ITALY Law and Practice Contributed by: Alessandro Pistochini, Francesca Lazzeri, Andrea Gaudio and Guido Stampanoni Bassi, Pistochini Avvocati Studio Legale
As for the administrative liability of legal entities, the limitation period under Article 22 of Legislative Decree No 231/01 is five years after the crime was committed. This term can be suspended by a request to apply pre - cautionary measures and by an entity being charged with having committed the administrative offence. In the latter event, the statute of limitations does not run until the final judgment becomes enforceable. 3.2 Geographical Reach of Applicable Legislation Italian criminal law applies to crimes committed on Italian territory. More specifically, under Article 6 of the ICC, territorial jurisdiction is established (i) over conduct that occurred either wholly or partially within the territory of the state; and (ii) even in those circum - stances where the offence is wholly committed abroad but its effects take place in the national territory. Nevertheless, with regard to certain serious offences such as corruption, Articles 9 and 10 of the Criminal Code establish national or universal jurisdiction over cases not covered by the above-mentioned Article 6. Specifically, Italy has extraterritorial jurisdiction over conduct wholly committed abroad that does not have any effect in the national territory when three condi - tions are met: • the perpetrator is within Italian territory; • the double-criminality principle is satisfied; and • a request for punishment is made by the Minister of Justice or the injured party. However, it should be mentioned that Anti-corruption Law No 3/2019 has recently facilitated the prosecution of corruption offences committed by a national or for - eign citizen by eliminating the condition that a request for punishment for such crimes should be made by the Minister of Justice or the injured party. 3.3 Corporate Liability Legislative Decree No 231/2001 introduced adminis - trative liability of legal entities in the event that any of the crimes listed in Legislative Decree No 231/2001 (including crimes against public administration) are
perpetrated by directors, managers or employees for the benefit of – or in the interest of – the company. This is an autonomous liability of the legal entity (so-called organisational negligence) for not having adopted organisational models capable of preventing the crimes listed in the Decree from being committed (for further details, see 4.5 Safe Harbour or Amnesty Programme and 8.1 Compliance Obligations ). In connection with this point, it is worth mentioning that a company’s liability arising from crimes commit - ted is completely independent of corporate events fol - lowing the perpetration of the crimes. Indeed, accord - ing to Articles 28, 29 and 30 of Legislative Decree No 231/01, in the case of changes to a legal entity’s organisational structure, the company remains liable for the offences committed before the date on which the changes took effect; in the same way, in the event of a merger or takeover, the resulting legal entity is liable for the offences for which the previous enti - ties were responsible before the merger or takeover. However, in the event of a partial split-up, the divided company remains liable for crimes committed before the split. In general terms, the Italian criminal system is founded on the presumption of innocence, so that the burden of proof in demonstrating that a crime has been com - mitted lies with the Prosecutor. This means that, if there is any doubt about the defendant’s guilt, they must be acquitted in accordance with the in dubio pro reo rule. With regard to an individual’s liability, the first defence for any crime (not only bribery or other crimes against the public administration) may be based on the dem - onstration that the so-called objective elements of the offence have not been satisfied or sufficiently proved by the prosecutor. 4. Defences and Exceptions 4.1 Defences Another defence strategy may consist of attempting to demonstrate the lack of intent by the defendant to
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