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 provides an opportunity to recall the legislative framework for the crime of self-laundering, as set forth in Article 648-ter.1 of the Criminal Code: a prison sentence of two to eight years and a fine of €5 to €25 applies to anyone who, having committed or aided in the commission of a non-negligent crime, uses, substitutes, or transfers, in economic, financial, entrepreneurial, or speculative activities , money, goods, or other benefits derived from the commission of that crime, in such a way as to effectively 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 considered entirely logical that [it was] 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 based on the prediction of future events and which – in this sense – involves risk can be considered speculative… Gambling, too, is sometimes characterized as a highly speculative action . The Panel believes that the concept of “ speculative activity” referred to in art. 648-ter.1 of the Criminal Code can also include games or bets characterized by chance (meaning those practiced for profit and in which winning or losing is largely random, with the participant's skill not being a determining factor 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-ter.1. The inclusion of the adverb "concretely" in the provision means that the determination of punishable conduct must necessarily be limited to those behaviors that—while not inherently artificial, as in the case of artifices and deceptions for the crime of fraud—objectively make it difficult to identify the criminal origin of the asset. Therefore, to determine whether self-laundering is a crime, it is necessary to ascertain, in each individual case, the effectiveness of the means (of any kind) identified during the investigation, which significantly reduces the investigators' ability to reconstruct the illicit origin. A certain element characterizing the conduct is necessary, due to its specific concealment potential.

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