The Italian legal system distinguishes between two main categories of criminal offence:
Every criminal act consists of both a so-called objective element and a so-called subjective one. The objective element pertains to the material facts of the case and includes the criminal act itself and, where envisaged by the crime in question, the occurrence of an event which has to be a causal consequence of that act. The subjective element pertains to the psychological state of the perpetrator of the act, whether there was wilful intent.
Wilful intent represents the normal subjective criterion for criminal charges, as one can infer from Article 42, paragraph 2 of the Italian Criminal Code (ICC), which states that “No-one may be punished for a fact that the law considers to be a crime, if that person has not committed it with intent, except for cases of unpremeditated or unintentional crimes expressly provided for by the law”. Therefore, criminal law presumes wilful intent to be a subjective element for the charge of criminal responsibility.
As for the definition of intent, Article 43, paragraph 1 states: “The crime is intentional, or implies intention, when the harmful or dangerous event, which is the result of the action or omission on which the law makes the existence of the crime dependent, is foreseen and desired by the perpetrator as a consequence of his action or omission; ...”.According to Italian criminal law, a person may be held liable for attempting to commit a crime, even if the attempted offence is not completed. Section 56 of the ICC prescribes that “whoever performs suitable acts, unequivocally aiming at committing a felony, is liable for attempted felony, if the action is not completed or the event has not occurred”.
According to Section 157 of the ICC, the statute of limitations extinguishes a crime:
The ICC provides for specific cases in which the limitation period is interrupted, in such cases the amount of time needed to extinguish the crime is increased.
The limitation period begins to run from the moment when the crime is committed. They are doubled for specific criminal offences set out by the ICC.
The ICC provides for particular cases in which the limitation period is suspended (eg, a first suspension of 18 months after the issuing of the conviction decision in the first instance trail, and a second suspension of 18 months after the issuing of the conviction decision in the trial of appeal).The defendant can always expressly waive the statute of limitations.
According to Italian case law, in the case of a continuing offence (so called reato continuato) the limitation period begins to run from the day on which the continuation has ended, but the length of the limitation period remains the one provided for by the law for the particular offence at hand.
The statute of limitations does not apply to crimes punished with life sentence.
Italian criminal law does not provide a specific regulation for white-collar crimes outside Italian jurisdiction.
Pursuant to Section 7 of the ICC, an Italian citizen or a foreigner are punished according to Italian Law if he or she committed, in a foreign territory, the following crimes:
The ICC prescribes other particular cases in which a crime, committed outside Italian territory by an Italian citizen or by a foreigner, can be punished according to Italian Law (eg, cases in which a request of the Ministry of Justice is needed or cases in which a complaint by the offended party is needed).
Legislative Decree 231/2001 introduced, into the Italian legal system, the liability of legal entities themselves with regard to certain criminal offences committed by their directors, representatives or employees in the interest, or to the advantage, of the legal entities.
The liability of the legal entity only arises from criminal offences committed by “individuals who are representatives, directors or managers of the company” (generally only individuals that are in top management positions), or “by individuals who are managed or supervised by an individual in a top position”. The legal entity cannot be held liable if the individuals indicated have acted solely in their own interest or in the interest of others.
The body is not liable for the criminal offences committed by the above-mentioned people, if it can demonstrate the adoption and implementation, prior to the commission of the crime, of organisational models suitable for preventing offences similar to the one that was committed.
Three kind of sanctions can be imposed on the legal entity found guilty: fines, banning sanctions and confiscation.
The legal entity’s liability is autonomous from the liability of the individual charged. There is no personal liability for managers and directors for the sole reason that the legal entity is deemed liable for an offence. Nevertheless, the legal entity’s managers or directors may be deemed personally liable for the same offence as that charged against the entity. In such cases, the legal entity cannot be legally represented, in the criminal proceedings, by the director charged with the same criminal offence.
According to Section 42 of the Legislative Decree 231/2001, in cases of transformation, merger or splitting up of the originally responsible legal entity, the trial proceeds against the legal entity resulting from the modification or benefitting from the division.
As a general rule of Italian criminal law, every crime which caused financial or non-financial damage, obliges the party found guilty to compensate the suffering party for the damage itself. Any other subjects, who are considered liable for such damage according to the civil laws, are also obliged to offer compensation.
The offended party who suffered damage from the commission of a crime can act as plaintiff in the criminal proceedings, asking for compensation for the damage. The plaintiff is represented, in the criminal proceedings, by a defence counsel, who has the same procedural rights, powers and faculties as the other trial parties. If the offended party has acted as a plaintiff in the criminal proceedings, the criminal court, in case of conviction, can order compensation from the convicted party.
The quantification of the damage is usually remitted to the civil court.
Nevertheless, the criminal court has the power to order the immediate paying of a part of the compensation, on a provisional basis, if a certain percentage of the damage is considered already proved.
Class actions are regulated by the Italian Code of Civil Procedure and can take place only in civil proceedings.
The area of Italian white-collar offences has been subjected to several legislative reforms in the recent past.
