Antonio Mura

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ANTONIO MURA Is Prosecution the Answer?
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PROCURA GENERALE DELLA REPUBBLICA presso la Corte
Suprema di Cassazione ROMA - ITALIA
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http//www.iaj-uim.orgsecretariat_at_iaj-uim.org
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ANTONIO MURA Is Prosecution the Answer? The
Italian Approach
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Italian law

• roots in ancient Roman Law
• typical example of continental civil law
  tradition
• experimenting with the insertion of foreign legal
  institutes
• great effort to eradicate illegality
• fight against Mafia

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Criminal action is mandatory in Italy

• When elements of a crime are collected
• the suspect must be prosecuted.
• Of the Full Code Test (English CPS Code)
• Evidential Stage
• Public Interest Stage
• only the former is applicable to Italian public
  prosecution

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• No discretion in choosing between Civil
  Investigation of Fraud procedures and criminal
  prosecution
• Nothing similar to HMRC's Criminal Investigation
  Policy

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Dropping a prosecution and dismissing a case

• do not fall under discretionary powers of the
  Public Prosecution
• are subject to a final (objective) decision by a
  judge
• If the judge does not agree to the request,
  he/she can order the Public Prosecution
• to conduct further investigations
• or to formulate the charge

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Position of Public Prosecutors in Italy

• the Judiciary, as intended in Italy, includes
  both Prosecutors and Judges
• similar levels of independence are granted
• recent reforms
• directive powers of the chief of the prosecution
  office
• supervision by the Prosecutor General

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Public Prosecution in Italy

• must be absolutely impartial
• has incisive powers during the investigative
  phase
• the police must report to the prosecutor, without
  delay, every information on crimes
• the prosecutor takes the direction of the
  investigations
• all police forces work under the direction and
  control of the Public Prosecution Office during
  the investigations
• plays a central role in the campaign against
  criminality

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Two features of the Italian legal system in
relation to organized crime

• 1) the offence of Association to commit crimes
• 2) multi-level fight against organized crime
  economic investigations, attachment in rem etc.

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The offence of Association to commit crimes
(different from the Conspiracy known in the
common law system)

• 3 persons join
• purpose to commit an undefined number of crimes
• The participation in this enterprise is a crime
  in itself, apart from the fact that its criminal
  aims are actually reached or not

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Mafia-type criminal association (Art. 416-bis
P.C.)

• anticipated safeguard
• useful against the omertà
• Association for committing drug traffic
  offences (Article 74, Law 309/90)
• High penalties
• 7 to 15 years of imprisonment for the
  participants in an armed Mafia organization
• 10 to 24 years for chiefs and promoters
• not less than 20 years for chiefs and promoters
  of an association for committing traffic in drug

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Implications

• when you are able to penetrate a Mafia group, a
  waterfall of heinous crimes comes to light
• a successful prosecution spreads throughout the
  association, involving several persons (sometimes
  hundreds).
• As a result
• maxi-trials, difficult to manage

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• But no effort can be spared to face the cancer
  of society
• the engagement to combat Mafia-like groups (of
  Italian or of other origins) will never be
  excessive
• attention and rigour are needed

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• Penal repression
• a need to combat organized crime
• but a difficult / insufficient tool
• One of the main peculiarities of Mafia-like
  criminality is its ability to regenerate

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• Other operative instruments are needed
• actions must be undertaken throughout civil
  society
• absolutely necessary to attack organized crime
  at the economic level

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Money and properties

• goals of every company activity
• symbols of success
• forces for further actions
• Stripping criminal associations of their
  possessions
• frustrates their plans
• shows that they are not unassailable
• takes away resources functional to finance
  further criminal undertakings
• Hence the importance of economic investigations,
  of attachment in rem and other tools of
  intervention

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A Confiscation Framework based on a multi-level
approach

• interim measures (seizure)
• (2) a traditional conviction-based confiscation
  of assets derived from the criminal offence
• (3) a system of confiscation based on alleviation
  of the burden of proof for convicted persons who
  cannot justify the origin of their assets
• (4) a preventive system of confiscation of assets
  in the possession of persons belonging to
  mafia-type organisations
• (5) the provision of money laundering as a
  specific offence

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• Neither confiscation, nor other deprivation of
  instrumentalities and proceeds of crime are
  provided for by Italian law as alternative to
  prosecution
• The competence for seizure and for confiscation
  belongs to the criminal courts

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• Appropriate training on economic and financial
  topics is provided both for judges and public
  prosecutors.
• Appeals can be filed against any decision also a
  final appeal to the Supreme Court on questions of
  law is granted.

