ITALY Law and Practice Contributed by: Alessandro Pistochini, Luca Moglia, Giovanni Bellissimo and Giulia Barattini, Pistochini Avvocati Studio Legale
trast, public or quasi-public entities may be subject to reporting duties, as public officials have reporting obligations and are required to bring to the attention of the competent authority the existence of any offence prosecutable ex officio. Multiple laws regulate corporate internal investiga - tions, notably the GDPR (Reg. 2016/679), the Italian Data Protection Code, Legislative Decree 24/2023 on whistle-blowing, and the Workers’ Statute (Law 300/1970). The latter restricts employee surveillance and inquiries into personal beliefs or unrelated mat - ters. If conducted under a lawyer’s direction within a crimi - nal law framework, such investigations fall under Arti - cles 327-bis and 391-bis et seq ICCP, allowing the defence (among other things) to obtain documents from public authorities. These activities require no prior judicial authorisation and may be carried out preventively upon mandate. Moreover, the lawyer benefits from legal professional privilege (Article 200 of ICCP) and all defence investigative acts are pro - tected by professional confidentiality (Article 327-bis et seq ICCP). 2.6 Prosecution Criminal prosecution is mandatory for the public pros - ecutor where the facts amount to a criminal offence. As said, the public prosecutor has no discretion not to proceed, unless it is determined that no offence has been committed or that there is insufficient evidence to support the charges. Regarding legal entities under Legislative Decree No 231/2001, prosecution occurs if offences are commit - ted in their interest or advantage by senior personnel or persons under their direction. In such cases, the public prosecutor has discretion to commence pro - ceedings against the entity. For further details, see 2.2
Nevertheless, the following instruments must not be disregarded: • summary penalty proceedings by decree: immedi - ate conviction upon prosecutor’s request without trial, limited to cases where both the prosecutor and the judge consider that only a pecuniary pen - alty should be imposed and no security measures are necessary; • suspension of proceedings with probationary supervision: applies under the sentence threshold and requires elimination of harmful consequences and possible compensation by the defendant; • oblation: voluntary payment extinguishing the offence: mandatory for misdemeanours punishable by fine and discretionary where detention or fine applies; and • reparatory conduct: extinguishes offences started by private complaint that may be withdrawn, upon full restitution or compensation and removal of harm. Moreover, pursuant to Legislative Decree No 231/2001, adoption or enhancement of organisational compliance models, active co-operation, and damage compensation by legal entities significantly influence liability and penalty mitigation (Article 17 of Legisla - tive Decree No 231/2001). For further details, see 1.6. Sentencing and Penalties . 3. White-Collar Offences 3.1 Criminal Company Law and Corporate Fraud There are several categories of offences that fall within the scope of economic criminal law, such as corporate crimes (see section 3.6 Financial Record- Keeping ), environmental crimes (see section 3.14 ESG-Related Offences ), tax offences (see section 3.5 Tax Fraud ), banking offences (see section 3.4 Insider Dealing, Market Abuse and Criminal Bank- ing Law ), and offences against the Public Administra - tion (see section 3.2 Bribery, Influence Peddling and Related Offences ), among others. These categories of offences are typically included within the notion of “economic criminal law” or “corporate criminal law.” However, many “ordinary” offences may also be com -
Initiating an Investigation . 2.7 Deferred Prosecution
Italy lacks instruments fully analogous to deferred or non-prosecution agreements, but it provides alterna - tive procedural mechanisms to resolve criminal pro - ceedings without trial, primarily through plea bargain - ing (for more, see 1.6 Sentencing and Penalties ).
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