LegalGB Law Firm LLC Ucraina
Lawyer in Ukraine - Consulting Legal Services Ukraine
Defense in the field of criminal law in Italy.
Criminal law firm
LegalGB Law Firm in Italy practices mainly in the field of criminal law.
Index:
How to contact us
The criminal law firm LegalGB Law Firm of the lawyer. Graziano BENEDETTO, can be contacted by any means. Today, thanks to technology and the new possibilities of remote access via portal to criminal courts, it is possible to practice throughout Italy, with an enormous reduction in costs. The same applies to contacts with patients.
The means for contact are: telephone, WhatsApp also via video call.
It should be noted that calls, video calls and communications between the "even potential" defender and the "even potential" client cannot be intercepted. Article 103 of the criminal procedure code, in paragraph 5, states that: "Interception relating to conversations or communications of defenders, private investigators authorized and appointed in relation to the proceedings, technical consultants and their auxiliaries is not permitted, nor to those among themselves and the people assisted by them".
The lawyer Benedetto can personally receive in Rome, Milan, Pordenone, Treviso and Pescara. Furthermore, the possibility of home consultancy or in places of restriction is foreseen.
Who we are in criminal law
The lawyer Graziano BENEDETTO Italian criminal lawyer, provides legal assistance and consultancy in the field of criminal law, defending the rights of persons investigated or accused in criminal proceedings or of persons offended by the crime before all district courts and courts of appeal in Italy.
The lawyer Graziano BENEDETTO is qualified to practice law, having obtained the professional qualification from the Court of Appeal of the Abruzzi in L'Aquila, after having carried out his professional practice in Pescara and subsequently in Foggia. The lawyer Benedetto is also qualified to practice law in Ukraine.
In his career, the lawyer. Graziano BENEDETTO has defended his clients in Italy in numerous criminal trials which have reached the forefront of judicial news.
Among the many criminal trials in which the lawyer. Benedetto defended his clients in Italy:
Cipollaro operation (articles 416, 640, 629 of the criminal code) of the Public Prosecutor's Office of Lanciano;
Abruzzo milk operation (articles 416, 640, legislative decree 217, 219 and 223);
Genoa DDA operation (art. 74-80 Legislative Decree 309/90);
operation "RB" terrorist attack by the DDA in L'AQUILA;
Easy hiring public prosecutor's office of the Republic of Chieti;
Forconi operation, DDA Rome, Latina Court;
attempted kidnapping Forconi, Rome prosecutor's office;
“Lucky” operation, public prosecutor's office of Treviso;
Forlì Tributes operation;
Bulgaria DDA operation L'Aquila/Rome;
scam operation Carosello prosecutors' offices of Rome and Turin (online sales VAT scam);
Rubino DDA L'Aquila operation.
Acquittal due to state of necessity for fraudulent bankruptcy before the Court of Appeal of L'Aquila.
Defense investigations (also abroad).
He has worked in criminal law in Spain, dealing with cases of multiple aggravated robbery perpetrated by Italians. The lawyer Benedetto practices in the field of criminal law for crimes of international fraud, including commercial fraud, and international child abduction in Ukraine.
He is mentioned in over 1300 press articles at the professional level of a lawyer.
The lawyer Benedetto is a Court Assistant at the International Criminal Court.
What do we do as criminal lawyers
In the criminal law field, the firm deals with providing legal aid, both in court and extra-trial, to the natural or legal persons involved, both as suspects or accused persons and as persons offended by the crime, or as civilly liable in the context of criminal proceedings initiated - even in within the scope of corporate criminal law - following the commission of criminally relevant facts.
The firm deals with corporate criminal law both in the procedural phase and preventively, in relation to particular economic operations to be implemented.
The firm employs investigators with degrees in investigative sciences and experts specialized in consultancy and technical assistance in favor of its clients who find themselves involved, albeit in different capacities (suspects/defendants and/or victims of crime) in criminal proceedings. promoted regarding:
Crimes against the family
Crimes against property
Accidents and protection of safety in the workplace
Crimes against the administration of justice
Corporate and bankruptcy crimes
Administrative offenses of entities dependent on crime Legislative Decree 231/2001
Sexual crimes
Association crimes
Defense investigations
The firm practices with the benefit of free legal aid at the expense of the state.
The benefit of legal aid in criminal law.
The lawyer Graziano BENEDETTO is regularly registered in the lists of lawyers who can practice legal aid also in criminal proceedings.