Amongst the most important reforms, the following should be noted:
In the near future, Italy will include tax crimes in the list of crimes which can trigger the liability of a legal entity as well its employees according to the Legislative Decree 231/2001.
Amongst the numerous relevant and recent decisions of the Supreme Court should be noted:
The Italian prosecution service is divided into several prosecutor’s offices, based in the main cities of Italy. Every single prosecutor’s office is staffed by a chief prosecutor and by a certain number of public prosecutors. The biggest prosecutor’s offices are divided into departments with particular specialisations (eg, a financial crimes department, a crimes against the public administration department and a crimes against the environment department).
According to the Italian Code of Criminal Procedure (ICCP), the preliminary investigations are directed by the prosecutor, who directly manage the judicial police.
The judicial police are composed of a number of different units. With reference to white-collar crimes, the most specialised unit is the Italian Tax Police (Guardia di Finanza) which has specific responsibility for tax crimes, corporate crimes, bankruptcy crimes, fraud, etc.
That said, there are a number of other units which have a specific responsibility for some type of crime: the Health and Safety Police, the Revenue Agency, the Customs Agency, the Regional Agency for Environment Protection, the Carabineer Anti-adulteration Unit, and many others.
Italian prosecutor’s offices work in co-operation with other public sector organisations, as the National Anti-Corruption Authority, the National Antitrust Authority or the Bank of Italy. Some prosecutor’s offices have undersigned memoranda of understanding with these public sector organisations that guarantee a direct flow of information and documents between them.
The most important criminal courts in Italy are divided into specialised departments, with specific responsibility for particular categories of crime, such as financial crime.
Every criminal investigation is initiated by the prosecutor’s office when the commission of a crime is reported to the office itself or to the judicial police.
The initiation of criminal preliminary investigations is regulated by Sections 326 et seq of the ICCP.
Pursuant to Section 330, the public prosecutor and the judicial police are notified, ex officio, of the commission of a crime, and receive information of the commission of that crime through the procedure provided for by the following sections (eg, the filing of a complaint).
In greater detail, according to Section 347 of the ICCP, when the judicial police becomes aware of the commission of a crime, they immediately inform the prosecutor with a written communication which describes the main elements of fact and the evidence collected. If possible, the judicial police have to provide the prosecutor with the identity of the individual under investigation and of any potential witnesses.
When a criminal investigation is initiated, the prosecutor is bound to perform any activity necessary to evaluate the prosecution and also to perform investigative assessments for the benefit of the individual under investigation (Section 358).
With reference to white-collar crimes, the relevant criminal investigations are often instigated by administrative proceedings, in which the public sector authority reports the notice of a crime to the prosecutor’s Office (for instance, a tax audit carried out by the Revenue Agency or by the Tax Police, or an inspection carried out by the National Commission for Companies and the Stock Market).
In the Italian legal framework, the prosecutor’s office has wide and far-reaching investigative powers aiming at gathering information and documents related to white-collar criminal offences (for instance: acquisition of information from other public sector organisations, investigative interrogations, interviews of the individual under investigation, inspections of places, searches of premises or personal searches, technical expertise, wire taps, shadowing and the seizure of documents, correspondence and data).
In greater detail:
Internal investigations are not mandatory in the Italian legal framework; they are carried out on a voluntary basis.
That said, internal investigations can be considered necessary, or at least highly advisable, for a corporation, in the event that the company becomes aware of a crime committed by one of its employees or directors.
The advantages of carrying out an internal investigation usually increase in cases where a crime which can trigger the liability of the legal entity involved (according to Legislative Decree 231/2001) is charged, since – in such cases – the investigation can be crucial for the legal entity to demonstrate the validity of its organisational models in preventing offences similar to the one that was committed.
Internal investigations are usually considered by prosecutor's offices and courts as items of evidence, although the relevant judicial authority is free to evaluate them at its own discretion.
Italian law does not provide any specific regulation governing internal investigations, instead they are usually regulated by corporate procedures. Internal investigations may be limited by the provisions of Italian civil and labour law.
Within the European Union, two main legal instruments are available to local authorities for cross-border co-operation:
Italy has undersigned several mutual-legal-assistance treaties with many countries, which allow the flow of information and documents and other forms of co-operation between the judicial authorities.
Extradition is regulated by the ICCP. An extradition request towards Italy cannot be granted with reference to a political crime, nor in cases in which there is a reason to believe that the defendant or the convicted person will be persecuted or subjected to discriminatory acts due to his or her race, religion, sexual orientation, nationality, language, political opinions or personal conditions, or that he or she will be subjected to inhumane and degrading treatment. An extradition request towards Italy cannot be granted without the positive decision of the Court of Appeal (so called “jurisdictional guarantee”); such a decision can be appealed before the Supreme Court of Cassation.
When Italy files an extradition request, the Ministry of Justice is in charge of the relevant procedure.
In general, the regulation of extradition is ruled by the principle of speciality, under which an extradited person may not be prosecuted by the requesting state for any offence committed prior to their extradition or surrender other than those for which extradition was granted.
