to legal persons as well, excluding any incompatibility with the precautionary measures provided for by Legislative Decree No. 231/2001. The Court of Cassation, however, set the measure aside for lack of reasoning as to the proportionality of the seizure and the pertinence of the assets subjected to restraint.
In the judgment under comment, the Court of Cassation confirmed the applicability to legal persons of the “impeditive” preventive seizure provided for by Article 321(1) of the Code of Criminal Procedure, holding that there is not “a total overlap and thus a logical-legal incompatibility between that seizure and the disqualifying measures.”
The decision is of particular interest for having clarified the relationship between impeditive seizure and corporate liability, but also for its rigorous reasoning on the issues of the pertinence nexus and proportionality of property-related precautionary measures.
The case arises from the collapse of the building intended to house the Esselunga store in Florence, in which five workers lost their lives and three were injured.
By order of 21 March 2025, the Court of Review of Florence upheld the preventive seizure decrees by which the Florence preliminary investigations judge (GIP) had subjected to restraint, respectively, the construction site area affected by the collapse and the business assets of the companies involved in the disaster, all owned by the same family.
On appeal, the parties concerned in various capacities challenged:
- the application to the entity of the impeditive seizure, deemed incompatible with the wording of Article 19 of Legislative Decree 231/2001, which expressly refers only to seizure aimed at confiscation;
- the discrepancy between the prosecutor’s request and the judge’s order, as well as the unlawful extension of the restraint to persons and assets extraneous to the proceedings, based on a corporate or family connection with the suspect;
- the lack of reasoning on the nexus of pertinence (pertinenzialità) between the seized assets and the alleged offense;
- the violation of the principle of proportionality due to the excessive breadth of the restraint;
- the insufficient reasoning regarding the concreteness and immediacy of the periculum in mora.
In ruling on the legal issues raised by the defense, the Court of Cassation observed that:
“the seizure of the business complexes and the equity interests (quote societarie) of the two companies, Alfa and Beta, serves an impeditive function and is ordered against both companies due to their operational and managerial commingling, as they are in fact owned by the same family.
It is not, therefore, a case of an impeditive seizure unlawfully imposed on an entity under investigation for the administrative offenses under Legislative Decree No. 231/2001, much less on an entity not even under investigation for such offenses, as in the case of Alfa, but rather a preventive seizure of assets whose free availability by the suspect, a natural person and sole director of all the companies involved, could aggravate or prolong the consequences of the offense.”
Moreover, the failure to apply the impeditive seizure to the entity “would risk creating a privileged regime, thereby depriving the community of an effective protective tool to remove criminogenic assets from circulation.” As the Court notes, in line with what was already expressed in another decision (Sec. II, 10 July, No. 34293, Sunflower, Rv. 273515-01), “nothing prevents ordering an impeditive seizure against a natural person under investigation or on trial who uses a criminogenic asset owned by the entity, which, consequently, albeit indirectly, would be deprived of it.” It follows that, by virtue of the referral contained in Article 34 of Legislative Decree 231/2001 to the provisions of the Code of Criminal Procedure, “the impeditive seizure must be deemed admissible also against the entity.”
Rejecting the defense’s objections on this point, the judgment under comment thus finds that impeditive seizure may be ordered over business assets and equity interests when there is a well-founded risk that their free use by the suspect could aggravate or prolong the consequences of the offense.
The Court, however, upheld the challenges concerning the lack of reasoning on the nexus of pertinence between the offense, the equity interests, and the business assets. In line with settled case law, the Court of Cassation reiterated, on the one hand, that the asset subject to preventive seizure must exhibit an “intrinsic, specific, and structural instrumental relationship with the offense,” and, on the other, that a merely occasional or personal connection with the suspect can never suffice for purposes of seizure.
The restraint—concluded the Court—is to be considered lawful only in the presence of an actual link between the asset and the offense, meaning that assets of third parties unconnected to the offense may also be seized when their free availability would facilitate the continuation of the offense.
Addressing the principle of proportionality, the judgment under comment underscored the total absence of reasoning as to the breadth of the restraint, which had been extended to the entire business activity of the company directly involved in producing the defective item. On this point, the Court of Cassation recalled that the danger justifying the seizure must be concrete and current, not merely hypothetical. The judge, in short, is called upon to ascertain the actual possibility that the asset may be used to aggravate the offense or to commit new unlawful acts. The measure must be limited to the minimum necessary to prevent the aggravation or prolongation of the consequences of the offense. Moreover, where the seizure of business assets may paralyze entrepreneurial activity, the judge’s duty to provide reasons must become all the more rigorous.
For these reasons, it therefore quashed the order and remanded the case to the Court of Review of Florence in a different composition.
