ITALY Law and Practice Contributed by: Enrico Maria Mancuso, Federico Bracalente, Marco Accorroni and Marco Mariotti, Herbert Smith Freehills Kramer LLP
Colpa refers to unintentional conduct resulting alter - natively from: • carelessness (failure to adopt the precautions required by the applicable rules of conduct, dis - traction, lack of due care); • imprudence (unjustified risk-taking); • failure to comply with the leges artis governing a professional activity; or • violation of rules aimed at preventing specific harmful events. Colpa cosciente arises where the agent foresees the possibility of the harmful event but proceeds believing it will not occur – distinguished from dolo eventuale in that the agent does not accept the risk. Criminal liabil - ity based on colpa is exceptional, arising only where expressly provided for by statute. Attempt A criminal offence may be punished as attempted crime where the defendant has performed acts both suitable and unequivocally directed towards the com - mission of the offence but fails to complete it. The applicable penalty is reduced by one-third to two- thirds. Conspiracy Mere conspiracy is generally not punishable, as criminal liability requires that the co‑conspirators go beyond the agreement by attempting or committing the intended criminal offence. Nevertheless, Italian law provides for specific statutory exceptions, most notably Article 416 ICC, establishing a standalone offence for the creation of, or participa - tion in, an association of three or more persons aimed at committing an indeterminate number of criminal offences – a charge frequently brought in large-scale fraud, money laundering and tax crime prosecutions. Corporate criminal liability Criminal liability of legal entities, including companies, was introduced into the Italian legal system by Leg - islative Decree No 231/2001 (“Decree 231”). Under Decree 231, a company may be held liable where a predicate offence is committed in its interest or for its
benefit by senior managers or persons subject to their direction or supervision. Predicate offences include a broad range of financial crimes, such as fraud against the state or the EU, unlawful receipt of public disbursements, money laun - dering, self-laundering, fraudulent use of non-cash payment instruments, tax fraud, smuggling, market manipulation and insider trading. Liability may be avoided if the company adopted and implemented an adequate organisational model designed to prevent such offences. The conditions for exclusion differ depending on the offender’s status. Where the offence is committed by a senior manager, the company must also prove that: • it appointed a supervisory body with autonomous monitoring powers; and • the offence was carried out through fraudulent circumvention of the organisational model. Where committed by a subordinate, liability may be excluded by demonstrating that the offence was not made possible by failures in management, organisa - tion or supervision. Sanctions include: • financial penalties; • disqualification measures (including suspension or revocation of licences and authorisations, bans on contracting with public authorities, exclusion from public grants and incentives, and prohibitions on advertising); • confiscation of the proceeds of the offence; and The burden of proof in all criminal proceedings against individuals, including those relating to financial crimes, bears on the public prosecutor. The existence of the crime must be proven beyond any reasonable doubt. By contrast, in corporate criminal proceedings under Decree 231, while the standard of proof remains the same, the allocation of the burden of proof differs depending on the status of the offender. Specifically, for the public prosecutor to establish corporate liabil - ity where the offence is committed by: • publication of the conviction judgment. 1.2 Burden and Standard of Proof
104 CHAMBERS.COM
Powered by FlippingBook