White-collar prosecution (as is the case for other crimes) is initiated with the enrolment in the prosecution office record of a notitia criminis and, as soon as available, of the names of the investigated people. Preliminary investigation is then carried out by the prosecutor, collecting evidence on the existence of the crime. If the collection is positive, the prosecutor serves a notice of the conclusion of the investigation. This provides a first description of the alleged crime and allows the investigated people to have access for the first time to the case file and put forward their defence arguments within 20 days. If still convinced of the existence of criminal liability at the end of this stage, the prosecutor goes forward with an act of formal indictment: a request of committal for trial (addressed to the judge of the preliminary hearing) or a decree of direct committal for trial (a faster lane provided for crimes indicated in Section 550 of the ICCP).
Criminal prosecution is mandated by Section 112 of the Constitution, which means that the prosecutor has no discretion to decide whether or not to prosecute crimes that he or she deems proved at the end of the investigation. However, the guarantee of this constitutional duty is different in proceedings against individuals than it is in those against corporations. In the first case, if the prosecutor decides to drop the case, he or she must file a formal request to the judge of the preliminary investigation, who is in the final position to drop the case or not. In the second case, the prosecutor may directly drop the case, with a motivated decree that must (however) be served to the general prosecutor, who can disagree and decide to carry the case on.
Italy does not have legislation on deferred prosecution agreements or non-prosecution agreements. Such provisions are not compatible with the Italian criminal law system, based on the principle of mandatory prosecution (Section 112 of the Constitution). The discretionary possibility for the prosecutor to defer a prosecution, or not to prosecute a crime at all, would be considered in conflict with this principle.
A plea bargain is a recognised special proceeding, prescribed by Section 444 of the ICCP, through which the indicted person asks for the application of a penalty of up to five years imprisonment in order to end the criminal proceedings and obviate the risk of a harsher penalty.
The plea bargain application, indicating the requested penalty and the criteria to determine it, must be addressed to the prosecutor to obtain his or her consent and then to the judge for his or her legal evaluation. The judge verifies the lack of grounds to issue a dismissal judgment, the correctness of the legal qualification of the fact and circumstances, and the correctness of the penalty calculation. If this legal check is passed, the judgment applying the penalty is issued.
The plea bargain allows for a penalty reduction of up to one third and other legal benefits (such as the possibility of an early extinction of the crime and freedom from the obligation to pay the proceedings’ expenses). Moreover, its legal effects and outcomes are, compared to the ones for a conviction, less detrimental. The plea bargain judgment has no effect of res judicata in civil or administrative proceedings. Due to its beneficial nature and to the fact that it prevents a criminal court deciding on the compensation for damages (which must then be addressed by the civil courts), in Italy the option of a plea bargain may be expressly excluded for some crimes (eg, sexual crimes) or conditional on the payment of a due sum (eg, tax crimes).
Criminal company law is disciplined in Italy by the Italian Code of Civil Procedure. The main criminal offences are:
In all these cases, confiscation of the profit, product and goods derived from the crime is provided by Section 2641.
When committed in the interest, or to the advantage, of the company, the aforementioned crimes may trigger corporate liability pursuant to Section 25-ter of Legislative Decree 231/2001.
In the same decree, Section 24 provides for liability of the company if the predicate crime of fraud against the state, or another public entity, is committed in the interest, or to the advantage, of the company. If held liable, the legal entity is punished with a pecuniary sanction of up to EUR774,500 and the application of disqualifying sanctions.
Other forms of corporate fraud are punished by Italian criminal law, but they do not trigger corporate liability (eg, Section 515 of the ICC, fraud in commerce).
Bribery in the public sector is punished by the ICC as follows:
Under some conditions (Section 322-bis), the act is punishable in Italy even if bribery involves a public officer from a foreign country.
The above crimes may also amount to influence peddling (Section 346-bis) if anyone, taking advantage of a relationship with a public officer or a person in charge of a public service, unduly receives or accepts the promise of money or other goods as a price for his or her intermediation with that person or to pay that person for carrying out his functions. Punishment (extended to the payer) is imprisonment for one to four years.
In the private sector, in 2012 the new Section 2635 of the Civil Code was introduced, punishing the crime of private corruption. It is committed by a corporation employee (either a manager or a subordinate person) who solicits or receives (even as a mere promise) money or other goods to commit or omit an act in violation of duty of loyalty. Punishment is imprisonment for one to three years, doubled if the act is committed in a listed company.
When committed in the interest, or to the advantage, of the company, the aforementioned crimes may trigger corporate liability pursuant to Sections 25 or 25-ter of Legislative Decree 231/2001.
Italian criminal legislation does not provide a specific obligation to prevent bribery or influence peddling and to implement a compliance programme.
However, bribery is a possible predicate crime to corporate administrative liability under Legislative Decree 231/2001, whereby it is mandated that the corporation can exclude the liability (Sections 6 and 7) only if certain conditions are met, amongst which is having adopted and effectively implemented a compliance programme.
Hence, even if the introduction of the compliance programme is not an obligation (and there are no sanctions for not having introduced the programme), it must be considered a precondition for the corporation's legal defence and attempt to avoid liability.
