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АНТИКОРРУПЦИОННАЯ ПОЛИТИКА И ПРОТИВОДЕЙСТВИЕ КРИМИНАЛИЗАЦИИ ГОСУДАРСТВЕННОЙ ВЛАСТИ. ФИНАНСОВАЯ ГВАРДИЯ И ЕЁ ЗАДАЧИ. КОНФИСКАЦИЯ В РАМКАХ УГОЛОВНОГО ПРАВА
ANTI CORRUPTION POLICY AND COUNTERING CRIMINALI SATION OF PUBLIC ADMINISTRATION. THE GUARDIA DI FINANZA AND ITS ROLE. CRIMINAL LAW CONFISCATION
Данная статья посвящена деятельности Финансовой Гвардии Италии, которая считается одним из мощных и сильных фискальных правоохранительных органов в мире. Автор подробно раскрывает основные функции Финансовой Гвардии: борьба с преступностью, предупреждение и борьба с мошенничеством, противодействие угрозе нелегальных азартных игр, переводу подозрительных денег и др. Особое внимание уделяется проблеме коррупции и борьбы с ней как на национальном уровне, так и в контексте международного сотрудничества.
The article is devoted to the activity of Italy's Financial Guard (Guardia di Finanza) which is consideredto be one of the most powerful fiscal lawenforcement agencies inthe world. The author analyzes the Financial Guard main functions: fighting crime, prevention and fighting fraud, countering the threat of illegal gambling, countering suspicious money transfers and others. The great attention is paid to the problem of corruption on the national level and the context of international cooperation.
Ключевые слова: Финансовая Гвардия Италии, функции, борьба с коррупцией, доходы, полученные незаконным путем, конфискация.
Keywords: Italy's Financial Guard (Guardia di Finanza), functions, combating corruption, proceeds, proceeds of crime, confiscation.
1. INTRODUCTION.
I would like to start my overview talking overall about the role of the Guardiadi Finanza in the Italian economic contest.
The Guardia di Finanza is a military police and is composed by 64.000 units.
Guardia di Finanza is an economic and financial police force that has several tasks:
1. Ensuring fiscal equity
2. Prevention and repression of community fraud - Monitoring of fiscal damage and public spending
3. Opposing the exploitation of workers
4. Collaboration with Authorities
5. Countering the threat of illegal gambling
6. Tackling the high cost of living
7.Tackling counterfeiting and the
Daniele CORRADINI,
Head of the Economic Crimes Unit of Italian Tax Investigation Police (Guardia di Finanza) in Rome, Italy
circulation of dangerous products. Protecting Italian Production
8. Protecting the energy products market
9. Customs checks
10.Fighting crime
11.Countering suspicious money transfers
12.Environmen.tal protection
13.Ccmbating drug trafficking
14.Border patrol and rescue
15.International collaboration
1. ENSURING FISCAL EQUITY
Fighting tax evasion, i.e. behaviour aimed at unduly avoiding payment of tax, is the primary objective of the Guardia di Finanza's mission as an economic and financial police force. It is a phenomenon that damages the budgets of the state, the regions and
local authorities, depriving them of resources meant for essential public services for the asset fit of all members of society.
2. PREVENTION AND REPRESSION OF COMMUNITY FRAUD; MONITORING OF FISCAL DAMAGE AND PUBLIC SPENDING
Activity of the Finance police to safeguard the national and community budget is
a fundamentally important part of the Guardia di Finanza's institutional mission. This is particularly the case in the present time of public expenditure control, to avoid the dissipation of precious resources or their plunder by cheats andcriminal associations to the detriment of policies supporting businesses and families in difficulty due to the economic crisis and the international raessicn.
It is therefore essential to monitor correct and appropriate use of these resources, which the Corps does by means of investigations aimed at:
- ensuring that parties receiving incentives forproductionactivities actually meet the requirements for the allocation of public money
- ensuring efficient and correct management of the Italian health system to guarantee all citizens adequate levels of assistance, assessing the veracity of medical expense;
- examiningthe true financial situations of persons requesting social asset fits.
