Italian Supreme Court confirms confiscation of crime profits from companies in money laundering case

In its recent judgment No. 35362 filed on 20 September, the Italian Criminal Supreme Court ruled on the issue of the profit from crime that can be confiscated from the company pursuant to Article 19 of Legislative Decree 231/01, in a case of liability for money laundering committed by the sole director of the company.

In this case, the Court was called upon to express its opinion in relation to the appeal lodged by the company under investigation for the administrative offence referred to in Article 25 octies of Legislative Decree no. 231/01, against the order of the Court of Trieste, which had partially confirmed the preventive seizure ordered by the Judge of the preliminary investigations on sums of money found in the company's possession and considered - for equivalent value - the profit of the money laundering.

Among the grounds of appeal, the company's attorneys contested the existence of the prerequisites for confiscation provided for by Article 19 of Legislative Decree No. 231/01. The sums of unlawful origin received by the company - the appellant explained- were used to fulfil the obligations undertaken towards the financial administration and could not, therefore, assume the nature and consistency of the profit that should constitute the object of seizure for confiscation.

According to the Court, however, this reconstruction would collide with the economic and financial reality, since the availability of the sums obtained by the company thanks to the criminal conduct of the director certainly increased the company's assets, thus ensuring the presence of economic provisions used to fulfil its tax obligations.

The advantage, in that case, would have consisted in the possibility for the entity to avoid the risk of enforcement actions or judicial liquidation, as well as the danger of being put out of business.

"The assessment of the existence of the profit," concluded the Court of Cassation, rejecting the appeal, "must be conducted by taking into consideration the moment of the reuse, which gives the company a definite increase in assets, the destination of which is not relevant to exclude the profit previously made”.