In order to ensure its exemption effect, the compliance programme must be specifically for (and suited to) the prevention of crimes of the type that has occurred, taking note of the requirements set forth by Section 6 (eg, identify the activities at risk, provide for specific protocols of action, introduce a supervisory body and a disciplinary system against violations, introduce a whistle-blowing system).
Legislative Decree 385/1993 (the consolidated law on banking orTUB) provides criminal sanctions for various offences around unauthorised banking activities. Amongst these are unauthorised collection of savings (Section 130: imprisonment of one to three years and a fine), unauthorised collection of savings and performing of credit services (Section 131: imprisonment of one to eight years and a fine), unauthorised performance of specific financial activities (Section 132: imprisonment of six months to four years and a fine).
An example of illicit banking conduct is the crime of usury punished by Section 644 of the ICC. It is committed by whoever lends money, receiving or accepting usurious interest in return. Punishment is imprisonment of two to ten years and a fine.
Legislative Decree 58/1998 (the consolidated law on financial markets or TUF) provides criminal sanctions for various offences of unauthorised financial activity. Amongst these is Section 166, that punishes with imprisonment of one to eight years and a fine any person who, without authorisation, provides investment or collective asset management services, markets units or shares of collective investment undertakings, sells financial products or financial instruments or investment services.
Specific criminal sanctions are then provided in the TUF for market abuse offences, namely:
In both of these cases, confiscation of the profit, product and goods used to commit the crime is provided by Section 187. Courts may increase the fine when it appears inadequate even if the maximum is applied. Moreover, when committed in the interest or to the advantage of the company, the aforementioned crimes may trigger corporate liability pursuant to Section 25-sexies of Legislative Decree 231/2001.
In Italy there is not any specific obligation to prevent tax crimes, nor a criminal, administrative or civil offence for having failed to do so.
Tax criminal law is covered by Legislative Decree 74/2000. The decree sets forth different tax crimes based on a fraudulent conduct and a specific mens rea of tax evasion (for oneself or others). They are punished with imprisonment for 18 months to six years, mandatory confiscation of the price or profit of the crime and application of disqualifying sanctions.
Section 2 punishes the crime of filing a fraudulent tax return by using invoices or other documents relating to nonexistent operations. The crime is committed with the filing of a tax return whereby the tax income has been illicitly reduced by deducting costs for operations which are deemed nonexistent from an objective (ie, total lack of the service or over-invoicing of an existing service) or subjective (ie, real service invoiced to or by a wrong person or entity) standpoint.
Section 3 punishes the crime of filing a fraudulent tax return by means of other artifices. The crime is committed by filing a tax return whereby the tax income has been illicitly reduced through simulated operations, or using false documents or other fraudulent means that are suitable to deceive the Tax Authority, if the thresholds of punishment are met.
Section 8, punishes the crime of issuing the false invoices that are then used to commit the Section 2 crime.
Section 11 punishes with imprisonment of six months to four years the crime of fraudulent escape from the payment of tax, committed if, with the intent to escape the payment of taxes for an amount higher than EUR50,000, the agent sells in a simulated way, carries out other fraudulent actions on his or others’ goods in a way that could concretely impair the tax collection procedure, or indicates a reduced amount of tax income in the papers submitted for a tax settlement.
Note: on 26 October 2019 a decree has been approved by the Italian government providing new penalties for Section 2 and Section 8 (imprisonment from four to eight years) and Section 3 (imprisonment from three to eight years). Moreover, Section 2 becomes a predicate crime to a corporate liability under Legislative Decree 231/2001. All the novelties introduced by the decree will come into force after the publication of the law that should confirm its contents (expected before 25 December 2019).
Criminal offences are set forth to ensure the transparency and correctness of the financial records with regard to both the market and the shareholders. This legal area has been comprehensively renewed with the introduction of new legislation in 2015.
False accounting is a crime punished by Sections 2621-2622 of the Civil Code. The crime is committed if the agent, pursuing a profit, intentionally places in the financial records (or in other mandatory communications) false material facts or fails to report material facts whose communication is imposed by law, in a way that is designed to mislead the reader. Punishment is imprisonment of three to eight years in listed companies, or one to five years in non-listed companies. Confiscation of the profit, product and goods used to commit the crime is provided by Section 2641. As discussed in 3.1 Criminal Company Law above, the crime is possibly predicate to corporate liability under Legislative Decree 231/2001.
The omitted deposit of the financial records does not amount to a crime but only to an administrative offence sanctioned with a fine (Section 2630).
Antitrust and competition legislation in Italy has a largely administrative or civil nature. Criminal sanctions are provided only in specific cases.
Antitrust administrative sanctions are provided by Section 15 of Law 287/1990, in cases of unfair cartel agreements or abuse of a dominant position the author of the offence is ordered to eliminate the unfair situation and can be sanctioned with a fine up to 10% of its latest revenue.
A criminal sanction may be applied if the conduct is carried out as a form of hindrance to the functions of a regulatory authority such as AGCOM, the regulator for the competition and markets in Italy. Section 2638 of the Civil Code may be applied, punishment is imprisonment of one to four years, doubled is the act is committed in a listed company. Confiscation of the profit, product and goods used to commit the crime is provided by Section 2641.