The institution of legal aid guarantees the constitutional right of defense and allows non-wealthy citizens, in order to be represented in court both to act and to defend themselves, to be able to appoint a lawyer and be assisted at state expense .
The institution of legal aid is also valid in criminal proceedings.
In criminal proceedings: Italian citizens, EU citizens, foreigners and stateless persons residing in the State who hold the role of suspect, accused, convicted, civilly liable or civilly liable for a fine, offended by the crime, injured who intends to become a party civil. The victim of a crime can therefore also request admission to the benefit. It is a legal institution governed by Presidential Decree 115/2002 which allows those without a minimum income (currently equal to 11,493.82 euros, in the case of free criminal legal aid of 1,032.91 euros for each dependent family member) to be defended free of charge , and therefore to be assisted and represented in court by a lawyer without having to pay defense costs and other procedural costs since these are paid by the state or exempted with the debt reservation.
Legal aid is permitted only for procedural defense and can never be authorized for extrajudicial assistance (for example, it cannot be granted for legal advice and activities before trial).
Crimes against the family in criminal proceedings
Maltreatment against family members and cohabitants is a crime, according to the law, when anyone mistreats a person in the family or cohabitant, or a person subjected to his authority or entrusted to him for reasons of upbringing, instruction, care, supervision or custody.
The main crimes are:
Violation of family assistance obligations pursuant to art. 570 criminal code
The art. 570 criminal code sanctions the violation of family assistance obligations or causes the lack of the means of subsistence of minor descendants, or those unable to work, of ascendants or of the spouse, who is not legally separated through his own fault".
Abuse of means of correction or discipline pursuant to art. 571 c.p.
The subsequent article 571 of the penal code, entitled "abuse of means of correction or discipline" instead punishes "Whoever abuses means of correction or discipline to the detriment of a person subjected to his authority, or entrusted to him for reasons of education, instruction, care , supervision or custody, or for the exercise of a profession or an art", providing for proportionately more serious penalties depending on whether the risk of an illness in the body or mind arises from the act (imprisonment of up to six months), a personal injury (punishment under articles 582 and 583 of the criminal code reduced to one third) or death (imprisonment from three to eight years).
Maltreatment against family members and cohabitants pursuant to art. 572 c.p.
Moving on to the analysis of article 572 of the penal code, "anyone, outside of the cases indicated in the previous article" (art. 571 of the penal code "abuse of the means of correction or discipline") is punished with a prison sentence of three to seven years ), mistreats a person in the family or cohabitant, or a person subjected to his authority or entrusted to him for reasons of upbringing, instruction, care, supervision or custody, or for the exercise of a profession or an art".
Crimes against property
Property crimes represent a traditional component of criminal law, as they punish behaviors that have always been considered worthy of sanction, such as, for example: Contents
A) CRIMES AGAINST PROPERTY THROUGH VIOLENCE TO THINGS OR PERSONS
THEFT (ART. 624 C.P.)
THEFT IN THE HOUSE AND THEFT WITH TEAR (ART. 624 BIS Criminal Code)
ROBBERY (ART. 628 C.P.)
EXTORTION (ART. 629 C.P.)
B) CRIMES AGAINST PROPERTY THROUGH FRAUD
SCAM (ART. 640 C.P.)
FRAUDULENT INSOLVENCY (ART. 641 C.P.)
WEAR (ART. 644 C.P.)
FRAUD IN EMIGRATION (ART. 645 C.P.)
MISAPPROPRIATION (ART.646 C.P.)
RECEIVING RECEIVING (ART. 648 C.P.)
MONEY LAUNDERING (ART. 648 BIS Criminal Code)
USE OF MONEY, GOODS OR UTILITIES OF ILLEGAL ORIGIN (ART. 648 TER Criminal Code)
SELF-LAUNDERING (ART. 648 TER. 1 Criminal Code)
Crimes against IT assets
New frontiers of criminal law in this area are crimes against IT assets, which are also capable of creating dramatic disruptions to economic and civil life. Think of the crimes of "damage to information, data and computer programs" (art. 635 bis), of "computer fraud" (art. 640 ter), of "damage of information, data and computer programs used by the State or by another public body or in any case of public utility" (art. 635 ter), of "damage to IT or telematic systems" (art. 635 quater), "damage of IT or telematic systems of public utility" (art. 635 quinquies), " computer fraud of the person who provides electronic signature certification services" (art. 640 quinquies).