3. OPPOSING THE EXPLOITATION OF WORKERS
Undeclared employment is a phenomenon that has a two-fold negative effects: firstly, for the workers, who have no certainties regarding the stability of their employment situation, the protection of their rights to health and safety in the workplace, and the possibility of enjoying a more comfortable economic life intheir oldage; secondly, for the country, because exploitation of workers slows the growth of the legal economy and favours the proliferation of dangerous criminal activities (such as
clandestine immigration and "the gang master" system) which affect the general level of public security. Akeenawareness of the negative effects of undeclared work urges the Guardia di Finanza to continually work to counteract it, through an operational strategy aimedat simultaneously strikingall the various illicit activities connected with the employment of irregular workers.
4. COLLABORATION WITH AUTHORITIES
By the express provision of law?, the Corps collaborates with all the independent administrative authorities that work to regulate the functioning of the market.
These are:
- the Authority regulatingcompetition and the market, more commonly known as the Antitrust Authority, which protects the market and consumers from anticompetitive conduct and from improper business practices that are harmful to free competitive enterprise;
- the Italian Communications Authority, responsible for ensuring proper com_ petition between communications operators and guaranteeing fundamental freedoms in the telecommunications, audiovisual and publishing sators;
- the Authority supervising public contracts for work, services and supplies, which monitors compliance with the transparency and awarding procedure rules governing matters of public contracts;
- the Regulatory Authority for Electricity and Gas, which ensures the promotion of competitiveness and efficiency, and monitors the tariff system in the electricity and gas sators.
Part of the Corps members' service in collaboration with these bodies includes acquiring access to and conducting inspections of the premises of economic operators under surveillance, to verify any violations of sector regulations.
The protocol of intent signed on 11 November 2005 between the Guardia di Finanza and the Guarantor for the protection of personal data also requires the Corps'
collaboration in the Guarantor's inspection activity, providing verification for the requests they forward.
5. COUNTERING THE THREAT OF ILLEGAL GAMBLING
In recent years, the public gaming division in Italy has experienced a period of extraordinary activity. The constant growth in the volume of bets and the increasingly diversifiedrangeof products availableare proof of the keeninterest shown in the sector. However, gambling does not just attract members of the public with a normal desire for amusement; the significant economic interests connected with the gambling world also attracts crime, both organised and common. And so clandestine agencies, "doctored" gaming equipment, gamingsites fictitiduslylocatedabroadto avoid monitoring, and bogus lotteries become instruments through which certain people grow rich at the expense of the public
and the Treasury. Hence, the importance of the Guardia di Finanza's actions to combat the various illicit activities connected with organised gambling, through a combined operation carried out on three different fronts, in order to:
- combat tax evasion, considering the significant impact made by illegal gambling on the economy and overall tax revenues;
- protect the market, so that honest operators do not suffer from unfair competition from those who organise and promote illegal and abusive gaming;
- to protect consumers from gambling offers that are unsound and dangerous, because they are not managed and guaranteed by the state.
6. TACKLING THE HIGH COST OF LIVING
Throughout 2009, the Guardia di Finanza has visibly strengthened its commitment to operations in the area of tackling the high cost of living, giventhat the current period of general economic crisis makes it even more necessary to protect consumers from turbulent markets, inflationary pressures,
speculative and anticompetitive behaviour, and unjust commercial practices.
The Corps operates in this sector, on the one hand, through constant monitoring of prices and the development of service activities for checking violation of free com_ petition regulations; on the other, by providing the Guarantor their full operational support for monitoring prices, by conducting surveys and control plans in those market sectors most affected by anomalies, tensions and distorted dynamics in the process of establishing prices.
7. TACKLING COUNTERFEITING AND THE CIRCULATION OF DANGEROUS PRODUCTS . PROTECTING ITALIAN PRODUCTION
Counterfeiting, intellectual piracy, and violations of made in Italy guarantees and
product safety have recorded an exponential growth in recent years.