Unfair competition is a civil offence set forth by Section 2598 of the Civil Code, which is committed if the author carries out acts to create confusion with a competitor or its products, denigrates a competitor or damages a competitor by any means contrary to professional ethics. In this case, the author is ordered to stop the conduct and can be convicted to compensate the damage.
A criminal sanction may be applied if the act of unfair competition is committed with menace or violence against a competitor (Section 513-bis of the ICC). In this case, sanction is imprisonment of two to six years.
Consumer law in Italy has an administrative nature and is disciplined by Legislative Decree 206/2005.
The regulatory authority (AGCOM) may identify, investigate and order the stopping of any commercial conduct which is unfair towards consumers, also imposing an administrative sanction from EUR5,000 to EUR5 million (Section 24).
Common criminal law offences, set forth in the ICC, may also find application in protection of consumers, such as:
The ICC provides for several criminal offences relevant to cybercrimes and computer fraud:
• Section 615-ter, unauthorized access to an IT system, punished with imprisonment for up to three years;
• Section 635-bis et seq, damage to IT systems, punished with imprisonment for one to five years; and
• Section 640-ter, wire fraud, punished with imprisonment from six months to three years and a fine.
With reference to the protection of company secrets, the ICC provides for the crime of revelation of scientific or commercial secrets, punished with imprisonment for up to two years.
Customs law violations may amount to administrative or, in the most serious cases, criminal offences. This sector is mainly disciplined by Legislative Decree 43/1973, amended over the years.
Most recently, Legislative Decree 8/2016 introduced new criteria of distinction between administrative and criminal offences, which had an important effect on customs law.
The main customs law offence is smuggling –ie, the fact of introducing goods into the territory of the state without paying the due customs charges. In accordance to the new distinction introduced in 2016:
In all cases, confiscation of the profit or product of the crime and confiscation of the things used to commit the crime are mandatory (Section 301).
In Italian criminal law, concealment is a generic concept which may assume criminal relevance in different ways.
First of all, concealment is a main constituent element of the crime of handling goods deriving from a crime (ricettazione) set forth by Section 648 of the ICC, which is punished by imprisonment for two to eight years and a fine of EUR516-10,329 for whoever purchases, receives or conceals money or goods deriving from a crime, with the intent of gaining a profit for oneself or others.
Any felony (delitto) can be predicate to the crime of concealment; however, a person can be held liable for concealment only if he or she has not taken part (even as a mere participant) in the commission of the predicate crime.
Moreover, the act of “concealing” may also be the constituent element of different white-collar crimes such as:
Finally, any crime is aggravated (Section 61, (2) of the ICC) if committed with the purpose of concealing another one.
Aiding and abetting another person to commit a crime is regulated by Section 110 of the ICC. According to this provision, aiders and abettors are subject to the same penalties provided by the corporate crime for the main offender. Pursuant to settled Italian case-law, four preconditions must occur in order to establish liability for aiding and abetting: plurality of people committing the crime, commission of a crime (or of an attempt to commit a crime) by the principal author, facilitation provided by the aider and abettor to the main author and awareness on the part of the aider and abettor to help the main author commit the crime. As to the facilitation requirement, the provided help can be material or psychological. Material help occurs when the aider or abettor makes it simpler for the author to commit the crime (for example, the handing over of a picklock to the thief in order to facilitate the opening of the door). Psychological help occurs when the aider or abettor instigates, encourages or drives the main author to commit the crime (for example, a promise to a thief to buy a stolen painting, before a crime is committed, is held responsible for the psychological instigation of that thief).
Sections 112 and 114 of the ICC provide for aggravating and mitigating factors. An example of an aggravating factor is the participation in the crime of five or more people; an example of a mitigating factor is the negligible contribution provided by the aider and abettor.
Money laundering and self money laundering (the latter from 1st January 2015 onwards) can have, as a predicate offence, any wilful crime with the exception of misdemeanours. Money laundering occurs when the agent, being aware of the circumstance that money or other goods stem from the predicate offence, conceals their provenance (paper trail tampering). The applicable penalty is a custodial sentence of two to eight years and a fine of EUR5,000-25,000 (self money laundering) and a custodial sentence of four to twelve years and a fine of EUR10,000-25,000 (money laundering). Confiscation of the profit is mandatory. Both crimes trigger corporate liability when committed in the interest, or to the advantage, of the legal entity.
Legislative Decree 231/2007, recently amended, provides for specific duties targeted at preventing money laundering. The infringement of these duties can lead to administrative and, in the most serious cases, criminal liability.
The prosecution of administrative offences is carried out by different bodies, depending on the identity of the obliged person that has infringed the anti-money laundering obligations: a general competence is attributed to the Italian Ministry of Economics, while sanctions in regulated sectors are applied by the relevant regulatory authorities (e.g. Bank of Italy, IVASS or Consob). Examples of administrative offences are:
The responsibility for the prosecution of criminal offences is held by the public prosecutor. The main criminal offences, besides the ones set forth in the ICC, are (Section 55):
With reference to individuals, two kinds of defence can be employed.