Accidents and protection of safety in the workplace: crimes relating to safety at work
MANSLAID MURDER COMMITTED IN VIOLATION OF THE RULES REGARDING HEALTH AND SAFETY AT WORK (ART. 589, PARAGRAPH 2, OF THE PENAL CODE)
NEGLIGENT INJURIES COMMITTED IN VIOLATION OF THE RULES REGARDING SAFETY AT WORK (ART. 590, PARAGRAPH 3, OF THE PENAL CODE)
MALCIOUS REMOVAL OR OMISSION OF PRECAUTIONS AGAINST ACCIDENTS AT WORK (ART. 437 OF THE PENAL CODE)
NEGLIGENT OMISSION TO PROVIDE PRECAUTIONS OR DEFENSES AGAINST DISASTERS OR INJURIES AT WORK (ART. 451 OF THE PENAL CODE).
MANSLAID MURDER COMMITTED IN VIOLATION OF THE RULES REGARDING HEALTH AND SAFETY AT WORK (ART. 589, PARAGRAPH 2, OF THE PENAL CODE)
The crime provides for an aggravated sanctioning treatment compared to the general case of manslaughter referred to in the first paragraph, if the manslaughter is committed in violation of the rules on the prevention of accidents at work, given that the employer is the holder of a position of guarantee towards the worker, being burdened by the obligation to adopt all suitable tools to guarantee the safety of its employees. This aggravating circumstance exists not only when the violation of specific rules for the prevention of accidents at work is contested but also when the complaint concerns the failure to adopt measures or precautions for the most effective protection of the physical integrity of workers, in violation of the art. 2087 c.c.
The crime can be prosecuted ex officio and the jurisdiction lies with the monocratic Court. It also falls within the category of crimes predicated on the administrative liability of entities pursuant to art. 25 septies of Legislative Decree 231 of 2001, providing for a financial penalty of no less than two hundred and fifty euros and no more than five hundred euros. The disqualifying sanctions referred to in Article 9, paragraph 2 are also provided for (the interdiction from carrying out the activity, the suspension or revocation of authorisations, licenses or concessions functional to the commission of the offence, the prohibition on contracting with the public administration, except to obtain the performance of a public service, exclusion from concessions, financing, contributions or subsidies and the possible revocation of those already granted, the prohibition on advertising goods or services) for a duration of no less than three months and not exceeding one year.
NEGLIGENT INJURIES COMMITTED IN VIOLATION OF THE RULES REGARDING SAFETY AT WORK (ART. 590, PARAGRAPH 3, OF THE PENAL CODE)
The crime provides for an increase in punishment compared to the general case of negligent injury when the serious or very serious injuries are committed in violation of the accident prevention regulations. In detail, if the injury is serious the penalty is imprisonment from three months to one year or a fine from 500 to 2,000 euros, if the injury is very serious the penalty is imprisonment from one to three years. Here too, the aggravating circumstance exists both in the case in which the violation of specific rules for the prevention of accidents at work is contested and when the complaint concerns the failure to adopt measures or precautions for the most effective protection of physical integrity. of workers, in violation of the art. 2087 c.c.
In both cases, of manslaughter and negligent injury committed in violation of accident prevention regulations, the employer's liability is excluded only in the case of abnormal behavior by the worker. In particular, it is excluded when the worker has engaged in imprudent conduct which goes beyond his duties and therefore beyond the foreseeability of the employer, or in the case of conduct which, although falling within the duties entrusted to him, has resulted in behavior ontologically distant from the predictable imprudence of the worker in carrying out the work.
The crime in question can be prosecuted ex officio and jurisdiction is reserved to the single judge. Furthermore, it constitutes a predicate crime for the administrative liability of entities pursuant to art. 25 septies of Legislative Decree 231/2001, providing for a financial penalty of no more than two hundred and fifty euros. The art. 25 septies also provides for the disqualifying sanctions referred to in article 9, paragraph 2 (the ban from carrying out the activity, the suspension or revocation of authorisations, licenses or concessions functional to the commission of the offence, the ban on contracting with public administration, except to obtain the performance of a public service, exclusion from benefits, financing, contributions or subsidies and the possible revocation of those already granted, the prohibition on advertising goods or services), for a duration not exceeding at six months.
REMOVAL OR INTENTIONAL OMISSION OF PRECAUTIONS AGAINST ACCIDENTS AT WORK (ART. 437 OF THE PENAL CODE)
The case in question punishes anyone who fails to place systems, devices or signs intended to prevent disasters or accidents at work, or removes or damages them.
