ITALY Law and Practice Contributed by: Enrico Maria Mancuso, Federico Bracalente, Marco Accorroni and Marco Mariotti, Herbert Smith Freehills Kramer LLP
6.3 Proceeds of Crime Recovery Italian law provides for the recovery of financial ben - efit derived from criminal activity primarily through criminal confiscation under the ICC (upon conviction or plea agreement) and through preventive confisca - tion under the Anti-Mafia Code (independently of any conviction). Criminal Confiscation There are three types of criminal confiscation: • standard confiscation (Article 240 ICC) of instru - ments, price, proceeds or profit of the offence (including assets derived from reinvestment or transformation of net proceeds); • confiscation of equivalent value (where standard confiscation is not possible), available for certain crimes; and • extended confiscation (Article 240-bis ICC), apply - ing where the defendant holds assets dispropor - tionate to their declared income and cannot justify a lawful source – with a reversal of the burden of proof (provided only for certain crimes). For legal entities convicted under Decree 231, con - fiscation of the price or profits (or equivalent value) is mandatory. Confiscation is ordered by the criminal court in the judgment or plea agreement. Prior to judgment, preventive seizure may be ordered at any stage; in urgent cases, the public prosecutor or judicial police may act, subject to judicial valida - tion. Any interested party may petition the court to set aside the seizure order. Confiscation orders may be challenged before the court of appeal and the Supreme Court. Third parties who did not participate in the criminal proceedings may seek restitution of confiscated prop - erty: before the judge having control of the proceed - ings until the confiscation order becomes final (where a preventive seizure had previously been executed), and before the enforcement judge after the confisca - tion becomes final. Preventive Confiscation Under the Anti-Mafia Code, assets may be seized and ultimately confiscated outside criminal proceedings
and independently of any charge or conviction. These measures apply against individuals deemed socially dangerous – including on the basis of habitual crimi - nal activity, previous convictions for certain offences, a presumed connection to organised crime or the attempted commission of crimes of particular social danger. Confiscation generally applies to (i) assets of illicit ori - gin, including their reinvestment (or equivalent value), and (ii) assets presumed to be of illicit origin where there is a discrepancy between the subject’s declared income and actual wealth. A key feature of this regime is the reversal of the bur - den of proof: once the requisite social dangerousness is established, assets are presumed to be of illicit ori - gin where the above disproportion exists. A proposal for preventive patrimonial measures may be advanced by the public prosecutor, the National Anti- Mafia Prosecutor, the local police chief or the director of the Anti-Mafia Investigation Division. Courts decide after a hearing in camera and may order anticipatory seizure, which lapses if not confirmed within 30 days. Third parties holding rights over seized assets are called to intervene within 30 days of the execution of the seizure. The same applies to third parties holding rights in rem or personal rights of enjoyment or secu - rity over the seized assets. The confiscation order is subject to appeal; once final, any interested party may apply for its revocation on the ground that the statu - tory conditions were not met. Civil Recovery Civil recovery proceedings may run in parallel with criminal cases. Victims may obtain a civil damages award within the criminal judgment, and criminal judg - ments carry significant persuasive weight in parallel civil proceedings. 6.4 Victim Compensation and Asset Recovery Victims may obtain compensation for damages aris - ing from a criminal offence either by bringing a claim before the civil courts or by joining the criminal pro - ceedings as a civil claimant. Where the original mis - appropriated assets remain identifiable in the hands
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