The first one relates to the actus reus and it is aimed at establishing that the alleged illegal behaviour did not occur. Since, in most cases, white-collar offences provide criminal punishment for violations of financial, tax or regulatory provisions, it is of the utmost importance for the criminal defence to be supported by the expertise of colleagues adept in these areas.
The second type of defence relates to the mens rea. Almost all white-collar offences require wilful intent and therefore the defence must aim at proving that there was no intention to commit a crime (mere negligence is not sufficient to establish the mens rea).
With reference to corporate defence, the existence of a suitable compliance programme (an organisational model pursuant to Law 231/2001) at the time when the crime was committed can amount to a valid excuse. This is the case when the crime was committed by the management of the company and it could be proved that managers fraudulently circumvented the compliance programme or, automatically, in cases where the crime was committed by a subordinate employee. The implementation of the organisational model after the commission of the crime does not exclude corporate liability but can effectively mitigate the punishment.
Corporate liability in the Italian system is not triggered by any crime but only by specific categories of crime listed by Law 231/2001, such as bribery, false balance sheets or money-laundering. A suitable compliance programme can provide a liability shield with reference to each of the aforementioned crimes.
Section 131-bis of the ICC provides for a general exemption from criminal liability (applicable also to white-collar offences) when the offence brought forward by the conduct is negligible and there is no reiteration of the conduct.
Other specific exceptions are set out by single provisions in the field of white-collar offences. Examples are:
The idea of rewarding the author of a crime for post factum co-operation or self-disclosure has been traditionally regarded with scepticism in the Italian criminal law system, since such rewards might reduce the general preventative function of the criminal penalty,or might induce the author of the crime to accuse (even groundlessly) other people in order to mitigate their position.
However, Italian criminal legislation has recently shown an increasing interest in this kind of provision:
Out of these cases,co-operative conduct with the investigation might be taken into consideration by the judge when applying the penalty (eg, reducing it because of the generic mitigating circumstances (Section 62-bis of the ICC)).
The practive of whistle-blowing in the private sector has been regulated by Law 179/2017, which amended the framework of the organisational models provided for by Section 6 of the Legislative Decree 231/2001. Legislative Decree 231/2001 introduced the liability of the legal entity with regard to certain criminal offences committed by its directors, representatives or employees, in the interest or to the advantage of the legal entity itself. The body is not liable for the criminal offences committed by the said people, if it can demonstrate the adoption and implementation, prior to the commission of the crime, of organisational models suitable for preventing offences similar to the one that was committed.
Section 6 mentioned above (as amended by Law 179/2017) sets out that the organisational models must provide for:
Retaliatory dismissal against the whistle-blower is void.
The addressees of the reporting obligation are the individuals mentioned by Section 5, a) and b), of the Legislative Decree 231/2001 (employees that are in top management positions and employees that are subject to the management of supervision of others).
A specific regulation is in force for public employment (Section 54-bis Legislative Decree 165/2001, amended by Law 179/2017). The public employee who reports unlawful conduct – which he or she became aware of due to their employment – cannot be sanctioned, demoted dismissed, moved, or subjected to any other negative organisational measures due to this reporting. The identity of the whistle-blower cannot be revealed. In criminal proceedings, their identity is protected within the limits provided for by the ICCP.
Law 179/2017 also introduced, for both the private and public sectors, a special exemption from criminal liability for the whistle-blower with reference to crimes of unlawful disclosure of secrets. This exemption is subject to certain limits, expressly prescribed by law.
In the Italian criminal trial, the burden of proof is entirely on the public prosecutor.
Section 27, 2nd paragraph of the Italian Constitution sets out that the defendant is not considered guilty until a final judgment of conviction (ie, an irrevocable conviction decision).
The relevant standard of proof is expressly indicated by Section 533 of the ICCP: a conviction decision is issued by the judge only when the defendant is proven guilty beyond any reasonable doubt.
The proof of criminal liability does not allow any presumption mechanism, but Italian jurisprudence admits so called “indirect or circumstantial evidence” in order to prove the liability of the defendant.
In cases where a defendant is deemed guilty of a criminal offence by a criminal court, the assessment of penalties is specifically regulated by the Italian Penal Code.
According to Section 132 of the ICC, the judge applies the penalty on discretionary basis, but he or she must point out the reasons which justify the use of such discretionary power.
In any case, in increasing or decreasing the penalty, the judge cannot exceed the relevant limits provided for by the law.
According to Section 133 of the ICC, using the discretionary power prescribed by Section 132, the judge must take into consideration the seriousness of the crime, which is inferred from:
Moreover, the judge must take into consideration the tendency/capacity of the defendant to commit further crimes, which is inferred from:
In the case of a plea agreement between the defendant and the prosecutor, the judge must verify the adequacy of the penalty agreed. The judge cannot modify this penalty, only grant it or reject it if he or she deems the penalty inadequate.
Zero Tolerance Approach to Corruption
In recent years, Italy has taken several measures to curb corruption in the country. The latest step is Law no. 3, which entered into force on 31 January 2019 and amends the Criminal Code and the Criminal Procedure Code.