The criminal conduct can alternatively consist of an omission (fails to place) or an action (removes or damages).
By mentioning "signs intended to prevent disasters or accidents at work", the standard refers to all the devices that, in concrete terms, may be necessary to avoid accidents at work.
With particular regard to removal, it is highlighted that it is not only the material removal of safety devices from the device that is relevant, but also any activity that frustrates their functioning in relation to the accident prevention purpose for which they are designed.
The expected criminal sanction is imprisonment from 6 months to 10 years.
However, if the act results in a disaster or injury, the penalty is imprisonment from 3 to 10 years.
Proceeds are made ex officio and the jurisdiction lies with the monocratic Court.
It should then be specified that in the event of conviction, the additional penalty of inability to contract with the Public Administration is applied. referred to in the articles. 19, n.5 and 32 quater, if the crime was committed during the exercise of an entrepreneurial activity.
NEGLIGENT OMISSION TO PROVIDE PRECAUTIONS OR DEFENSES AGAINST DISASTERS OR INJURIES AT WORK (ART. 451 OF THE PENAL CODE).
The law in question punishes the negligent conduct of the employer who fails to place, or removes or renders unusable devices or other means intended for extinguishing a fire, or for rescue or assistance against disasters or accidents at work. The aim, therefore, is to ensure the constant presence and efficiency of the preventive precautions and defenses that have been put in place.
Administrative responsibility of entities pursuant to Legislative Decree 231 of 2001
With Legislative Decree no. 231/2001, containing the "Discipline of the administrative liability of legal persons, companies and associations even without legal personality", the administrative liability of entities was introduced into our system, which today constitute autonomous and further than the individual perpetrator of the crime. The dogma societas delinquere et punitiri non potest has thus been overcome, according to which only a natural person can be held accountable for a criminal offense and not a legal person.
In accordance with the art. 1, paragraph 2, of the aforementioned decree, entities with legal personality (such as joint stock companies and cooperatives, associations, foundations and any other institution, not aimed at carrying out economic activity, which acquires legal personality based on Presidential Decree no. 361 of 10 February 2001) and companies and associations even without legal personality (this includes, for example, personal-based companies and unrecognized associations).
However, according to art. 1, paragraph 3, of the Decree, the state and territorial public bodies, other non-economic public bodies and bodies that carry out functions of constitutional importance.
It should be noted that the legal person will not be held accountable for any crime. The entity will be liable only if one of the crimes strictly listed in articles 24 and following of the Decree occurs, namely:
Undue receipt of funds, fraud to the detriment of the State or a public body or to obtain public funds and computer fraud to the detriment of the State or a public body (Art. 24, Legislative Decree no. 231/2001);
IT crimes and illicit data processing (Art. 24-bis, Legislative Decree no. 231/2001);
Organized crime crimes (Art. 24-ter, Legislative Decree no. 231/2001);
Extortion, undue inducement to give or promise other benefits and corruption (Art. 25, Legislative Decree no. 231/2001);
Counterfeiting of coins, public credit cards, revenue stamps and identification instruments or signs (Art. 25-bis, Legislative Decree no. 231/2001);
Crimes against industry and commerce (Art. 25-bis.1, Legislative Decree no. 231/2001);
Corporate crimes referred to in articles. 2621, 2621 bis, 2622, 2623 paragraph 1 and 2, 2624 paragraph 1 and 2, 2625 paragraph 2, 2626, 2627, 2632, 2628, 2629, 2629-bis, 2633, 2635 third paragraph, 2635 bis paragraph 1, 2 636, 2637, 2638 paragraphs 1 and 2 (Art. 25-ter, Legislative Decree no. 231/2001);
Crimes with the aim of terrorism or subversion of the democratic order provided for by the penal code and special laws (Art. 25-quater, Legislative Decree no. 231/2001);
Practices of mutilation of female genital organs (Art. 25-quater.1, Legislative Decree no. 231/2001);
Crimes against the individual personality (Art. 25-quinquies, Legislative Decree no. 231/2001);
Market abuse crimes (Art. 25-sexies, Legislative Decree no. 231/2001);
Crimes of manslaughter and serious or very serious negligent injury, committed in violation of accident prevention regulations and the protection of hygiene and health at work (Art. 25-septies, Legislative Decree no. 231/2001) [article added by L n. 123/2007]
Receiving, laundering and using money, goods or benefits of illicit origin, as well as self-laundering (Art. 25-octies, Legislative Decree no. 231/2001);
Crimes relating to violation of copyright (Art. 25-novies, Legislative Decree no. 231/2001);
Inducement not to make statements or to make false statements to the judicial authority (Art. 25-decies, Legislative Decree no. 231/2001) [article added by Law no. 116/2009]
Environmental crimes (Art. 25-undecies, Legislative Decree no. 231/2001);
Employment of third-country nationals whose residence is irregular (Art. 25-duodecies, Legislative Decree no. 231/2001);
Racism and xenophobia (Art. 25-terdecies, Legislative Decree no. 231/2001);
Fraud in sports competitions, abusive gaming or betting and gambling using prohibited devices (art. 25-quaterdecies, Legislative Decree No. 231/2001);
Tax crimes (art. 25-quinquiesdecies, Legislative Decree No. 231/2001).
