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Italy: New Law to Combat Organized Crime Takes Effect

(Jan. 3, 2018) On November 19, 2017, new legislation to combat criminal activities of the Mafia (organized crime) entered into force in Italy. (Law No. 161 of October 17, 2017, Amending the Code of Anti-Mafia Legislation and Protection Measures Under Legislative Decree No. 159 of September 6, 2011, the Penal Code, the Implementing, Coordinating, and Transitional Rules of the Criminal Procedure Code, and Other Provisions, and Delegating Power to the Government for the Protection of Labor at Sequestered and Confiscated Companies (Law No. 161)), GAZZETTA UFFICIALE (Oct. 16, 2017), NORMATTIVA (in Italian).)

The main purposes of the new Law are to speed up the application of asset protection measures, make the appointment of judicial administrators more transparent, create a government unit for the administration of seized and confiscated assets, and include corruption, stalking, and terrorism within the scope of anti-Mafia legislation. (Codice Antimafia è Legge: Più Regole e Trasparenza, Corrotti come Mafiosi [The Anti-Mafia Code Is Law: More Provisions and Transparency, the Corrupt as Mobsters], R.IT (Sept. 27, 2017).)

Inclusion of International Terrorism in Anti-Mafia Legislation

The new Law expands the application of Legislative Decree No. 159 to those who in groups or in isolation carry out “preparatory, objectively relevant, or executive acts” aimed at subverting the order of the state through the commission of a crime having a terrorist purpose with international ramifications or participating in a foreign conflict in support of an organization that pursues terrorist aims. (Law No. 161, art. 1(1)(b).)

Personal Protection Measures 

Under the new Law a request for the application of protection measures against a person of interest must be filed with the chancellery of the sections or the tribunal of the district capital in the territory in which the person resides. (Id. art. 1(1)(b).) Protection measures include special surveillance and the prohibition of stay in one or more municipalities, other than the habitual residence, or in one or more regions. (Id. art. 1(2).) If the suspect must be detained, he/she is to be held in detention or imprisonment at a facility located outside the jurisdictional district of the judge directing the procedures. (Id. art. 1(3)(b).)

Asset Protection Measures

The court may impose certain asset protection measures on the person of interest as requested by the prosecutor who is competent before the court of jurisdiction in the district capital (Stefano Finocchiaro, La Riforma del Codice Antimafia (e Non Solo): Uno Sguardo d’Insieme alle Modifiche Appena Introdotte [The Reform of the Anti-Mafia Code (and More): A Look at the Changes Just Introduced, DIRITTO PENALE CONTEMPORANEO (Oct. 3, 2017)]), or by the national anti-Mafia and antiterrorism prosecutor, the respective prefect, or the director of the Anti-Mafia Investigative Directorate. (Law No. 161, art. 5(1)(a).) These authorities must adopt measures to avoid prejudice to investigations carried out in parallel with other proceedings. (Id. art. 5(1)(c).)

Also as a precautionary measure, the court may order the seizure of the property that the person of interest is able to dispose of when the value of the property is disproportionate to the person’s declared income or economic activity, or when, on the basis of sufficient evidence, there is reason to believe that such property was obtained as a result of illegal activities or that the funds that are being used are the proceeds obtained from any of such activities. (Id. art. 5(4).) The court may order the evacuation of buildings occupied without title or with a title dated prior to the seizure. (Id. art. 5(5)(b).)

When it is not possible for the court to proceed with the seizure because the assets are not available, or have been lawfully transferred to third parties in good faith, the seizure and confiscation may be imposed on other assets of the person of interest that have an equivalent value and proven legitimate origin. (Id. art. 5(9).) Asset protection measures ordering, rejecting, or revoking the seizure of assets must be communicated to the prosecutor ascribed to the respective appellate court, to the General Attorney of the Republic, and to the interested parties. (Id. art. 6(1)(a).)

Judicial Administration of Confiscated Assets

The judicial order that seizes and confiscates assets connected with illicit economic activity and suspected of Mafia infiltration must also appoint a judicial administrator to manage those assets. (Id. art. 10(1)(1).) Mafia infiltration refers to the situation where sufficient indications exist to believe that the free exercise of a determined economic activity is directly or indirectly subject to criminal intimidation or conditions of subjection. (Id. art. 10(1)(1).) In these situations, the court may also order the judicial control of the economic activities and companies that are susceptible to a concrete danger of Mafia infiltration. (Id. art. 11(1).) This intervention requires the concerned persons to report to the judicial administrator all acts of disposition, payments made and received, professional duties discharged, and other fiduciary management decisions worth at least €7,000 (about US$8,311). (Id. art. 11(2)(a).)

Special Provisions for the Protection of Third Parties

Innocent third parties may request the court to recognize their lawful right to assets which have been subjected to protection measures in judicial anti-Mafia proceedings (id. art. 20(1)(c)), and up to 60% of the credits existing prior to the seizure order that are judicially verified must be paid by the state (id. art. 20(2)). Likewise, the appointed judicial administrator may request the judge to authorize the total or partial payment of credits existing prior to the seizure order, when such payments are connected to essential commercial relationships for the continuation of the concerned economic activity. (Id. art. 20(3).)

Assets subject to seizure or confiscation are excluded from a declaration of bankruptcy. (Id. art. 22(1)(a).) When the bankruptcy order encompasses the totality of assets belonging to an individual or all of the shareholders’ stock in a company, the seizure or confiscation order must also vacate the bankruptcy order over such assets. (Id. art. 22(7).)

Judicial authorities are empowered to request from Italian anti-Mafia agencies all information related to agricultural lands that are granted to beneficiaries through European funds. (Id. art. 28(1).)

Final Disposition of Seized or Confiscated Assets

A judicial decision resulting in a conviction issued in a proceeding in which assets have been seized or confiscated must order the definitive confiscation of money, assets, or other property whose legitimate provenance the convicted person cannot justify. (Id. art. 31(1)(a).) On the contrary, when an exculpatory ground exists on the basis of a statute of limitation defense or amnesty, the court must lift the seizure or confiscation order. (Id. art. 31(1)(a).) In case of death of the person whose assets have been seized or confiscated, the proceedings related to the financial aspects of the investigated crimes continue against the heirs or legal successors of the deceased. (Id. art. 31(1)(a).)

New Administrative Agency

The law creates the National Agency for the Administration and Destination of Assets Seized or Confiscated to assist with the administration of seized or confiscated property from organized crime, assigned to the Ministry of the Interior. (Id. art. 29(1).) For operational purposes, the Agency is subject to the control of the Accounting Court, which is managed by a director who answers to a Directive Council, supported by a Consultative Council, and monitored by an Auditing Council.  (Id. art. 29(3)-(6).)