Among other changes, the law strengthens penalties imposed in corruption cases.
The crime of corruption in the performance of a public official’s functions (Article 318 Italian Criminal Code) is now punished with three to eight years of imprisonment rather than one to six years, while corruption in the non-performance or delay in performing such functions (Article 319 Italian Criminal Code) is still punishable by imprisonment of six to ten years.
The reform therefore introduces the indiscriminate regime of ex officio prosecution for all cases of corruption and incitement to corruption among private individuals, independent of the assessment of the "distortion of competition" that has occurred (with regard to the offence referred to in Article 2635 of the Italian Civil Code only).
Ancillary penalties have also been increased.
In light of the amendments, the Criminal Code now provides that a conviction for the crimes of bribery, corruption, improper induction to give or promise benefits, incitement to corruption and trafficking in illegal influences will result in perpetual disqualification from public office and permanent exclusion from contracting with the public administration, except to obtain the performance of a public service (Article 317 bis of the Criminal Code, implemented by Law no. 3/2019).
Pursuant to the new anti-corruption amendments, anyone convicted of corruption will be permanently banned from public office and suspended from public contracting, but will only be suspended from public contracting for five to seven years if sentenced to less than two years in prison.
In fact, if the sentence is less than two years' imprisonment, the Judge may grant a suspended sentence. However, in the case of a conviction for bribery offences, etc, the suspension is subject to payment by the defendant of a sum equivalent to the price or profit of the offence, without prejudice to the right to any further compensation for damages by the administration.
The most criticised amendment relates to the penal execution phase and the alternatives to imprisonment, in relation to which several Constitutional legitimacy issues have already been raised.
Indeed, the Italian criminal system provides that, in the case of sentences of less than four years' imprisonment, convicted persons may avoid detention in jail and be sanctioned through alternative measures, such as probation by the social service.
However, this is not possible if the offender is convicted of one of the more serious offences referred to in Article 4 bis of the Penitentiary Law (no. 354/1975), such as mafia association, terrorism or sexual harassment.
Law no. 3/2019 also includes corruption offences in this list.
For those convicted of corruption, it is therefore no longer possible to avoid imprisonment, unless they decide to co-operate with the authorities, a condition that was introduced for mafia crimes, with a different aim from the current one.
Another huge problem is that the anti-corruption law does not provide any transitional regime, and since the Italian Supreme Court established in 2006 (Cass. Sez. Unite 30/5/2006 n. 2456) that the alternative measures, including probation, are subject to the principle of “tempus regit actum” since they do not represent substantive law, the new law on probation applies even when the offence was committed before it entered into force.
Several criminal law professors have called for the application of the principle of the non-retroactive effect of the law for all the provisions regarding sentencing measures.
Some Judges decided not to apply these measures to the offenders when the corruption was committed before the law entered into force; others decided to raise Constitutional legitimacy.
The Constitutional Court is currently examining and deciding on the various issues raised relating to this and other aspects of the anti-corruption law.
Although the jurisprudence of the Constitutional Court may temper some of these measures in time, the new law undoubtedly caused a ripple in the Italian business community.
A New Emphasis on Repair and Refund Behaviour
In recent years, the Italian legislator has tried to give greater importance to rewarding restorative or collaborative conduct, and refunds of the price and profit of the crime and compensation for damage.
In particular, compensation for damages, restitution of what has been wrongly received and restorative conduct may be conditions for obtaining a plea bargain, or may even become causes for non-punishment or the extinction of the offence.
Some different examples should be considered.
Starting from the anti-corruption legislation mentioned above, the following provisions are worth noting.
Article no. 322 quater of the Italian Criminal Code (introduced by Law no. 69/2015, amended by Law no. 3/2019) states that with the sentence of conviction for the crimes of corruption, etc, the payment of a sum equivalent to the price or profit of the crime is always ordered as monetary reparation in favour of the administration injured by the conduct of the public official or the person in charge of a public service, without prejudice to the right to compensation for damages.
Furthermore, Article no. 444 of the Criminal Procedure Code states that the possibility of plea bargaining is subordinated to the full restitution of the price or profit of the offence (amendment introduced by Law no. 69/20175).
In addition, Article no. 323 ter of the Criminal Code (introduced by Law no. 3/2019) introduces a “non-punishment” mechanism, under which the offender can avoid punishment if he self-reports and further co-operates with enforcement authorities during the investigation. In order to benefit from this new mechanism, the offender must self-report no later than four months after the commission of the offence, must restore the perceived benefits or a sum of money of equivalent value, and must provide useful and concrete indications to the authorities to ensure the proof of the crime and the identification of the other people involved.
Refunds also play a significant role in the regulation of tax offences. Indeed, in order to bargain, it is necessary to first refund the tax debt, according to Article 13 bis of Decree no. 74/2000.
In addition, Decree no. 74/2000 provides a cause of non-punishability in the event of payment of tax debt.
