On the borders of criminal law. A tentative assessment of Italian "non-conviction based extended confiscation"

The article discusses the legitimacy of ‘‘non-conviction based extended confiscation’’ and proposes an assessment of this measure under the principle of proportionality. So far, the analysis has mainly focused on the qualification of the measure as punitive or preventive, in order to ascertain the relevance to its assessment of the principles governing criminal sanctions. After showing that the issue of the nature of this form of confiscation is quite controversial, the paper suggests to use the principle of proportionality as a benchmark. Indeed, this principle constitutes a minimum constraint on State measures, regardless of their (non)criminal nature. Although the article focuses on Italian ‘‘non-conviction based extended confiscation’’, it may have an impact on the debate concerning similar measures known in other systems, as well as on the adoption of a common model of non-conviction based confiscation at the EU level.