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SEIZURE as an interim security measure
(Articles 253 and 321 C.P.C.)

• The seizure of assets prior to confiscation can
  be ordered by a criminal judge (or public
  prosecutor in urgent cases)
• (a) preventive seizure
• (b) probatory seizure

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(2) CONFISCATION of assets used or intended for
use in committing an offence, or which constitute
the proceeds or the profit of a crime (Article
240 P.C.)

• a security measure
• in general discretionary, decided by a Court upon
  conviction of the perpetrator
• but mandatory when the assets are the price of
  the offence, or the production, use, transport,
  possession or transfer of which constitute an
  offence
• in the latter case confiscation is possible even
  in the absence of a conviction
• ./.

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• other mandatory confiscation
• when the assets are the price or the profit of
  a public corruption offence (Article 322-ter
  P.C.)
• and when they are the product or the profit of
  money laundering (Article 648-quarter P.C.)
• value confiscation of proceeds of bribery etc. is
  possible (Articles 322-ter and 648-quater P.C.)

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(3) A certain reversal of the burden of proof,
after conviction of drug offences, organized
crime, money laundering

• The confiscation of money, properties or other
  assets held by the person is mandatory if
• the offender cannot explain the source of these
  assets
• and the assets are not commensurate with his/her
  economic activity
• not necessary to prove that the assets are
  derived, directly or indirectly, from an offence
  (Article 12-sexies, Legislative Decree 306/1992,
  as amended)

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(4) Seizure and confiscation of assets in
possession of persons suspected of belonging to a
Mafia-type organisation or of some other very
serious crimes (Article 2-ter, Law 575/65, as
amended)

• preventive measures
• independent of a conviction or a criminal
  investigation
• can be ordered on the basis of the threat that
  the person or the assets in question may pose to
  public security, when the amount of the assets is
  not commensurate with the income or the economic
  activity of the person
• ./.

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• circumstantial evidence is needed
• the measure may be reversed if evidence is
  brought that the assets have a licit origin
• the measure can concern assets either directly or
  indirectly controlled (through a third party) by
  the suspect
• if they belong to a third person, the owner can
  appoint a counsel to represent him/her in the
  proceeding
• ./.

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Double Track System

• Seizure/confiscation can be ordered also with
  reference to assets already seized during a
  criminal investigation or trial
• effects suspended till the end of the
  investigation or of the criminal trial
• effects stop if the criminal trial results in the
  confiscation of the same assets

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(5) Money laundering criminalised as a separate
offence

• Article 648-bis P.C. prohibits the substitution
  and transfer of money, goods or assets obtained
  through intentional criminal offences and the
  concealment of their origin
• Article 648-ter P.C. prohibits the use of money,
  goods or assets obtained by means of criminal
  offences in economic and financial activities
• Both punished by 4 to 12 years imprisonment, plus
  a fine
• All crime approach any intentional criminal
  offence can be a predicate offence to money
  laundering

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To sum up

• prosecution of every crime committed in the
  country is mandatory
• proceeds of crimes as well as (suspect)
  crime-related assets can be seized and
  confiscated in various forms
• final decisions fall under criminal jurisdiction
• the Public Prosecution is competent to direct
  investigations on crimes, as well as to trace and
  freeze the proceeds

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• prosecution and seizure/confiscation are not
  alternatives to each other
• relations between seizure/confiscation, on one
  hand, as preventive measures (independent of a
  conviction or a criminal investigation), and
  prosecution, on the other hand, can be considered
  as complementary
• preventive procedure and prosecution two basic
  components of an articulate system, whose aim is
  to face the relations between Mafia and economy

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• In this framework
• Is Prosecution the Answer?

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• The Italian Approach
• Prosecution is an Answer
• a necessary answer
• but not the only answer

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A multi-level approach

• Incisive instruments on the economic ground are
  essential
• in combination with / by the side of
• prosecution
• not, in our mind, an alternative to prosecution

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• Criminal phenomena widespread in many countries
• a systematic strategy is needed
• investigative and judicial cooperation at the
  European and international levels

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• Grazie per la vostra attenzione!
• Thank you for your kind attention!
• antonio.mura_at_giustizia.it