ITALY Law and Practice Contributed by: Alessandro Pistochini, Davide Giorgiadi, Giulia Barattini and Carlotta Scozia, Pistochini Avvocati Studio Legale
the crime reported or at uncovering the agent who has acted in breach of the law. Exonerating Circumstance for Legal Entities Article 17 of Legislative Decree No 231/2001 states that disqualifying sanctions are not appli - cable if, after the unlawful behaviour but before the beginning of the trial, the company is able to meet three requirements: • full compensation for damage and removal of any detrimental consequence of the crime; • removal of the organisational inefficiencies that determined the crime through the adop - tion and implementation of an organisational model pursuant to Legislative Decree No 231/2001; and • making the “profit” arising from the crime available for confiscation. Aggravation Over the years, the offences against public administration have been reformed, increasing the negative consequences that can be added to the main penalty to strengthen deterrence. These negative consequences include the fol - lowing. • Accessory penalties – Article 317-bis of the ICC provides that, in case of conviction for certain offences, the following accessory pen - alties are applied: (a) permanent disqualification from public office; and (b) permanent incapacity to contract with public administration except to obtain public services (however, if imprisonment is imposed for a period not exceeding two years, or if the mitigating circumstance under Article 323-bis, paragraph 1 of the ICC applies, the disqualification and pro - hibition are temporary).
• Confiscation – Law No 300/2000 has provid - ed for mandatory confiscation of the product, profit or price derived from the commission of one of the offences specified in Articles 314 to 321 of the ICC, if confirmed by conviction or subject to a plea agreement. Regarding the assets seized in relation to the crimes referred to in Article 322-ter of the ICC, those other than money may then be entrusted to judicial custody. • Monetary compensation – Article 322-quater of the ICC provides that, in case of conviction for certain offences against public administra - tion, the payment of an amount equivalent to the price or profit of the offence is always ordered as monetary compensation in favour of the injured administration. This amount is added to the compensation for damages. It constitutes the necessary condition for the application of certain procedural institutes, such as conditional suspension of the sen - tence and plea bargaining. For the crimes referred to in Articles 314 (par - agraph 1), 317, 318, 319, 319-bis, 319-ter, 319-quater (paragraph 1), 320, 321, 322 and 322-bis of the ICC, the offence cannot be con - sidered particularly insignificant; therefore, Arti - cle 131-bis of the ICC cannot be applied. In the Italian criminal system, there is also an additional aggravating circumstance, known as recidivism, which refers to an individual who, having previously been convicted of a crime, subsequently commits other offences. This circumstance is thus related to the offender’s behaviour and entails different increases in the penalty depending on how the individual com - mits another crime. Simple, aggravated and repeated recidivism are distinguished.
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