These are criminal phenomena that have serious consequences for the market and for consumers: tax and contribution evasion, recycling, the exploitation of illegal and irregular employment, encouraging and exploiting clandestine immigration, and risks for consumers' health. The Corp's activity is traditionally geared towards reconstructing all the links in the "counterfeit chain": "at the source" (namely, at the stage of producing counterfeit trademarks and licences and importing products with counterfeit trademarks) and "downstream" (i.e., at the stage of introduction on the sales market or dealing infake goods). These include controlled deliveries, undercover operations and measures for seizing and confiscating illegally acquired assets.
8. PROTECTING THE ENERGY PRODUCTS MARKET
Activity to prevent and curb fraud in matters of excise taxes continues to play a primary role inprotectingthe state budget, both due to the significant revenue quotas it guarantees the Treasury, and for the high profitability of tax evasion practices. Tto guarantee effective counter measures, the Guardia di Finanza conducts targeted activities,
both through fixed surveillance of customs checkpoints and the most important petroleum product production plants, and through dynamic territorial checks along the entire supply chain, from storage depots and processing plants to roadside distributors, as well as of the circulation of vehicles transporting energy products. From the examination of the evidence, the diffusion and perpetration of these evasive practices are be seen to involve:
- the destination of products covered by moderate tax regimes for higher taxed uses, and the performance of unauthorised mixing operations;
- the commission of fraud, to the detriment of the end consumer (public and private organisations, condominiums, etc.), to whomsuppliers, by means of trickery and cheating, deliver products differing in quality and quantity fromthose requested and formally documented, with subsequent "cash in hand" deviation of the discrepancies to the underground market.
9. CUSTOMS CHECKS
The Guardia di Finanza carries out checks to ensure the regularity of commercial traffic by means of surveillance garrisons in all ports, airports and border crossings, integrated with a dynamic surveillance system that extends the control network across the country, for purposes of prevention and repression.
These measures are then further enhanced by investigations, often startling from individual seizures, that aim, on the one hand, to reconstitute theorganisational networkof the criminal organisations conducting the illegal trafficking and, on the other, to seize the huge profits or investments that the traffickers are able to obtain.
Among the types of illegal goods, of which a sudden upsurge was noted in 2009, cigarette smugglingandcounterfeitingwere particularly conspicuous.
Today, Italy is no longerjust affected by smuggling as an outlet market, but also as a transit area, due to its central position in the Mediterranean basin.
Cigarettes andtobacco, normally from Eastern Europe and the Middle East, are usually brought into the country throughan "introspective" route, i.e., through customs points, with materially or ideologically false documentation, by Italian and Eastern European organisations that are often closely connected.
There has also been a significant increase inseizures of counterfeit cigarettes, coming mainly from China and normally entering the national market from the sea, through concealment inside containers with covering loads.
10. COUNTERING SUSPICIOUS MONEY TRANSFERS
Today, financial transactions can be performed, and capital moved, extremely easily, thanks to new technologies and the diffusionof the internet, whichovercome physical constraints and the distances between countries in the management of investments. In this context, the Guardia di Finanza operates to safeguard the correct functioning of the capital market and to protect the legality and propriety of the transfer of money, securities and values on the national economic circuit, in order to identify capital of illicit origin. The aggravation of conditions for access to legal credit and a lew availability of liquidity on the markets has led to an increase in the risk of money laundering and reinvestment of illicit proceedls by criminal elements throughout the country. Eusinesses and families in difficulty are also more exposed to loans at usury rates, to credit fraud and to speculation by illegal agents and intermediaries, who offer the public loans according to consumption, financing and guarantees, without adequate financial guarantees. Because of this, the Corps was invited to provide personnel to join the special observers instituted in the prefectures to monitor the credit system's loans to businesses andfamilies. The monitoringof financial flows allows activities to be kept under control and the detection of illegal activity that is highly dangerous and treacherous to the public, such as transactions for the purpose
of financing terrorism. The presence of inspection in the sector also permits verification of the regular functioning of the banking system, the stock exchange and the worldof financial operators, to protect the interests of investors and, more generally, the transparency of the financial markets. There is valuable collaboration with the Banca d'Italia, the National Commission for Society and the Stock Exchange (CONSOB) , the Authority Regulating Competition and the Market (Antitrust), the Italian Supervisory Authority for Private Insurance Companies (ISVAP) and the Supervisory Authority for Pension Funds (COVIP).
