New crime of self-laundering: impact on organisational model 231
According to Art. 3 of Law 186/2014, which came into force on January 1, 2015, commits crime of “self-laundering”, who personally launders,
actually uses, substitutes or transfers money, properties or other benefits coming from intentional criminal acts, in economic, financial, business or speculative activities, in order to obstruct identification of their criminal origin.
Self-laundering crime, is included in crimes list assumed by Lgs D. 231/2001 on corporate responsibility; in case of reuse, within entrepreneurial activity, of proceeds obtained by crimes committed by the company for interest of benefit of the same, the company will be considered liable, pursuant to art.25 octies of Italian Legislative Decree 231/01, entitled “Rules of Administrative Liability for legal entities, companies and associations without legal status”.
According to this regulation, fraud, bribery, corruption as well as corporate crimes, such as false corporate communication, stock manipulation and false accounting, may even be attributable to the company when committed by natural persons. Italian Legislative Decree 231/01 requires companies to show that they have implemented a Corporate Organizational Model aimed at preventing the occurrence of such crimes.
The operational steps that lead to the drafting of the Organizational Model, and therefore represent the contents of the same, are the following:
-The identification of the activities in which such crimes can be committed
-Risk analyses concerning crimes
-The definition of checks to be put in place in order to prevent the occurrence of such crimes.
-The drafting of a company code of ethics
-The constitution of an independent supervisory body including an expert penal lawyer and the definition of its relative responsibilities
-The determination of obligations in terms of reporting to the supervisory body
-The establishment of a disciplinary system for sanctioning any non-compliance with the measures indicated in the organizational models
-The scheduling and implementation of training
Introduction of this new crime in Italian legislative contest, has created conditions for a strong connection with the existing tax crime; just think that the latter, by its nature, normally generates an economic benefit, usually obtained by tax evasion, illegal conducts, fraudulent or disloyal tax returns that give a tax saving or proceeds that are usually reinvested directly in economic, financial, business or speculative activities, creating conditions to commit two crimes, with a single action.
This connection could be avoid only when it is proved that intention to obstacle identification of money origin resulting from tax crime, doesn’t exist, because money use, obtained by fiscal violations, is directly reported in corporate accounting, and therefore should be excluded self-laundering crime.
This new crime has been designed with the main objective to increase fight against tax evasion, leading companies to evaluate and consider effects of their administrative liabilities, updating with a penal lawyer as soon as it possible, its organizational models to include new crime of self-laundering; companies must then analyse business processes, defining a map of areas potentially affected by this crime risk, increasing the entire system control to avoid the occurrence of the same.
From sanctions point of view, were provided different penalties depending on crime seriousness; therefore are provided penal sanctions with detention from one to eight years and a sanction ranging from 2.500 to 25.000 Euros for natural person, held liable for self laundering crime, and as well, administrative sanctions in charge to the company, if it proves that interest or benefit is obtained by the same, with sanctions up to 1000 units.