In order to be able to ascribe responsibility to the entity, in accordance with the provisions of art. 5 of Legislative Decree 231/2001, the underlying crime or crimes must have been committed in its interest or advantage by top management, i.e. those who hold, even de facto, representation, administration or management functions or by individuals subject to their supervision , regardless of whether they are employees of the organization or external to it. The top management subjects are for example the directors, members of the management board, members of the executive committee, managers. Mayors, on the other hand, do not have the management functions typical of top management, but only control powers, and cannot be called such. Those subordinate to top management include subordinate workers and collaborators who do not have a continuous employment relationship. As regards external consultants who work continuously for the company (agents, franchisees, suppliers), it is necessary to ascertain the effective performance of company tasks under the direction or control of top management.
To avoid liability, the entity is required to adopt an organisation, management and control model suitable for preventing crimes of the type that occurred. For the purposes of exemption from liability, however, it is not sufficient that the model has been adopted, but it is necessary that it has been effectively implemented.
The entity's liability is presumed if the offense is committed by a natural person who holds top or responsible positions; this involves a reversal of the burden of proof on the entity which, in order to exclude its liability, must prove that:
the organization has equipped itself with an organisation, management and control model which has been effectively implemented;
the task of supervising the functioning and observance of the models and ensuring their updating has been entrusted to a body of the organization with autonomous powers of initiative and control;
the crime was committed through fraudulent circumvention of the model;
supervision by the supervisory body was not omitted or insufficient.
If, however, the crime was committed by subordinates, the organization is liable only if the commission of the crime was made possible by failure to comply with management and supervisory obligations.
On the contrary, the organization is not liable if they acted in their own interest or that of third parties.
The notion of interest must be evaluated ex ante, as a final direction of the offence. Otherwise, the advantage refers to an ex post assessment of the benefits obtained by the entity as a consequence of the crime. The first constitutes, therefore, a merely potential fact that exists independently of its subsequent realization, while the advantage constitutes a real, objectively verifiable fact. With particular regard to crimes committed in violation of the accident prevention legislation referred to in art. 25 septies, the notion of interest and advantage must instead be interpreted in light of the cost savings achieved by the failure to prepare the prevention and protection measures required by law.
The administrative responsibility of the entities involves the application of pecuniary and disqualifying sanctions (the interdiction from carrying out the activity, the suspension or revocation of authorisations, licenses or concessions functional to the commission of the offence, the prohibition on contracting with the public administration, except to obtain the provision of a public service, exclusion from benefits, financing, contributions or subsidies and the possible revocation of those already granted, the prohibition on advertising goods or services) of the confiscation and publication of the sentence of condemnation.
For administrative offenses resulting from a crime, the pecuniary sanction is always applicable. In particular, it is applied in quotas of no less than one hundred nor more than one thousand, the amount of which ranges from a minimum of 258 euros to a maximum of 1,549 euros.
To avoid liability for tort, the organization is therefore advised to adopt and effectively implement an organisation, management and control model.
Crimes against the administration of justice
Crimes against judicial activity, listed according to the articles of the penal code.
