The paper argues that unexplained wealth confiscation under Article 16 of Directive (EU) 2024/1260 should be classified as a restorative, non-punitive measure rather than as a criminal sanction. Unexplained wealth confiscation is presented as non-conviction-based, residual mechanism, applicable only to proceeds of serious, profit-driven offences, typically linked to organised criminal activity and capable of generating substantial economic benefits.
The paper first reconstructs the legal requirements of Article 16, highlighting its material scope, its linkage to serious offences, its residual operation when conviction-based avenues fail or are not available, and its reliance on an evidentiary body of indications rather than proof of specific predicate offences. It then examines the nature of the measure through its wording and procedural design, together with recent ECtHR and Italian Constitutional Court case law on Italian preventive confiscation, arguing that these features support a restorative qualification consistent with Article 1 Protocol No. 1 ECHR.
On this basis, the article identifies the substantive and procedural limits that must constrain unexplained wealth confiscation for it to remain compatible with property guarantees and proportionality. Substantively, it defends the “net principle”, strict targeting of criminal proceeds, temporal limits, and restriction to serious, profit-oriented crime. Procedurally, it calls for robust fair-trial safeguards, an intermediate standard of proof higher than the civil balance of probabilities, and carefully framed presumptions. The paper concludes that, if these limits and safeguards are properly implemented, unexplained wealth confiscation can function as a legitimate restorative tool for neutralising illicit enrichment without degenerating into a disguised punitive sanction.