Preventive seizure: the Constitutional Court strengthens the protection of businesses and assets against the denial of revocation

Preventive seizure: the Constitutional Court strengthens the protection of businesses and assets against the denial of revocation

Note to Constitutional Court, judgment no. 158 of 2026

In brief

Yes, the rejection of the request for revocation of a preventive seizure can now be appealed. With judgment no. 158 of 2026, filed on October 2, 2026, the Constitutional Court declared Article 27, paragraph 1, of the anti-mafia code (Legislative Decree 159/2011) unconstitutional in the part where it did not include this measure among those that could be appealed. The proposed party and third parties holding rights over the assets can therefore appeal to the court of appeal, also on the merits, within thirty days of notification, and then to the Court of Cassation for violation of law. The appeal does not suspend the seizure. With judgment no. 158 of 2026, the Constitutional Court declared Article 27, paragraph 1, of the anti-mafia code unconstitutional in the part where it does not include among the appealable measures the rejection of the request for revocation of a preventive seizure. The ruling, based on Articles 3 and 111, second paragraph, of the Constitution, eliminates an asymmetry that allowed the public prosecutor to appeal the revocation of the restraint and precluded the proposed party and third parties from any appeal against its maintenance. The commentary reconstructs the gap and the reasoning, and focuses on the consequences for the defense, which concern not only the availability of a new means, but the very way of constructing the request for revocation.

1. Introduction

In asset prevention proceedings, the moment an interested party loses availability of assets is not confiscation, but seizure. It is the seizure that determines dispossession, the appointment of a judicial administrator, the immediate impact on banking and commercial relationships; and it is the seizure that lasts, in the normal course of proceedings, up to eighteen months, extendable by a further six months pursuant to Article 24, paragraph 2, of the anti-mafia code, to which is added the time of the appeal judgment against confiscation.

Despite this, the system of remedies established by Article 27 of the anti-mafia code, even after the reform of Law no. 161 of October 17, 2017, remained incomplete precisely in the segment that most concerns business defense: where the interested party, having acquired elements capable of demonstrating the absence of the conditions for the restraint, requests its revocation and is denied. No appeal was provided against that denial.

Judgment no. 158 of 2026, decided on July 8 and filed on October 2, 2026, on a question raised by the Criminal United Sections, fills this gap. The interest of the ruling, however, is not exhausted by the provision of an additional means of appeal. The reasoning contains statements on the nature of seizure, on the equality of arms in prevention, and on the limits of reiterating requests that affect the overall defense strategy.

2. The gap in Article 27 of the anti-mafia code and the conflict in legitimacy proceedings

Article 27, paragraph 1, lists the measures that must be communicated without delay to the Prosecutor General, the Public Prosecutor, and the interested parties; paragraph 2 extends the provisions of Article 10 to appeals against "said measures." Law no. 161 of 2017 had added to the already foreseen hypothesis of the revocation of seizure also those of the application and denial of the seizure itself. This resulted in a situation where the public prosecutor could appeal both the rejection of their own request and the revocation of the restraint, while the interested party could only appeal the originating measure. The rejection of the request for revocation remained outside the list.

On the consequences of this omission, the jurisprudence of legitimacy had been divided. According to a first approach, recalled by the Court through Cass., Sez. II, ord. no. 4729 of 2018, an opposition in the form of an execution incident under Article 667, paragraph 4, c.p.p., before the same judge, would have been admissible against the denial. According to the opposite approach, expressed among others by Cass., Sez. I, no. 17489 of 2022, no remedy was allowed, due to the principle of exhaustiveness of means of appeal under Article 568 c.p.p., applicable in prevention through the reference in Article 10, paragraph 4, of the anti-mafia code to the rules on appeals concerning security measures.

Invested by the Fifth Section, the United Sections, with the order of April 24, 2026, adhered to the second approach, considering that the non-appealability was the result of a conscious choice by the legislator of 2017 and that the unambiguous literal tenor of the list precluded both conforming interpretation and analogical extension. They therefore concluded that a constitutional incident was necessary, denouncing the disparity between the public and private parties in light of Articles 3, 24, 41, 42, 111, and 117, first paragraph, of the Constitution.

