ITALY Law and Practice Contributed by: Enrico Maria Mancuso, Federico Bracalente, Marco Accorroni and Marco Mariotti, Herbert Smith Freehills Kramer LLP
3. Core Financial Crime Offences 3.1 Fraud and Dishonesty Offences Italian criminal law does not have a single general fraud statute. The principal offences are the following. • Fraud (Article 640 ICC): deception or artifice induc - ing error in the victim, resulting in unjust profit and corresponding harm – fines and imprisonment from six months to three years (aggravated to one to five years in case of fraud against the state). • Computer fraud (Article 640-ter ICC): fraud through unauthorised interference with computer systems or data manipulation – fines and imprisonment from six months to three years. • Embezzlement (Article 646 ICC): misappropriation of entrusted assets – fines and imprisonment from two to five years. • Fraudulent bankruptcy (Articles 216 et seq. Law No 267/1942 and Articles 322 et seq Legislative Decree No 14/2019): asset dissipation, preferen - tial payments and false accounting by directors of insolvent companies – imprisonment from three to ten years. • Misappropriation of public funds (Article 316-bis ICC): misuse of public grants or subsidies, includ - ing EU funds – imprisonment from six months to four years. All principal fraud offences require intentional con - duct, a causal connection between the deceptive conduct and the harm or unjust enrichment, and – in most cases – actual economic prejudice to the victim. 3.2 Bribery and Corruption Public Sector Bribery Italian law provides a detailed and graduated frame - work of public sector corruption offences. The principal crimes are the following. • Bribery through acts conflicting with official duties (Article 319 ICC): a public official receives money or other benefits, or accepts a promise thereof in exchange for performing (or having performed) an act conflicting with the duties of their office, or in exchange for omitting or delaying (or having omit -
(applicable even outside criminal proceedings; see 6.3 Proceeds of Crime Recovery ). Seizure as a Precautionary Measure Under the ICCP, the judge may order preventive sei - zure at the public prosecutor’s request, including before formal charges, provided that: • there are reasonable grounds to believe that a criminal offence has been committed (fumus com - missi delicti); and • there is a risk that the free availability of the asset would aggravate or perpetuate the consequences of the offence or facilitate the commission of fur - ther offences (periculum in mora). Preventive seizure may also extend to assets liable to confiscation, including assets of equivalent value (where the direct proceeds of the crime cannot be specifically identified). Preventive Confiscation Under Legislative Decree No 159/2011 (the “Anti-Mafia Code”), assets may be seized and ultimately confis - cated outside criminal proceedings and independently of any charge or conviction. These measures may be applied against individuals deemed socially danger - ous, including on the basis of a presumed connection to organised crime or mafia-type associations (see 6.3 Proceeds of Crime Recovery ). Extension to Third Parties Both regimes may be extended to assets held by third parties – including nominees, beneficial owners, family members, associates and corporate vehicles – where the interposition is deemed fictitious or the third party is considered a mere nominee of the suspect. Cross-Border Reach Italian authorities may seek the freezing of assets located abroad through EU or multilateral co-oper - ation.
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