11. ENVIRONMENTAL PROTECTION
Improving the quality of life for the
population is largely determined by respect for the environment and the laws that are put in place to protect it. The "«Naples problem» is a prime example of the extent to which neglect of environmental issues and delays inthe applicationof laws inthis sector can disrupt the life of every citizen. Criminal organisations, furthermore, focus their attention on the lucrative activities connected with the disposal of waste materials, providing contingent solutions that violate every rule regardingenvironmental protection and preservation. The Guardia di Finanza is helping to combat lawlessness in this sector through environmental legislation checks on companies whose manufacturing processes produce waste, emit pollutants, or are part of the waste disposal chain. The air and naval components are very much involved in environmental work; thanks to the advanced technology at their disposal, they are able to detect and report water, air, and soil pollution to the relevant authorities, particularly through the use of aerial remote sensing
12. COMBATING DRUG TRAFFICKING
The entire Corps has always been engaged in combating illegal trafficking through measures which include:
- action carried out within the country
by territorial departments and, in particular, by special anti-drug and anti-smuggling units;
- checks along lard, air and sea borders, according to the traditional duties of customs and border police;
- seasurveillance, throughnaval units and aircraft, to control national and international waters.
Action against narcotics smuggling has led to the seizure of large quantities of drugs and the arrest of several members of organisations that were involved in various ways in their distribution in Italy. nnv^tigations were carried out on Italian and foreign suspects _ mainly North Africans, East Europeans and South Americans _ under the coordination of the Home_Office Central Directorate for Anti-Drug Services, and in close collaboration with police agencies worldwide. The Corps' air operations component has played an important role in promoting counter measures aimed increasingly at the source of the narcotics supply chain.
13. BORDER PATROL AND RESCUE
Despite the termination of systematic border and customs checks, the Corps has been able to dynamically transform its operations by putting in place intervention procedures aimedat blocking the arrival of dangerous or illegal goods as soon as they enterthenational territory. As part of this effort, the Corps contributes tothe control of illegal immigration, at terrestrial and maritime borders as well as within the country. Italy is one of the countries that are most vulnerable to the problem of immigration, as well as being one of those most committed to it, as is demonstrated in the agreements reached with the Libyan government towards the end of 2007 and in February 2009. As part of these agreements, the Guardia di Finanza gave three of its own coastal patrol vessels to their Libyan counterparts for patrolling their maritime territory, and launched a mission to which it assigned its own personnel. The Guardia di Finanza has taken part in programmes initiated by FRONTEX, the
European Agency for the Management of Operational Cooperation at the External Borders. The Corps' air and sea units also play a part in a much wider deployment, carried out in collaboration with Marines from many countries, that is aimed at patrolling the entire Mediterranean Sea and a portion of the Atlantic Ocean off the coasts of Senegal and Mauritania. Finally, as was previously mentioned, the Corps is present on the terrestrial border, with its own Mountain Rescue organisation (SAGF) .
14. INTERNATIONAL COLLABORATI ON
In the global context, the Guardia di Finanza constantly participates in activities conducted by the main international organisations, including the UN (in particular the Office on Drugs and Crime in Vienna - UNODC and the United Nations Interregional Crime and Justice Research Institute in Torino - UNICRI); the institutions of the European Union (the European Commission, FRONTEX, OLAF and EUROPOL) ; the World Customs Organisation (with its central headquarters in Brussels and regional office in Cologne) and l'OSCE (particularly in regard to its presence in the Baltic countries) . These organizations increasingly request the participationof the Corps' representatives in their forums, due to their qualified experience in combating illegal economic and financial activities. This proves indispensable for control of the global market inthe struggleagainst transnational organised crime and the financing of international terrorism..
