ITALY Law and Practice Contributed by: Alessandro Pistochini, Francesca Lazzeri, Andrea Gaudio and Guido Stampanoni Bassi, Pistochini Avvocati Studio Legale
• one of the offences pursuant to Articles 318, 319, 319-ter, 319-quater, 320, 321, 322-bis, 353, 353- bis and 356 of the ICC is perpetrated; • the author voluntarily reports the crime to the authority, provides evidence of the crime and helps to identify the other perpetrators; and • the perpetrator discloses the crime before being informed that they are under investigation and within four months of the offence being perpe - trated. Furthermore, the perpetrator is required to make avail - able the benefit received or, where this is not possible, a sum of money of equivalent value, or to provide information useful to identify the beneficial owner of the advantage. This initiative must also be carried out within four months of perpetration of the crime. The non-punishable clause is not applicable if the self-incrimination is aimed at perpetrating the crime reported or at uncovering the agent who has acted in breach of the law. Exonerating Circumstance for Legal Entities Article 17 of Legislative Decree No 231/2001 states that disqualifying sanctions are not applicable if, after the unlawful behaviour but before the beginning of the trial, the company is able to meet three requirements: • full compensation for damage and removal of any detrimental consequence of the crime; • removal of the organisational inefficiencies that determined the crime through the adoption and implementation of an organisational model pursu - ant to Legislative Decree No 231/2001; and • making the “profit” arising from the crime available for confiscation. Aggravation Over the years, the offences against public adminis - tration have been reformed, increasing the negative consequences that can be added to the main pen - alty to strengthen deterrence. These negative conse - quences include the following. • Accessory penalties – Article 317-bis of the ICC provides that, in case of conviction for certain
offences, the following accessory penalties are applied: (a) permanent disqualification from public office; and (b) permanent incapacity to contract with public administration except to obtain public services (however, if imprisonment is imposed for a peri - od not exceeding two years, or if the mitigating circumstance under Article 323-bis, paragraph 1 of the ICC applies, the disqualification and prohibition are temporary). • Confiscation – Law No 300/2000 has provided for mandatory confiscation of the product, profit or price derived from the commission of one of the offences specified in Articles 314 to 321 of the ICC, if confirmed by conviction or subject to a plea agreement. Regarding the assets seized in relation to the crimes referred to in Article 322-ter of the ICC, those other than money may then be entrust - ed to judicial custody. • Monetary compensation – Article 322-quater of the ICC provides that, in case of conviction for certain offences against public administration, the payment of an amount equivalent to the price or profit of the offence is always ordered as monetary compensation in favour of the injured administra - tion. This amount is added to the compensation for damages. It constitutes the necessary condition for the application of certain procedural institutes, such as conditional suspension of the sentence and plea bargaining. For the crimes referred to in Articles 314 (paragraph 1), 317, 318, 319, 319-bis, 319-ter, 319-quater (para - graph 1), 320, 321, 322 and 322-bis of the ICC, the offence cannot be considered particularly insignifi - cant; therefore, Article 131-bis of the ICC cannot be applied. In the Italian criminal system, there is also an addi - tional aggravating circumstance, known as recidivism, which refers to an individual who, having previously been convicted of a crime, subsequently commits oth - er offences. This circumstance is thus related to the offender’s behaviour and entails different increases in the penalty depending on how the individual com - mits another crime. Simple, aggravated and repeated recidivism are distinguished.
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