The specific case highlights the scope of the problem. The appellant, a third party unrelated to the proceedings, operated their individual business in the seized property unit, by virtue of a business branch lease agreement. For about two years, they had attempted to appeal against the eviction order, intervention under Article 23, and finally the request for revocation, obtaining a declaration of inadmissibility of the appeal, a non-suit, and a declaration of inadmissibility of the request, without any judge other than the one who had ordered the restraint being able to examine their reasons.

3. The decision

The Court declares the constitutional illegitimacy of Article 27, paragraph 1, of the anti-mafia code, in the part where it does not include among the measures listed therein those by which the court rejects the request for revocation of the seizure. The questions are upheld with reference to Articles 3, first paragraph, and 111, second paragraph, of the Constitution; the further objections are absorbed.

The technique is that of an addition limited to paragraph 1. The Court specifies that, as a result, the reference contained in paragraph 2 automatically extends to rejection measures (§ 9 of the Considerato in diritto). Therefore, no new remedy is created, but the denial of revocation is brought into the general appeal regime of Article 10 of the anti-mafia code: appeal to the court of appeal, also on the merits, within thirty days of notification; appeal to the Court of Cassation solely for violation of law within ten days; no suspensive effect.

Before addressing the merits, the Court rejects the two exceptions of inadmissibility raised by the State Attorney General. The first, based on the existence of alternative remedies, is referred to the merits. The second, according to which the seizure would have lost its autonomous effect due to the first-instance confiscation decree, is rejected with a systematically significant statement that will be revisited: until the confiscation is final, the title of dispossession remains the seizure (§ 6.2).

A further preliminary step defines the subjective scope of the ruling. Although the giudizio a quo concerned a third party, the Court states that the question concerns every "interested party," including the proposed party, since distinguishing between the two positions would in turn create an unreasonable disparity between subjects equally affected by the restraint (§ 5).

4. Equality of arms in asset prevention proceedings

The core of the reasoning is the affirmation that the principle of "equal conditions" of Article 111, second paragraph, of the Constitution applies to any jurisdictional proceeding, including prevention proceedings (§ 7.3). This affirmation is not obvious. The Court, with judgment no. 24 of 2019, had excluded that preventive seizure and confiscation have a criminal nature, removing them from the constitutional statute of criminal liability; in the same ruling, however, it had specified that these are measures that heavily affect property rights and economic initiative and must therefore be applied at the end of a proceeding conforming to the general canons of due process. Judgment no. 158 draws a specific consequence from that premise in the field of appeals.

The criterion for judgment is borrowed from the jurisprudence on equality between prosecution and defense in criminal proceedings, summarized by judgment no. 34 of 2020. The principle does not impose identical powers; it tolerates asymmetries justified by the institutional role of the public prosecutor or by the needs of proper administration of justice, provided they are contained within the limits of reasonableness. But the direction of asymmetries is not indifferent. The public party's power of appeal presents wider margins of flexibility than that of the private party, which is supported by the right of defense under Article 24 of the Constitution.

Applied to prevention, the criterion leads to a clear outcome. Here too, the public prosecutor is in an undeniable position of advantage, being able to use the full range of investigative tools, including coercive and intrusive ones, which have no counterpart on the defense side. A regulation that adds to this structural advantage a further procedural advantage, allowing only the public party to appeal the unfavorable outcome of the request for revocation, appears to the Court "strongly dissonant" with the principle (§ 7.6.5).

On the level of Article 3 of the Constitution, the Court carries out a strict judgment of equality, calibrated on the relevance of the comparison (§ 7.2). The comparison is relevant because the two situations compared concern the same object, i.e., the permanence of the restraint, observed from the side of the party who requested it and from the side of the party who is subject to it. A fact emphasized by the Court contributes to making the asymmetry effective: the public prosecutor can appeal not only the revocation and application of the seizure, which modify the legal reality, but also the rejection of their original request, which leaves it unaltered (§ 7.6.1). Thus, the fiscal argument that appeal would be reserved only for measures that innovate the status quo is undermined.

5. Seizure as the title of the restraint and the comparison with Article 322-bis c.p.p.

The fiscal defense argued that the denial of revocation merely determines an interim maintenance of the restraint, awaiting a confiscation that is in turn appealable, and that the protection of the private individual is only deferred. The Court responds on two levels.