In this regard, the Guardia di Finanza has been involved in important training activities, organising special training courses for officials of the Serbian "collaterals" and the administrations in Montenegro, which were funded entirely by the OSCE. They have also taken part in various teaching programmes, co-_financed by the European Commission, in collaboration with counterpart police forces, including those belonging to the newest member states of the European Union.
At the same time, bilateral relations with the mainforeign"collateral" countries have been intensified, consolidating the protocols already signed with the Spanish Guardia Civil and the Romanian Ministry of Interior and Administrative Reform.
15. FIGHTING CRIME
One of the most effective methods in the struggle against organised crime is based on countering the systematic aggression of syndicates on the economic, financial and property level. All the Institutions, both national and supernational, are in agreement with the view that this approach is essential in order to decapitate the more structured criminal teams. In fact, the seizure and confiscation of the proceeds of criminal activities and illegally accumulated property, apart from being a strong warning concerning the fact that "crime does not pay", reduce the possibilities of renewedinvestment of resources in other illegal activities and lessen the risk of contamination of the economic and legal fabric. Combating these phenomena requires, nevertheless, widerangingactions that take into account _ more so today than in the past _ the capacity of the organizations to permeate civil society and their tendency to conceal themselves under the appearances of apparently normal businesses, often conducted in areas quite distant from their places of residence, either directly or through third parties, in Italy and abroad. The particular nature of the investigations carried out, and the highly technical character of their implementation, are perfectly in keeping with the duties of the Corps and the professionalism and consolidated experience gained "in the field" by the Guardia di Finanza, as economic and financial police. These investigative activities are mainly conducted through in-depth examinations of administrative accounts, as well as through the comparison and reconstruction of financial flows and the verification of the consistency of actual propertysituations withthat of declared incomes. These aspects have significant connections with the service's operations against tax evasion, in that the
possession of property and capital of disproportional value to the economic activities conducted are often indicators of either possible reinvestment of illicit gains, or concealment of hidden earnings from the taxman.
CORRUPTION AND CONFISCATION AS MEASURES TO AVOID THE PHENOMENON
Guardia di Finanza, is an economic and financial police, our investigative activities are mainly conducted through in-depth examinations of administrative accounts, as well as through the comparison and reconstruction of financial flows and the verification of the consistency of actual property situations with that of declared incomes. These aspects have significant connections with the good behaviour of public employer that isa fundamental element for the good trend of public administration in general.
One of the most serious crimes in Italy and in UE is represented by corruption. This crime is very dangerous for the economic systemin general because of the risk to destroy the market of the capital and of goods.
The phenomenon of Corruption is a very dangerous problem for my country and for the E.U. in general.
The continuous increase in corruption practices noted on the territory has led to the research of new means to fight corruption, also through measures from a social, an economical and political nature, in order to support the Police Force and public prosecutors in their fight against organised crime.
The first aspect to consider for the purpose of Corruption is the Social environment. Corruption is facilitated by the relationship between the public administration andprivate enterprises, andbecomes worst with a higher complexity of legislation and rules which may increase the opportunity to corruption. A lack of ethical code and behavioural codes increases corruption and is the most dangerous factor in impacting on bureaucracy.
More indetail, the causes of corruption can be identified in a limited transparency of rules, poor controls and little direction frompublic managers andcivil servants, as well as the omission of controls and lower adoption of sanctions in case rules are breached. At the end, corruptionis also based on the financial vulnerability of single individuals.
Corruption practices against public and local administrations occur not only against less developed realities, but also against more developed realities.
Corruption practices against Public administration often occur in connection with:
- public tender offers contracting out public projects to private enterprises;
- public financing of large local projects;
- assignment of services to private enterprises for garbage disposal and recycling;
- investments whichrelateto financial sector and other.
Collusion with the local political establishment is often important for organised crime to create apreferredroute to access to financial resources related to public local administration.