Pursuant to Article 13 of the Decree, offences of omitted payment (of VAT or withholding taxes) are not punishable if, before the beginning of the first instance trial, the tax debts have been extinguished by full payment of the amounts due, including administrative sanctions and interest.
Article 13 bis of the Decree states that, except in cases of non-punishability, the penalties for the tax shall be reduced by half and the accessory penalties referred to shall not apply if, before the beginning of the first instance trial, the tax debts have been extinguished by full payment of the amounts due, including administrative penalties and interest.
There is also a trend in court practice to use compensation for damages as a condition for plea bargaining for bankruptcy offences. In such cases, the Public Prosecutor asks for damages to be compensated before giving his consent to the plea bargain.
Furthermore, Law no. 103/2017 introduced the cause of extinction of the offence for restorative conducts.
Pursuant to Article 162 ter of the Criminal Code, indeed, for offences prosecutable on a complaint, if the defendant fully recovers the caused damage by restitution or compensation and removes the damaging or dangerous consequences of the offence, before the opening of the first-degree trial, the Judge, having heard the injured party, declares the offence extinguished.
Legislative Decree no. 231/2001 (the “Decree”) was issued to implement Delegated Law no. 300 of 29 September 2000. The Decree introduced the concept of the criminal and administrative liability of legal entities, companies and associations (including those without legal personality) by starting from the consideration that illegal activities carried out within a company are not the mere result of an individual’s private initiative but arise more frequently from a pervasive company policy and from decisions made at the top levels of the company concerned.
Pursuant to Article 5 of the Decree, such liability arises when certain crimes are committed by individuals holding representative, administrative or directional functions, or by individuals who have even de facto responsibility for management and control of the entity or individuals under the direction or supervision of such individuals.
The crimes triggering the company’s liability are different. Indeed, the Decree includes many categories of crimes, such as crimes against the Public Administration (bribery, corruption, etc), crimes committed by criminal organisations, white-collar crimes and private to private bribery, money laundering crimes, information technology crimes, market abuse, injuries occurring as a consequence of the violation of rules regarding health and safety in the work place, crimes against industry and commerce, and environmental crimes.
Every year, the Legislator inserts new crimes within the Decree, in order to extend the scope of the Decree.
When some of the abovementioned crimes are committed, if the company has not carried out proper attempts to prevent the commission of the crime (ie, had in place a compliance programme suitable for preventing offences), the company itself can be subject to some penalties, such as pecuniary sanctions (up to EUR1.5 million), disqualifying sanctions (such as disqualification from the exercise of activities, suspension/revocation of licences, concessions or authorisations that had been functional to the perpetration of the offence, prohibition on contracting with Public Administration, exclusion from benefits or contributions, and a ban on advertising goods or services), confiscation or the publication of the court’s judgment.
For all these reasons, the adoption of an Organisational Model as provided by the Decree is suggested in order to improve the company’s organisation, and to obtain an exemption from liability for the crimes envisaged in the Decree.
The exemption from liability is possible only if the company can demonstrate that it adopted and effectively implemented an Organisational Model suitable for preventing the specific crime concerned, before the crime was committed, and that the task of supervising the efficacy of the Model was entrusted to a Supervisory Body.
The ex post implementation of an Organisational Model after a relevant crime has been committed can no longer exempt the company from liability, but it allows the company to obtain a reduction of the pecuniary sanctions and to avoid the application of the disqualifying sanctions.
In recent years, prosecutors have increasingly investigated companies for crimes committed in the interest of the company itself, or for its benefit.
In particular, investigations have concerned both multinational companies and small-medium enterprises.
Many cases have concerned companies operating in the medical sector (such as pharmaceutical or medical devices sectors), but industrial production companies have also been investigated.
Most proceedings against companies for corporate liability have been registered for crimes of international or domestic corruption, especially in the energy and oil and gas sectors, in which courts have imposed pecuniary or disqualifying sanctions.
Other proceedings have been started for crimes of injury in the workplace and also against small production companies, as the Decree applies to all kind of legal entities, not just the bigger ones.
Indeed, according to the Judges, the crimes were committed in the interest or on behalf of the company. For example, in the corruption cases the crimes were committed to increase the company’s profits, while in the injury cases the crimes occurred as a result of the company’s policy to save on safety costs and measures.
In other cases, companies obtained a plea bargain as a result of the implementation ex post of the Organisational Model, the full compensation for the loss or damage and the availability of the profit of the crime for confiscation.
In the last year, Law no. 3/2019 also introduced new changes to Decree no. 231/2001.
Firstly, in corruption cases, disqualification sanctions can now be applicable for up to seven years if the offender holds functions of representation, administration or management of the entity.
Secondly, the crime of unlawful influence has been introduced into the Decree as a predicate crime of corporate liability.
Finally, Law no. 39/2019 introduced the crime of fraud in sports competitions and the crime of abusive exercises of gaming or betting activities into the Decree.
The inclusion of tax crimes among the predicate offences is increasingly expected.
Changes and developments in white-collar crime in Italy have been ongoing since the 1990s after big corruption scandals hit the country. Several governments in past years have tried to influence the fight against crime but never with a big and organic reform.