ITALY Law and Practice Contributed by: Alessandro Pistochini, Francesca Lazzeri, Andrea Gaudio and Guido Stampanoni Bassi, Pistochini Avvocati Studio Legale
Two Special Mitigating Circumstances Set Forth by Article 323-bis of the ICC The special mitigating circumstance under the first paragraph is met when the offences under Articles 314, 316, 316-bis, 316-ter, 317, 318, 319, 319-quater, 320, 322 and 322-bis of the ICC are particularly mild. In such an event, the sanction is reduced by up to one-third. Such a mitigating circumstance occurs when the whole offence is “barely offensive” with reference to the conduct carried out, the amount of economic damage or profit attained, the subjective attitude of the perpetrator and the event. The second mitigating circumstance occurs if the per - petrator made effective efforts to: • prevent any further consequences of the criminal activity; • provide evidence of criminal offences and identify other perpetrators; or • allow the seizure of the profits. In accordance with Article 25, paragraph 5-bis of Legislative Decree No 231/2001, the same mitigating measure is applicable to the benefit of a legal entity that meets all the above-mentioned conditions and adopts an organisational model suitable to prevent crimes of the same type. This circumstance (which is applicable only with ref - erence to the offences under Articles 318, 319, 319- ter, 319-quater, 320, 322 and 322-bis of the ICC) is a kind of active repentance post delictum that pro - vides a reduction of from one-third to two-thirds of the penalties. The collaboration is required to be full and effective. Non-Punishable Clause Set Forth by Article 323- Ter of the ICC Law No 3/2019 introduced a special non-punishable clause in the event of self-incrimination and effective co-operation with the judicial authority. This clause requires that:
out the pecuniary sanctions (fines) and the duration of imprisonment. The main positive outcomes of plea bargain proceed - ings are as follows: • the sanctions agreed with the prosecutor are reduced by a maximum of one-third; • if the judgment does not exceed two years of imprisonment (or two years of imprisonment combined with a financial penalty), the judgment itself does not entail the cost of the proceedings or the application of ancillary penalties and secu - rity measures, except for confiscation in cases set forth by Article 240 of the ICC; • if the judgment does not exceed two years of imprisonment (or two years of imprisonment com - bined with a financial penalty), the offence shall be extinguished if, within five years (if the judgment concerns a crime) or two years (if the judgment concerns a misdemeanour), the accused does not commit a crime or misdemeanour of the same kind; • according to Article 445, paragraph No 1-bis of the Criminal Procedure Code, the plea bargain sentence has no effect and cannot be used as evidence in other judicial proceedings (such as civil cases, disciplinary proceedings, tax proceedings or administrative proceedings); and • the Cartabia Reform, by amending Article 444, par - agraph 3-bis, has allowed the parties who request a plea bargain to condition its effectiveness on the exemption from the accessory penalties referred to in Article 317-bis ICC, or on the extension of the effects of conditional suspension to those penalties as well – should the court deem it mandatory to apply these accessory penalties, it shall reject the plea bargain request. Finally, it is important to highlight that, pursuant to Article 63 of Legislative Decree No 231/2001, admin - istrative liability may also be settled through a plea bargain agreement. Indeed, a company is entitled to settle its potential administrative liability with an agreement on pecuniary sanctions and on the dura - tion of disqualifying measures.
175 CHAMBERS.COM
Powered by FlippingBook