Art. 361 - Failure to report a crime by a public official
Art. 362 - Failure to report by a person in charge of a public service
Art. 363 - Aggravated failure to report
Art. 364 - Failure to report a crime by the citizen
Art. 365 - Omission of report
Art. 366 — Refusal of legally due offices
Art. 367 - Simulation of crime
Art. 368 — Slander
Art. 369 — Self-slander
Art. 370 - Simulation or slander for an act constituting a contravention
Art. 371 - False oath by the party
Art. 371 bis — False information to the public prosecutor or prosecutor of the International Criminal Court
Art. 371 ter - False statements to the defender
Art. 372 - False testimony
Art. 373 - False expertise or interpretation
Art. 374 - Procedural fraud
Art. 374 bis - False declarations or attestations in documents intended for judicial authorities or the International Criminal Court
Art. 375 - Fraud in criminal proceedings and misdirection
Art. 376 — Retraction
Art. 377 - Obstruction of justice
Art. 377 bis - Inducement not to make statements or to make false statements to the judicial authority
Art. 378 - Personal aiding and abetting
Art. 379 — Royal aid
Art. 379 bis - Revelation of secrets relating to criminal proceedings
Art. 380 - Unfaithful advocacy or consultancy
Art. 381 - Other infidelities of the sponsor or technical consultant
Art. 382 - Boasting credit of the sponsor
Art. 383 - Disqualification from holding public offices
Art. 383 bis - Aggravating circumstances for the case of conviction
Art. 384 - Cases of non-punishment
Art. 384 bis - Punishability of acts committed in audiovisual connection during a letter rogatory from abroad
Art. 384 ter - Special circumstances
Chapter II - Crimes against the authority of judicial decisions
Art. 385 - Evasion
Art. 386 - Procured tax evasion
Art. 387 - Fault of the custodian
Art. 387 bis - Violation of the measures of removal from the family home and the ban on approaching places frequented by the offended person
Art. 388 - Intentional failure to comply with a judge's order
Art. 388 bis - Culpable violation of duties inherent to the custody of things subject to seizure or judicial or conservative seizure
Art. 388 ter - Intentional failure to implement financial sanctions
Art. 389 - Failure to comply with accessory penalties
Art. 390 - Procured failure to comply with the sentence
Art. 391 - Procured failure to comply with prison security measures
Art. 391 bis - Facilitation of communications by prisoners subject to the restrictions referred to in article 41-bis of law 26 July 1975, n. 354. Communications in circumvention of the provisions
Art. 391 ter - Undue access to devices suitable for communication by detained subjects
Chapter III - Of the arbitrary protection of private reasons
Art. 392 - Arbitrary exercise of one's rights with violence against things
Art. 393 - Arbitrary exercise of one's rights with violence against people
Corporate and bankruptcy crimes
They constitute the set of criminal provisions aimed at repressing the conduct carried out by those who carry out management or control functions of companies, whether of people or of capital, during ordinary company activity (for corporate crimes) or during the state of business crisis (for bankruptcy crimes).
Corporate crimes are regulated within Title consortium entities - cooperatives or business groups
The criminal or contraventional figures in corporate matters are extremely diversified, given the multiplicity of legal interests involved and the multi-offensive suitability of the individual conduct punished by the legislator.
Indeed, the criminal protection of such indictments involves different legal assets, such as, by way of example, the transparency and correctness of corporate information (for the protection of which the crimes of false corporate communications are intended), the effectiveness of the share capital (undue restitution of contributions; illegal distribution of profits and reserves; illegal transactions on shares or company quotas; fictitious capital formation), the integrity of the company's assets (patrimonial infidelity; failure to communicate conflict of interest), the regular functioning of the companies (illicit influence on the assembly) and the market (corporate market manipulation), as well as the supervisory functions on typical business activities (obstacle to the exercise of supervisory functions).
Finally, the heterogeneity of the cases in question also emerges from a different subjective point of view: these are crimes that can be committed, depending on the case, by anyone (corporate market manipulation), by directors alone (undue return of contributions), or, by general managers, auditors or managers of companies responsible for drawing up accounting documents (false corporate communications).
Bankruptcy crimes are all regulated within Title VI of Royal Decree 267/1942 (Bankruptcy Law). These are criminal provisions mainly aimed at protecting the liquidation function carried out by the bankruptcy in favor of the creditors of the individual entrepreneur or of companies in a state of proven bankruptcy.
A typical example of a bankruptcy crime is bankruptcy - fraudulent (malicious) or simple (negligent) -.
By way of simplification, the first criminal offense (art. 216 Bankruptcy Law) is integrated by the conduct of the entrepreneur declared bankrupt who has distracted, hidden, concealed, destroyed or dissipated, in whole or in part, his assets (bankruptcy fraudulent bankruptcy), or has stolen, destroyed or falsified, in whole or in part, the accounting books or has kept them in such a way as to make it impossible to reconstruct the assets or the movement of his business (documentary fraudulent bankruptcy), or , has made payments or simulated pre-emptive rights with the aim of favoring some creditors to the detriment of others (preferential bankruptcy).