Inthe next passages of this discussionI will highlight main areas in the public sector where there is an infiltration of organised crime
This scenario allows us to conclude that corruption is found predominantly at the lower levels within the public administration, where public employees are more susceptible to corruptions through smaller sums of money. This is experiencedinparticular in the local areas and districts in case of public auctions of public works or public authorisation for constructions assigned to private enterprises.
To prevent this crime and to delete the effects of this phenomenon as other in Italy and in the EU there has been the adoption of rules and norms which have allowed to prevent andto delete this problem. One of the measures adopted is represented by law confiscation of assets held which are, either
- not 'in line' with income earned for certain individuals or;
- in case there is enough evidence that the assets have been acquired as a result of illegal aiivities.
In fact, the possession of property and capital of disproportional value to the economic activities conducted are often indicators of either possible reinvestment of illicit gains
THE INTERNATIONAL CONTEST
The international Experience about law confiscations assets beginabout 40 years ago. The importance of the economic approach to the organised crime has been in fact declarated in XVII ONU ASSEMBLY: Political declarationandglobal programm of action dedicate to the problem of international cooperation against illicit production. In this assembly has been told that the enormous profits of the criminal organizationsupply their leader to enterin the Economic system and to corrupt government members.
So we have to adopt an economical approach to fight the criminal organization that by the illicit production can cause infiltration in the economic system and in the established government.
Profits produced by criminal organizations can in fact cause the deviation from the established system of laws and from the legal circuit of money.
The criminal organization have the scope to obtain the control of the economic system and the lower levels within the public administration, where public employees are more susceptible to corruptions through smaller sums of money. So The problem of corruption is one of the several aspects that have to be considered to fight criminal organization and to ensure public resources.
In this way public resources are the centre of Italian and UE penal law system.
The integrity of public resources is purchased through the fiscal system and the minimization of the behaviour of the public employer contrary to the good trend of public administration.
This approach begin in 1970 with the emersion of the public consciousness that
the European Community balance was an asset to protect. This idea was born on the 20 th of April 1971 when the European community has modified its member-states contributions with own resources of the community. This decision of the council was confirmed in 1985 with another decision that established the new system of financing the Community. The protection of the Community balance needed new laws.
In the direction to build a common system of laws to protect the community balance has been declared the possibility to share member-states penal law system and community law system.
Another element that contribute to create the community penal law system was the increasing presence of transnational economic crimes. Actually without a true community penal law system the protection of international interests is developed within three principal aspects: the assimilation, the cooperation and the harmonization.
The first model is based on the assimilationof community interest to the similar national elements.
The second model is based on inter-government relationships;
The third model consists to recourse to the penal law systems of the member nations of the EU. This third model is not so good infact insomecase theinternal legislation is orientated to ensure the interests of the nation and not to ensure the interests of the EU.
So several member of EU decided to improve the assimilation of EU laws according to the necessity to protect the community balance. In this direction members of EU assimilated norms about the sanction the measures of sanction and about illicit behaviour.
An important initiative is represented by the CONVETION ABOUT THE FINANCIAL INTERESTS OF THE EU signed in Brussels onthe 26thof July 1995. This convention establishes that members of the EU are allowed to considerate some penal illicit (the production of false documents the distraction of community founds) such as a
danger for the economic interest of the union andestablishes specific sanctions forthis illict.
The prevision of this convention is enforcedby two additional protocols signed in 1996 in Dublin and in 1997 in Luxembourg. Another important document is the OSCE CONVENTION signed in Paris in 1997 about corruption of public employers that establishes the duty for the states to punish the illicit committed by industries and the duty for the states to apply LAW CONFISCATION of the illicit profits gained in case of corruption and money laundering.
The Italian process of assimilation
In 1998 was born the Italian assimilation process of the rules established by international conventions. The most important norm signed by the Italian government is the Law n. 300 in 2000. This law has been a mile stone for the Italian penal law system in order to prevent the corruption and to avoid the production of profits by criminal organizations. The process that contributed to sign this law was not a simply process. In fact the role of the parliament was very hard, in fact they had to assimilate with one only law 5 distinct convention (Bruxells 1995, Dublin 1996, Bruxells 1996, Bruxells 1997 - convection against public employers corruption, Paris 1997 OCSE Convention).
