Judicial cooperation procedures: the principle of legality shall be respected only by the requesting State

The Italian Supreme Court issued decision no. 13571 of May 4, 2020 establishing the possibility to enforce confiscation in Italy following a conviction for self-laundering issued by a foreign court, even if the relevant conduct was not an offense under Italian law at the time it was committed.

The grounds for the appeal

On October 29, 2019, following a request for judicial cooperation, the Court of Appeals of Brescia ruled on (i) the recognition of the decision issued by the Court of the Republic of San Marino against an Italian businessman for the crime of self-laundering; and (ii) the consequent request for confiscation of the equivalent amount.

Specifically, according to the Court of the Republic of San Marino, the convicted party had replaced, hidden and transferred abroad the profits of certain crimes committed in Italy (i.e., tax fraud and diversion of several insolvent companies’ assets), thereby committing self-laundering.

The businessman challenged the decision of the Court of Appeals of Brescia before the Italian Supreme Court, mainly alleging the following:

(i) infringement of the requirement for double criminality and of the underlying principle of legality, since self-laundering did not constitute a criminal offense under Italian law at the time of its commission. Moreover, the businessman alleged that the illegal profits had been used only for personal enjoyment and, therefore, pursuant to Italian criminal law, the act should not have been considered punishable as self-laundering.

(ii) violation of the “ne bis in idem” principle, since the businessman declared that the offenses underlying self-laundering had already been prosecuted by the Italian court, as well as that the confiscation penalty had already been applied in relation to the tax offenses.

The reasoning of the Court

The Italian Supreme Court rejected all the pleas and arguments raised by the businessman, following the reasoning explained below.

Primarily, the Court confirmed that in order for the requirement for double criminality in judicial cooperation procedures to be considered fulfilled, the legality principle may be respected solely by the requesting State, while it is sufficient that the act amounts to an offense at the time of the decision for the State that is the recipient of the request.

The Court outlined the difference between the recognition of a foreign decision (i) with the purpose of producing the same legal effects as if it has been pronounced in Italy; and (ii) responding to the need for judicial assistance and cooperation to enforce the rulings issued by the judicial authority of a foreign state.

In this respect, the claimant improperly referred to a previous decision of the same Court[1] concerning the first scenario, while in the case at hand recognition of the foreign decision for the purpose of judicial cooperation was undisputed.

In addition, the Court rejected the argument concerning the application of the cause of exclusion of criminal liability — on the basis that the profits were merely intended for personal enjoyment — noting that the sums in question had been re-invested to obstruct the identification of their criminal origin.

Finally, the Court rejected the argument concerning the alleged infringement of the “ne bis in idem” principle in the context of confiscation.

In the case at hand the Court deemed the confiscation of the profit deriving from self-laundering legitimate, as this crime was different from the one already ruled upon in Italy (i.e., tax fraud) and with regard to which the Italian judge had already ordered the same measure.

[1] Decision No. 21348 of April 27, 2016, in which the Court ruled that a foreign judgment may be recognized in Italy only if the relevant conduct constituted an offense under Italian law at the time of its commission.

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