Otherwise, the criminal hypothesis of simple bankruptcy (art. 217 Bankruptcy Law) punishes the dissipation of the company's assets by the entrepreneur as a result of personal expenses exorbitant compared to his own economic condition or for operations of pure luck or manifestly imprudent operations ( simple patrimonial bankruptcy), that is, the omitted or irregular or incomplete keeping of the books and other accounting records required by law for the exercise of the relevant entrepreneurial activity (simple documentary bankruptcy).
Sexual crimes
In criminal law, sexual crime is a legal figure which includes sexual violence, obscene acts, exploitation of prostitution, child prostitution, pedophilia and child pornography.
Sexual violence
Article 609 bis of the penal code, entitled "sexual violence" states:
Anyone who, with violence or threats or through abuse of authority, forces someone to perform or undergo sexual acts is punished with imprisonment from five to ten years.
Anyone who induces someone to perform or undergo sexual acts is subject to the same penalty:
1) abusing the conditions of physical or psychological inferiority of the offended person at the time of the crime;
2) misleading the offended person by having the culprit replaced another person.
In less serious cases the sentence is reduced by no more than two thirds.
The legislator, regulating the crime of sexual violence, has articulated two main cases:
sexual violence by coercion and sexual violence by induction, for which it has established a sentence ranging from five to ten years of imprisonment, as well as other cases for which it has established even greater statutory penalties.
With the novel introduced by Law 15 February 1996, n. 66, which abrogated the aforementioned Chapter I, the matter was more correctly classified in the category of crimes against the person, precisely those against personal freedom, highlighting the offensive nature of the conduct punished with respect to the legal good of sexual freedom and no more than those of morality and good customs, and is now governed by articles. 609-bis and following of the penal code.
The Legislator has placed on the same level conduct that is harmful to the protected legal good, eliminating the distinction based on carnal conjunction, and sanctioning it much more severely, with a prison sentence of five to ten years, despite paragraph 3 of the art. 609-bis has provided for the hypothesis of "lesser serious cases", for which the same sentence is reduced by no more than two thirds.
The art. 609-septies of the penal code provides that rape and other sexual violence are prosecuted after the victim has filed a complaint.
The victim has six months from the date of the crime to file this complaint.
Beyond the six-month deadline, the crime is not prosecutable.
If the victim files a complaint within the established timeframe (six months from the crime).
The crime can still be statute barred, regulated by art. 157 of the penal code (15 years).
Article 609-bis of the penal code provides for a prison sentence of five to ten years for anyone who, through violence or threats or through abuse of authority, forces someone to perform or undergo sexual acts.
Whoever induces someone to perform or undergo sexual acts:
abusing the conditions of physical or psychological inferiority of the offended person at the time of the crime;
misleading the offended person by having the culprit replaced by another person.
The last paragraph of the provision establishes a reduction of the sentence not exceeding two thirds for less serious cases.
Article 609-ter of the penal code, entitled "aggravating circumstances", establishes a prison sentence of 6 to 12 years if the violence is committed:
against a person who has not reached the age of fourteen;
against a person who has not reached the age of sixteen of whom the culprit is the ascendant, the parent including adoptive parent, the guardian;
with the use of weapons or alcoholic, narcotic or narcotic substances or other instruments or substances seriously harmful to the health of the offended person;
by a person who misrepresents himself or who simulates the role of a public official or person in charge of public services; 5. on a person subjected to limitations of personal freedom;
5.-bis inside or in the immediate vicinity of an educational or training institution attended by the offended person.
Article 609-quater of the penal code is labeled "sexual acts with a minor".
Anyone who carries out sexual acts outside of the previous hypotheses (therefore without coercion or induction) is punished to the detriment of:
who has not reached the age of fourteen
who has not reached the age of sixteen, when the culprit is linked to the minor by a qualified relationship (parent, guardian, cohabitant, or other person to whom the minor is entrusted for reasons of care, supervision, custody, education).
In paragraph 3, the article also punishes those who carry out sexual acts with minors under the age of 18 and over the age of 16, provided that the two subjects are linked by a qualified relationship and that the culprit abuses the powers connected to his position.
It is important to underline that paragraph 4 declares that anyone who carries out sexual acts with a minor who is at least 13 years old is not punishable if the age difference between the subjects is not more than three years.
Another type of sexual violence is group sexual violence, regulated by article 609-octies.