The law establishes some illicit behaviour against EU interests and establishes the sanctions for these behaviour. This law introduced some behaviour against of EU interests so to modify the previous Italian penal law system.
The most important new is represented by the introduction of law confiscation in case of corruption of public employers.
The most debated element of this law was the law confiscation. In fact doctrine consideredtheillicit of the public employer as an economic crime, so the Italian Parliament didn't hesitate to sign a law that had as principal matter the law confiscation in case of corruption. The principal scope of the law was to individuate in the protection of financial interests of EU.
In fact law confiscation is the only measure that has the scope to fight the economic effects of the crime profits.
The system of law confiscation in Italy is now based on the third article of OCSE CONVENTION that establishes that every nation take the necessary measures to ensure that the instruments and the profits of corruption of a public employer or of a public agent are confiscated. "Each Party shall take such measures as may be necessary to provide that the bribe and the proceeds of the bribery of a foreign public official, or property the value of which corresponds to that of such proceeds, are subject to seizure and confiscation or that monetary sanctions of comparable effect are applicable"
The most important innovation of the novel is that the confiscation can be made also on a money equivalent to the instruments or the profits of corruption.
So the Police and the prosecutor can confiscate not only profits or instruments of corruption but can confiscate money or a assets equivalent to the profit or instrument of the crime.
Some government member told that the OCSE CONVENTION didn't established that could be confiscated money for equivalent but that could be inflicted only an economic sanction to the corrupted public employer. The definitive versionof the lawcontain law confiscation of profit and instruments of corruption.
Now Italian law is very specific in theme of lawconfiscationincase of corruption because contain this institute not only for international employers as OCSE CONVENTION said, but for all the crimes committed by public employers and public agents.
In fact, actually law confiscation is allowed in case of extortion, bribery, fraud against the state, judicial corruption, bribery active private
If an asset can be confiscated during the penal procediment, to prevent eventually distractions of this asset it can be sequestrate and in case of CONDEMNATION it will be confiscated.
The term proceeds
We have to do a digression about the term proceed used by the OCSE CONVENTION.
All the international laws previously indicated the needs for the states to adopt in the internal legislations measures to confiscate the proceeds of crimes.
Proceeds inItalian"Proventi" is not the profit of the crime but the The «proceeds» of bribery are the profits or other asset fits derived by the briber from the transaction or other improper advantage obtained or retained through bribery as the RAPPORTO ESPLICATIVO ALLA CONVENZIONE OCSE said.
So the term proceed is not the profit of the crime but is the advantage that the public employer reach by the commission of the crime. Prooced Is a term with a large sgnificate.
In the United States the RICO Act (Racketeer Influenced and Corrupt Organizations) in 1970 contained as a sanction the confiscation ( "criminal forfeiture" ) of "profits" of illicit actions . This law creates many problems about the term "profit" since 1984 there was a modify of the law and the term profit was substituted with the generic term "proceed", term used also in the Money Laundering Act.
In Germany in 1992 the Parliament modified the original expression Vermngensvorteil (economic advantage) with the generic expression etwas ("everything) that means gross profit and non-commercial profit.
In Great Britain the traditional term "gross profit" has been introduced in the Proceeds of Crime Act of 2002 that modify the confiscationinasanctionat every asset of the guilty.
Law confiscation for equivalent
With the mentioned convention and the assimilation in Italy by the law n. 300 of 2000 has been introduced the concept of law confiscation for equivalent
The ««confiscation by equivalent» has been introduced into our law system with the law in March 7, 1996 No 108, concerning the
crime of usury. Modifying the article 644 of Italian Penal code, that law has in fact provided for the possibility that the seizure, usually for the price and the profit of the offense, may extend also to «sums of money, property or utility of whichthe offender has availability throughnominees, for an amount equal to the value of the interest, or of other benefits or usurious compensations.».