On the level of duration, it observes that eighteen months, extendable by six, is ample time to cause serious and potentially irreparable damage, especially when the assets are necessary for work or business activities: two years of inactivity, the Court writes, can effectively decree the end of a business (§ 7.6.3). This observation, formulated in general terms, offers the defense a parameter for assessing prejudice that goes beyond the decided case.

On the level of title, the Court states that until the confiscation is final, the title of dispossession remains the seizure. It does so by recalling the literal wording of Article 27, paragraph 2, according to which the confiscation measure becomes enforceable upon the finality of the ruling, and the rule that the United Sections had enunciated for criminal confiscation with judgment no. 48126 of 2017. According to that decision, until the irrevocability of the judgment, the asset is unavailable not because it is confiscated, but because it is seized, while the confiscation remains, so to speak, sub condicione; and that the third party can request restitution from the judge of cognition and, in case of denial, appeal under Article 322-bis c.p.p. even after non-final judgments.

The comparison with criminal proceedings concludes the reasoning. Article 322-bis c.p.p. allows appeal against orders concerning preventive seizure, including those that reject requests for revocation, and also grants standing to the person whose property has been seized or who would be entitled to its restitution. For the Court, this regulation demonstrates that any seizure, whatever the proceeding in which it is ordered, entails incisive restrictions on constitutional rights and requires effective and uniformly applicable protection in the legal system, unless there are compelling reasons to the contrary, which are not present in prevention (§ 7.6.6).

The Court is not convinced by the reference to alternative remedies either. Intervention under Article 23 allows defenses only before the judge who ordered the restraint, and the failure to summon the third party is considered by jurisprudence a mere irregularity; the remedies of Articles 52 et seq. operate only after confiscation and protect rights different from ownership (§ 7.6.4).

6. Repercussions for the defense

The most immediate consequence is the availability of an appeal against the maintenance of the restraint. The proposed party and any third party whose rights are affected by the seizure, including the holder of a personal right of enjoyment as in the decided case, can appeal to the court of appeal against the rejection of the request for revocation within thirty days of notification and, against the decree of the court of appeal, to the Court of Cassation within ten days. Since paragraph 1 of Article 27 now also requires notification of the denial to interested parties, the deadline runs from the notification, and its date must be accurately ascertained.

The second consequence concerns the timing of the request. The statement that the seizure remains the title of the restraint until the confiscation is final implies that revocation can be requested, and its denial appealed, even after the first-instance confiscation decree and during the related appeal judgment. This opens up a space for protection precisely in the phase which, for the business, coincides with the longest period of dispossession.

The third consequence, perhaps the most relevant professionally, concerns the content of the request. Before the ruling, the request for revocation was an act addressed to a judge who decided without control; today it is the first instance of a process that, through an appeal extended to the merits, reaches the Court of Cassation. It follows that the request must be constructed as the act on which the higher court will measure its decision: with documented reconstruction of the origin of resources, income capacity in the relevant period, effective ownership of assets by the third party and, when it concerns business assets, the concrete prejudice to the continuity of the business.

To this need is linked the limit indicated by the Court. To avoid the multiplication of judgments, the reiteration of requests can be governed by principles analogous to those of res judicata in precautionary measures, in cases where the party does not adduce new elements not previously adduced (§ 7.6.7). The United Sections, in judgment no. 14535 of 2007 recalled by the Court, described that res judicata as a preclusion allo stato degli atti, which forms once appeals are exhausted, covers issues explicitly or implicitly raised, and can only be overcome by new or supervening elements, not by different arguments or reasons.

The apparent paradox should be noted: the introduction of the appeal makes the preclusion more stringent. In the absence of appeal, jurisprudence did not have the typical prerequisite of res judicata in precautionary measures, i.e., the exhaustion of control means; now that prerequisite exists. The practice of repeated revocation requests at short intervals, with progressively integrated presentations, therefore becomes risky. The correct strategy is a single, complete request, followed, if necessary, by an appeal; subsequent requests should be reserved for genuinely new elements, such as subsequently acquired documentation, supervening technical consultations, or changes in the business situation.

