Italy: Comment on the Money Laundering Section of the Italian Penal Code
| DOI | https://doi.org/10.1108/eb025884 |
| Published date | 01 April 1998 |
| Date | 01 April 1998 |
| Pages | 191-195 |
| Author | Carlo Zaccagnini |
| Subject Matter | Accounting & finance |
Journal of Financial Crime — Vol. 6 No. 2 — International
Italy: Comment on the Money Laundering Section
of the Italian Penal Code
Carlo Zaccagnini
BACKGROUND AND LEGISLATIVE
EVOLUTION
The first legislative step undertaken by the Italian
Parliament to detect money laundering dates back
to Decree 59, issued in March 1978 and brought
into force by Law 191/1978. The Decree intro-
duced s. 648 bis into the Italian Penal Code; it was
entitled 'Substitution of money or funds deriving
from armed robbery, racketeering or kidnapping
for reward'. The new offence was based on the
structure of s. 648 'Handling stolen goods'; the
crime was punishable with a sentence of between
four and ten years' imprisonment. The introduc-
tion of s. 648 bis was required for two reasons: on
the one hand, to address the concern arising from
the numerous terrorist kidnappings and blackmail
occurring in Italy at that time; on the other, to
strengthen the criminal repression of the 'specified
unlawful activities'.
However, the Italian Parliament definitively
realised the 'macro-criminal progression' of money
laundering offences after the implementation of
international legislative initiatives such as Recom-
mendation 10 adopted by the Committee of Min-
isters of the Council of Europe on 27th June,
1980;
the United Nations Convention Against
Illicit Traffic of Drugs and Psychotropic Substan-
ces,
adopted in Vienna on 19th December, 1988,
and the Convention on money laundering — the
Research, the Seizure and Confiscation of the Pro-
ceeds of Crime — held in Strasbourg in Novem-
ber 1990.
In effect, the Vienna Convention and the Coun-
cil of Europe Convention sensibly influenced the
legislative evolution of
s.
648 bis. This was initially
ratified and implemented in Italy through Law 55
of March 1990, known as 'the Anti Mafia Law'.
Section 23 of the above enactment amended, after
12 years, the previous version of s. 648 bis. The
reform: (i) widened the list of 'predicate crimes'
realised through the introduction of offences con-
cerning the production and traffic of narcotic or
psychotropic substances, (ii) criminalised conduct
'obstructing the identification of the illicit origin of
the assets'; (iii) lessened the burden of proof on
the prosecution to demonstrate the mens
rea
of the
offence; (iv) moreover, the maximum sentence
was increased from 10 to 12 years; (v) the reform,
likewise, introduced one aggravating circumstance
where the offence was 'committed in the course of
a professional activity'. Finally, s. 24 of the same
law introduced s. 648 ter entitled 'Utilisation of
money, goods or assets of unlawful origin'.
The Strasbourg Convention has been imple-
mented in Italy through Law 328 of August 1993.
This law has amended — just three years after the
previous reform — s. 648 bis and 648
ter.
The new
version of s. 648 bis has criminalised two new
behaviours: the 'transfer' of ill-gotten gains and the
performance of 'other operations'; therefore, the
major innovation introduced by this legislative
intervention consists of the abolition of the list of
the 'specified unlawful activities'. Thus, since the
reform, the list of predicate crimes has been
extended to all offences carried out intentionally.
Law 328 has also introduced a special mitigating
circumstance for laundering assets derived from
offences punishable with up to five years' impris-
onment. The
nomen
juris of the section has also
been changed from 'Substitution of money or
funds'
to 'Money laundering', in Italian 'Riciclag-
gio'.
THE PRESENT LEGISLATIVE
STRUCTURE
The first paragraph of
s.
648
bis
now provides:
'Apart from participation in the [predicate]
offence, any person who substitutes or transfers
money, goods or assets obtained by means of an
intentional criminal offence, or performs any
other operation in relation to them in such a
way as to conceal the identification of illicit
provenance of the said money, goods or assets,
shall be punished by imprisonment of between
4 and 12 years and by a fine of between 2 and
30 million liras.'
Page 191
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