The trial is over. The seizure isn’t.

A company’s funds had been placed under preventive seizure in the course of an investigation into offences attributed to its director. Years later, when the company was already in bankruptcy and the case file had been transferred to another judicial office, the court declared the offences time-barred. The money, however, was still frozen, partly with the Fondo Unico Giustizia, the State fund that holds seized sums, and partly in the company’s bank accounts.

The bankruptcy trustee gave me an apparently simple brief: to bring that money into the bankruptcy estate, for the benefit of the creditors. In reality three distinct problems had to be solved: legal, documentary and administrative.

Return is not automatic

Anyone unfamiliar with criminal courts imagines that, once the trial is over, seized property automatically goes back to its owner, but this is not always the case. The Code provides that, when it delivers a judgment that does not convict the defendant (sentenza di proscioglimento), the court orders the seized items to be returned to whoever is entitled to them, unless it must order their confiscation (Art. 323 of the Code of Criminal Procedure); if that order is missing, however, the measure survives in practice and the money remains unavailable.

For evidentiary seizure the law adds a little-known rule: five years after the judgment can no longer be appealed, seized sums of money are forfeited to the State if their confiscation has not been ordered and no one has requested their return (Art. 262(3-bis) of the Code of Criminal Procedure). The Court of Cassation has ruled out that this provision applies to preventive seizure, whose loss of effect is governed by Art. 323 of the Code of Criminal Procedure (Cass. pen., Sez. I, no. 6751/2023); prudence nevertheless suggests acting promptly.

Once the trial is over, it still has to be shown who is entitled to receive the money.

Limitation and confiscation

The first issue was whether, despite the limitation, the money could still be confiscated. As a rule, confiscation of the proceeds of an offence requires a conviction (Art. 240 of the Criminal Code). The Code of Criminal Procedure allows a decision on the matter even when the offence is extinguished by limitation, but only in narrow cases: it must concern “confiscation in particular cases” (Art. 240-bis of the Criminal Code and other statutory provisions) or the confiscation provided for by Art. 322-ter of the Criminal Code, already ordered in the judgment under appeal, and the extinction must be declared by the court of appeal or the Court of Cassation after establishing the defendant’s liability (Art. 578-bis of the Code of Criminal Procedure). In our case the proceedings had ended at first instance, without any conviction: the condition for confiscation was therefore missing, and the money had to be returned.

Who is entitled to the return

Once the judgment had become final, the return of seized items fell to the enforcement judge (Art. 676 of the Code of Criminal Procedure). Before that judge it was not enough to point out that the proceedings had ended: it had to be shown who was entitled to receive the sums. The declaration of bankruptcy had deprived the company of the management and disposal of its assets, in the interest of all the creditors. An essential part of the application was therefore devoted to the trustee’s standing, so that the money would go not to those who had run the business but to the bankruptcy proceedings.

A file split between two offices

The most practical difficulty was documentary, because the seizure had been ordered by one judicial authority and the judgment delivered by another. I had to obtain from the two courts the seizure order, the final decision and the certificate that it was final, and to trace where each sum was held: unglamorous work, without which even the best-argued application lacks supporting evidence.

The application, with twelve annexes, was built around four points: the trustee’s standing, the effects on precautionary measures over property of the declaration that the offence was time-barred, the lapse of the conditions for the seizure, and the interest of the insolvency proceedings in having the sums used to satisfy the creditors.

The outcome and the final stage

The enforcement judge granted the application, lifting the seizure and ordering the return to the trustee of the sums deposited with the Fondo Unico Giustizia and held in the company’s accounts.

A favourable order, however, is not yet the same as having the money available. Sums entrusted to the Fondo Unico Giustizia, which is managed by Equitalia Giustizia, are released only after a series of formalities with the competent offices. I also followed this stage, until the sums actually returned to the bankruptcy estate.

What the case teaches

In criminal proceedings attention focuses on the defendant’s liability, much less on what happens to seized property. Yet, for the creditors of a bankrupt business, the decisive chapter began after the trial was over. At the end of any proceedings it is therefore worth checking what has become of the frozen assets and, if their return has not been ordered, requesting it without delay.