ITALY Law and Practice Contributed by: Giorgio Vagnoni, Alessio Di Pietro, Alessandra Mosca and Cesare Placanica, LAWP Studio legale e tributario
for themselves or others – acquires, receives or con - ceals money or assets resulting from any offence. This provision punishes conduct that is not criminal in itself, but which may have criminal relevance if the offender is aware (or has reason to be aware) that money or goods they have acquired, received or con - cealed derive from a crime. Similarly, money laundering provisions (Article 648-bis of the Italian Criminal Code) are intended to prevent co-operation that may help the author of the crime to hide and disguise the unlawful origin of said money, goods and profits. Moreover, in 2015, the crime of self-money laundering was introduced (Article 648-ter1 of the Italian Criminal Code) to prevent the author of the crime from rein - vesting money, goods and profit from their previous offence. In the event that a civil action is initiated against two or more persons involved in the same offence (see 1.2 Causes of Action After Receipt of a Bribe ), they are deemed as jointly and severally liable to indemnify the claimant (Article 2055 of the ICC). 1.4 Limitation Periods For criminal actions, in accordance with Article 157 of the Italian Criminal Code, each crime has its own limitation period depending on the importance of the offence and is determined proportionally to the maxi - mum sanction prescribed by law – with a minimum of six years for the most serious crimes and four years for others. By way of example, in the case of generic fraud under Article 640 of the Italian Criminal Code (for which offenders are subject to imprisonment for up to five years), the limitation period is six years. For civil actions, Article 2946 of the ICC establishes a general limitation period of ten years, which starts from the moment when the relevant right may be exer - cised. Special limitation periods are established, for instance, for: • indemnification claims deriving from a tort (five years); • claims concerning corporate matters (five years); and
• revocatory actions for fraud incurred by creditors (five years). Statutory limitation periods may be subject to suspen - sion and interruption. 1.5 Proprietary Claims Against Property In cases where a claimant seeks the recovery of prop - erty misappropriated from them or that they were induced by fraud to transfer, some remedies are avail - able to retrieve property and/or equivalent sums. Criminal Proceedings In cases where a person is the victim of a fraudulent act, all those properties and assets that have been used to commit a crime – as well as all those proceeds representing the profit from or the result of the crime – are subject to confiscation (Article 240 of the Italian Criminal Code), so that they can be used to restore the rights of the claimant. Courts have discretion over confiscation measures, except for some cases where they are mandatory – for example, when targeting property that represents the converted proceeds of the fraud and/or the telematics and electronic devices used to commit a fraud. In the case of certain offences (eg, fraud against the State, to obtain public funds, abuse of a weak position of the defrauded, computer fraud, corruption, or within companies’ management), when it is not possible to directly confiscate assets used for the offence or the relevant proceeds, courts may still order confisca - tion “per equivalent” (targeting other properties of the offender for a corresponding value). Confiscation is allowed for assets belonging to the offender, to those who have assisted or facilitated the criminal conduct, or to those who – despite not being directly involved – have indirectly taken advantage of it. Civil Proceedings If transfer of ownership is fraudulently induced, the contract is cancellable (Article 1439 of the ICC), as described in 1.1 General Characteristics of Fraud Claims . Consequently, the offended person may request the restitution of assets unlawfully acquired
213 CHAMBERS.COM
Powered by FlippingBook