ITALY Law and Practice Contributed by: Giorgio Vagnoni, Alessio Di Pietro, Alessandra Mosca and Cesare Placanica, LAWP Studio legale e tributario
by the fraudster, as well as all the relevant interests, gains and proceeds (Article 2033 of the ICC). Similarly, whenever assets are subject to misappro - priation, the claimant has the chance to claw back their property from the defendant through an action for recovery (Article 948 of the ICC), intended to ascertain the ownership of the property and request its restitu - tion. Where assets have been transferred to a third party, the defendant has to obtain the return of the assets directly from that third party – failing which, the claim - ant is entitled to obtain indemnification for an equiva - lent value, in addition to any other damage suffered. Bona Fide Third Party Confiscation and the aforementioned civil actions face certain limitations when clashing with the inter - ests of a bona fide third party. If the third party is not aware of the origins of the assets, nor of the unlawful conduct of the offender (provided that this unaware - ness is irreproachable and is not the result of wilful misconduct or gross negligence) and they have not received any indirect advantage from it, the damaged party may neither recover the assets from the bona fide third party nor bring claw-back actions or order confiscation against them. This is without prejudice to any other indemnification remedy that the damaged party may have against the offender and to the right to request expropriation or confiscation “per equivalent” of other assets of the offender. 1.6 Rules of Pre-Action Conduct Criminal Proceedings For fraud claims not directly prosecuted by public offi - cials, the offended party is required to make a com - plaint against the offender to be filed with a competent public prosecutor’s office or with any other criminal police authority. A complaint must be made within three months following the date the offended party received notice of the relevant criminal act. Certain fraud claims of higher importance can be initiated by the public prosecutor’s office on its own motion – for instance, fraudulent acts against the government, fraudulent acts implying considerable damage to the claimant’s property, fraudulent acts
committed through threats, and other offences with a higher degree of danger. Civil Proceedings For certain civil claims, as a pre-action rule of con - duct, it is necessary to file a preliminary request to access ADR methods to facilitate out-of-court agree - ments. The two main ADR methods available are: • mediation before a third-party mediator; and • assisted negotiation with the necessary support of the parties’ attorneys. 1.7 Prevention of Defendants Dissipating or Secreting Assets To prevent dissipation or secreting of assets, the fraud victim may have recourse to several provisional meas - ures under both civil and criminal law, which can be granted if two requirements are met: • fumus boni iuris – arising when the substantial likelihood of success of an alleged claim is ascer - tained, prima facie, by the court; and • periculum in mora – arising in the presence of a well-founded fear that delays in the issuance of a certain order on the merits will probably jeopardise the claimant’s interests. Criminal Proceedings Criminal procedural law provides instruments for the early freezing of assets involved in fraud schemes, where each instrument fulfils a different and specific purpose, as follows: • Conservative seizure ( sequestro conservativo ) (Article 316 of the Italian Code of Criminal Proce - dure) – this aims to prevent the offender disposing of the relevant assets and avoiding paying sanc - tions, court fees and any other amounts due as a result of a conviction. The Decree 149/2022 has excluded the possibility of ordering a conservative seizure solely to guarantee the paying of sanctions and court fees. Following investigations and indict - ment, it may be ordered by the competent court on money and assets belonging to the defendant and to other parties that fraudulently received owner - ship of said assets, as the transfer may be subject to claw-back actions.
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