Edited by Sergio Silvestri

A twelve-month ban on practicing professional activities and the precautionary seizure of the business complex represented by a school. These precautionary measures are contained in an order issued by the investigating judge of the Palermo Court, at the request of the local Public Prosecutor's Office, against two individuals. The order was executed, as stated in a press release from the Guardia di Finanza (Fiamme Gialle), by the financial police of the Palermo Provincial Command. The press release emphasizes that the crimes charged to the suspects, in their capacity as de facto and de jure directors of the involved companies, include fraudulent bankruptcy, self-laundering, and false corporate communications. The seized business complex has been entrusted to a judicial administrator appointed by the Palermo Court, tasked with ensuring the continuity of school operations and maintaining employment levels, to protect the rights of workers and students.

Investigators allege that the business was fraudulently transferred to a newly formed company, using a business unit transfer agreement, for a sum lower than its true market value, in order to allow the school to continue operating. The previous company, which subsequently went bankrupt, was left in financial distress with debts of over €1,7 million. Furthermore, items indicating the company's true debt situation were allegedly omitted from the company's financial statements to conceal its default status.

This operation by the Guardia di Finanza offers the opportunity to recall the legislative framework of the crime of self-laundering provided for by Article 648-ter.1 of the Criminal Code: the penalty of imprisonment from two to eight years and a fine from 5 thousand to 25 thousand Euros is applied to anyone who, having committed or participated in committing a non-negligent crime, employs, replaces, transfers, in economic, financial, entrepreneurial or speculative activities, the money, goods or other benefits derived from the commission of such crime, in order to concretely hinder the identification of their criminal origin.

Material elements of self-laundering are:

• la commission of a non-negligent crime
• that the aforementioned crime resulted in a income (money, goods or other utilities) economically appreciable
• that the aforementioned proceeds were reinvested in economic, financial, entrepreneurial or speculative activities
• that the reinvestment operation constituted a (concrete) obstacle to the identification of the criminal origin of the proceeds of the underlying crime

On the concept of speculative activity, the Criminal Court of Cassation establishes that «it must be logically assumed that [let it be] intended to pursue, through the use of the broad expressions cited (economic, financial, entrepreneurial or speculative activities), any form of re-introduction of assets of criminal origin into the legal economic circuit»

Speculative activity identifies a broad economic category: any investment decision or action that is based on the prediction of future events and which – in this sense – involves risk can be considered speculative… Gambling is also sometimes characterised as a highly speculative action.. the Board believes that the concept of ""speculative activity" pursuant to art. 648 ter.1 of the Criminal Code games or bets characterised by chance may also be included (meaning those practiced for profit and in which winning or losing is largely random, with the participant's ability not having a determining role in the outcome). Furthermore, while in the crimes of money laundering and reinvestment, the obstacle required by the legislator is essentially comparable to any method capable of generating even just a delay in identification, in art. 648-ter1. of the Criminal Code, the inclusion of the adverb "concretely" in the provision means that the determination of punishable conduct is necessarily limited to those behaviors that – although not artificial in themselves, as in the case of artifices and deceptions for the crime of fraud – make it objectively difficult to identify the criminal origin of the asset. Therefore, for the purposes of configuring self-laundering, it is necessary to ascertain, in each individual case, the hindering effectiveness of the means (of any type) identified during the investigation, capable of significantly reducing the investigators' ability to reconstruct the illicit origin. A quid pluris which characterizes the conduct for its particular dissimulating capacity.

Source: https://www.gdf.gov.it/it