ITALY Law and Practice Contributed by: Enrico Maria Mancuso, Federico Bracalente, Marco Accorroni and Marco Mariotti, Herbert Smith Freehills Kramer LLP
4. Prosecution and Trial Process 4.1 Initiating a Prosecution In Italy, financial crime prosecutions are initiated once the public prosecutor receives notice of a crime through law enforcement investigations, regulatory referrals or complaints. The prosecutor then opens a formal criminal investigation. Prosecutions can be initiated without arrest. The system does not rely on summons or postal requisi - tions. Instead, individuals may be notified that they are under investigation and may be summoned for questioning. Arrests are possible but are not required to start proceedings. The decision to prosecute is made by the public pros - ecutor, who acts independently under the principle of mandatory prosecution. In practice, however, due to resource constraints and priority criteria defined by each Public Prosecutor’s Office, not all reported mat - ters result in active investigation. 4.2 Due Process and Bail Duration of Financial Crime Prosecutions Financial crime cases generally take longer to pros - ecute due to multiple defendants, complex corporate structures, large volumes of evidence, cross-border mutual legal assistance and parallel administrative proceedings. Bail and Pre-Trial Detention The default rule is liberty pending trial. Pre-trial deten - tion is used only if strict legal conditions are met (risk of flight, evidence tampering, or repetition of offenc - es). Alternatives to custody (eg, house arrest, report - ing obligations, asset restrictions) are commonly used in white-collar cases. Italy provides for statutory limits on pre-trial detention, including phase-based time limits; if exceeded, the defendant must be released. 4.3 Public or State Funding Legal aid is available in criminal proceedings, includ - ing financial crime cases, covering legal fees and essential defence costs. Eligibility for criminal legal aid in Italy is primarily based on a means test (income
The main offences under the Copyright Act (Law No 633/1941) include: • basic copyright violations (Article 171) – fines, aggravated to imprisonment up to one year; • software and database piracy (Article 171-bis) – fines and imprisonment from six months to three years with further aggravating circumstances; • other serious copyright violations (Article 171-ter), including unauthorised reproduction and dissemi - nation of protected works – fines and imprison - ment up to four years; and • unlawful dealing in conditional-access decoding devices (Article 171-octies) – fines and imprison - ment from six months to three years with further aggravating circumstances. 3.8 Greenwashing and Environmental Pollution Violations In Italy, both greenwashing and environmental pollu - tion violations are recognised as civil, administrative and (in certain cases) criminal wrongdoing. Green - washing is not a standalone offence but is addressed as an unfair commercial practice under the Consumer Code (Legislative Decree No 206/2005), enforced by the AGCM through administrative fines and corrective orders. Environmental pollution constitutes a criminal offence under Articles 452-bis and 452-quater ICC, carrying imprisonment and significant fines for individuals and corporate criminal liability under Decree 231. The Environmental Code (Legislative Decree No 152/2006) provides for additional administrative sanctions and civil liability. Enforcement is multilayered: • criminal prosecution by public prosecutors sup - ported by environmental police units; • administrative enforcement by local environmental authorities; and • civil claims for damages and restoration by state authorities and private parties.
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