By implementing certain commitments made at international level (most recently, the EU Council Framework Decision of 24 February 2005), our legislature has subsequsntlyset up otherpossibilities for the «confiscation by equivalent» concerning the responsibility of societies (Legislative Decree 11 April 2002, n. 61) , pornography and child prostitution (Law 11 August 2003, No. 228, which has modifiedthe article 600 of Italian Penal Code), and crimes against public administration (article 322-ter of Italian Penal Code introduced with the Law 29 September 2000, No. 300).
Latter case by virtue of Article postponement Criminal Code Article 640-quarter. 322-ter cp, also relates to crimes under Articles. 640 co. 2 No 1 cp (fraud committed against the State or another public body), 640-bis Penal Code (aggravated fraud for achievingpublic delivery) and 640-bco. 2 cp (computer fraud against the state or other public body, except when the fact is committed with abuse of its role as operator of the system).
2. INTRODUCTION OF A «HIGH AUTHORITY» (ALTO COMMISSARIO) FOR THE PREVENTION AND FIGHT AGAINST CORRUPTION AND OTHER FORMS OF ILLEGAL ACTIVITIES AGAINST THE PUBLIC
ADMINISTRATION.
In Italy, in 2003, the Italian Government has introduced a 'High Authority' ('Alto Commissario') for the prevention and the fight against corruption in the Public Administration. This High Authority has then been substituted in 2008 by a different
government body, the 'Anticorruption and Transparency Service' (Servizio Anticorruzione e Trasparenza).
The activities of the former High Authority related to prevention actions with respect toentities withinthePublic Administration, in order to spot andfind out corruption activities and other illegal pressure and actions from organised crime.
3. CONCLUSIONS AND FINAL ASSESSMENT.
Basedonthe investigative experience in Italy and based on the numerous cases handled by the Italian polices forces and prosecutors, it is clear that different approaches need to be taken in order to deal with the different cases of corruption and illegal acts towards the Public Administration in Italy.
If we were to consider how to go forward on this, based on the experience gathered until now, important aspects are the prevention as well as the monitoring activity of any illegal activity with respect to corruption and illicit activities against the Public Administration.
Prevention and monitoring of the corruption phenomenon appear to be the most efficient means and effective answers to stop pressure from organised crime.
Organised crime has improved its efforts and refined its activity and thus made more difficult the countermeasures to contrast corruption and criminal activities against the Public Administration. The success of the investigative forces against the criminal activities is based on flexibility to the changes on the side of organised crime and on rapid response actions, in particular in consideration of preventing any corruptive practice and other illegal activity. The Public Administration is always in demand of adequate tools to contrast criminal activities. At the basis of this, is also the improvement in the conduct
of the Public administration itself and reducing the discretionary decision areas which are sitting with single individuals who administer public entities in the public administration.
In addition, it is important that the right rules andlaws are inplace to fight against the particular corruptive practices adopted by organised crime. The variety and diversity of corruption cases forces Police and prosecutors to consider different investigative techniques and law strategies.
At the end, the best way going forward is to adopt a fair and right combination of instruments of prevention and repression for corruption and other illegal acts against the Public Administration.
The Italian experience, from 'Clean Hands' ('Mani Pulite') until today, has shown that the investigative results cannot be in the long term if these are not accompanied by adequate policies of prevention and repressionof corruptionandother illegal acts. In addition to this, new policies within the Public Administrationare fundamental to promote and build a new generation of managers for the Public Administration itself, with enhanced personal development skills and integrity features.
The fight against corruption needs therefore to be done on all fronts, in particularfromthe politicians, andneeds to be the first priority in the political agenda. The political direction is fundamental for the accomplishment of an anti - corruption agenda with new and strongly integrated legislative and administrative instruments.
These measures of seizure of assets purchased through profits from illegal activiti^ of organised crime, allow also the re introduction of the assets and wealth back again into the framework of the legal economy.
In this direction law confiscation is an important instrument to delete economic effects of economic and financial crimes.