Two further aspects deserve attention. For the third party, intervention in the hearing under Article 23 retains its function, because it is there that evidence of ownership for confiscation purposes is formed: the appeal against the denial of revocation does not replace it, but allows the maintenance of the restraint to be immediately challenged before a different judge. Furthermore, in case of confirmation of the appealed decree, Article 10, paragraph 2-quater, places legal costs on the private party who filed the appeal: this is a cost to be evaluated with the client before acting.

7. Open issues

The choice of an addition limited to paragraph 1 is cautious, but it leaves some coordination problems to the jurisprudence of legitimacy that the defense will have to address on a case-by-case basis.

The first concerns the denial pronounced by the court of appeal. The operative part refers to the measures of the "tribunal," but in the giudizio a quo the seizure had been ordered on appeal by the Court of Appeal of Rome, to which the request for revocation had also been addressed pending the appeal against confiscation. The solution most consistent with Article 10 appears, in the opinion of the author, to be an appeal to the Court of Cassation for violation of law, as for other decrees of the court of appeal; however, this entails the loss of merit control, which makes the completeness of the request even more decisive. Clarification may come from the decision of the United Sections in the giudizio a quo.

The second concerns the form of the denial. In the decided case, the request had been declared inadmissible, and the Court treats that measure as a rejection (§ 6.1). The argument supports the appealability of any measure that denies revocation, whatever the formula adopted, but the operative part speaks only of rejection and it is prudent to expressly argue this point in the appeal document.

The third concerns management measures. Eviction orders and other acts of the delegated judge remain without an express means of appeal; in the specific case, the appeal had been declared inadmissible. The need for uniformly applicable protection against any seizure, affirmed in § 7.6.6, may support new questions of constitutional legitimacy, but does not in itself offer an already available remedy.

Finally, without the Court having dealt with it because it had not been raised, there remains the asymmetry of paragraph 3 of Article 27, which reserves to the public prosecutor alone the request for suspension of the enforceability of the revocation measure.

The best objection to the adopted solution is that an appeal extended to the merits against the denial of revocation, which can be filed during the appeal against confiscation, risks giving rise to a second judgment on the same subject, i.e., the origin and ownership of the assets, with possible conflicting decisions. The objection finds an answer in the distinction, known to the jurisprudence of legitimacy, between parallel proceedings, which concern the object of the main judgment, and incidental precautionary proceedings, which concern the permanence of the restraint and can therefore coexist with cognition. However, it is foreseeable that the courts of appeal will make rigorous use of res judicata in precautionary measures precisely to contain this overlap.

8. Concluding remarks

Judgment no. 158 of 2026 is innovative on a normative level, because it introduces a remedy that living law, enshrined by the United Sections, excluded. On the level of principles, however, it is in continuity with judgment no. 24 of 2019 and with the jurisprudence on the equality of arms, of which it represents a coherent development. To present it as a change of direction would therefore be inaccurate.

Its greatest merit lies in the clarity with which it brings preventive seizure and criminal preventive seizure back to a single need for protection: every real restraint affects constitutional rights and must be subject, in its permanence, to the control of a judge different from the one who ordered it. This is a statement that goes beyond Article 27 and can be invoked in all segments of asset prevention where the protection of the private individual remains entrusted solely to the presiding judge.

For those defending businesses and assets affected by prevention measures, the ruling also requires a change of method. The new appeal is useful insofar as the preceding request is complete, documented, and constructed with a view to the control of the higher court; otherwise, the preclusion of res judicata in precautionary measures risks transforming the remedy into an obstacle to subsequent requests. The quality of the first request thus becomes the factor that determines the effectiveness of protection.

Avv. Roberto Antonio Catanzariti Lawyer practicing before the higher courts · Cassino Bar Founding partner of Legal Aid Società tra Avvocati S.r.l.

Related sources and insights

• Constitutional Court, judgment no. 158 of 2026 (text on the Court's website)
• Preventive seizure of business assets: the Firm's defense
• Criminal risk and defense: the Firm's expertise
• Avv. Roberto Antonio Catanzariti

The author. Avv. Roberto Antonio Catanzariti, lawyer practicing before the higher courts, Cassino Bar, founding partner of Legal Aid Società tra Avvocati S.r.l.

The content is for informational and legal research purposes and does not constitute legal advice. Each situation requires an evaluation of the specific procedural documents.