The co-authors are punished with imprisonment from 6 to 12 years.
If sexual violence is committed on minors under the age of ten, the penalty is imprisonment from 7 to 14 years.
The articles 609-bis and following of the penal code do not exclusively punish rape understood as non-consensual sexual intercourse, but any coercion to perform or undergo sexual acts.
The jurisprudence of the Supreme Court of Cassation has interpreted this concept in an increasingly extensive way.
Article 609 bis of the penal code identifies sexual violence by coercion in paragraph 1, providing for coercion, threats and abuse of authority as methods of execution.
In paragraph 2 sexual violence by induction, determining the methods of execution in the abuse of conditions of physical or psychological inferiority of the offended person and deception with replacement of person.
The protected legal asset
The legal good protected by the rule for coercion is the sexual freedom of the individual, that is to say the right of everyone to freely express their personal inclinations, and to prevent the person's body from being used without consent by others for the purposes of erotic satisfaction.
In induction the protected legal good, according to one part of the doctrine, must be identified in sexual freedom, according to others in sexual intangibility.
The legal good is not recognized in sexual freedom if the crime is committed against a person under the age of fourteen as in the case of paragraph 1 of article 609 quater (sexual acts with a minor).
The minor cannot make free choices of action in the sexual sphere, for this reason in such cases the physical-psychic integrity of the minor in relation to the sexual sphere is protected, with a view to the correct development of his sexuality.
The active subject
The active subject of the crime can be anyone, without distinctions of gender, sexual orientation or other personal characteristics.
The crime
The crime consists of the performance of sexual acts.
The notion of sexual acts is debated in doctrine and jurisprudence.
According to one current, sexual acts mean the entire range of acts of lust.
Another current gives a more restrictive notion, limiting it to sexual harassment.
Consumption
The crime is committed in the place and at the time in which the sexual act takes place.
The performance of sexual acts interspersed with an appreciable period of time does not constitute a single crime but multiple crimes unified by the constraint of continuation.
Other cases
There is a prison sentence of 6 to 12 years if the violence is committed:
against a person who has not reached the age of fourteen;
against a person who has not reached the age of sixteen of whom the culprit is the ascendant, the parent including adoptive parent, the guardian;
with the use of weapons or alcoholic, narcotic or narcotic substances or other instruments or substances seriously harmful to the health of the offended person;
by a person who misrepresents himself or who simulates the role of a public official or person in charge of public services;
on a person who is in any case subjected to limitations of personal freedom;
5.-bis inside or in the immediate vicinity of an educational or training institution attended by the offended person.
The case described also includes inducing someone to perform or undergo sexual acts by abusing the conditions of physical or psychological inferiority of the latter or by deceiving him, therefore in the event that the victim is not able to resist. Another type of sexual violence is group violence: the co-perpetrators are punished with imprisonment from 6 to 12 years. If sexual violence causes the offended woman to become pregnant, the penalty is imprisonment from 7 to 14 years.
Association crimes
According to the prevailing doctrine and jurisprudence, the protected good is constituted by public order, which would be threatened by the mere existence of the criminal association: the associates, in fact, are "...for this reason alone..." punished, i.e. for the mere fact of belonging to the association, regardless of whether or not they have committed the crimes contemplated by the delinquency program. This is because the simple fact of being aware of the existence of a criminal association inevitably generates "social alarm" or puts public tranquility and peace at risk. As can be seen, this constitutes a striking exception to the general principle established by the art. 115 c.p. according to which "Unless the law provides otherwise..." anyone who agrees with the aim of committing a crime is not punishable, when the agreement is not followed by the commission of the crime itself".
Active subject
The active subject of the crime can be anyone. However, the crime must be committed by at least three people (multi-subject crime or crime with necessary complicity) in agreement with each other. According to the prevailing doctrine and jurisprudence, subjects incapable of understanding or will must not be included in the minimum number, i.e. the mentally ill and those under the age of eighteen. However, an authoritative doctrine has acutely observed that the exclusion would be in contrast with the general principle enshrined in the last paragraph of the art. 112 c.p. according to which even incompetent subjects must be included among the "competitors" in the crime; furthermore, the exclusion would be manifestly unreasonable because the same doctrine and jurisprudence when it comes to determining the number of people (equal to 10 or more) which would give rise to the application of the special aggravating circumstance provided for in the fifth paragraph of the art. 416 c.p. incapable subjects are also counted and the reason for this arbitrariness is not understood. The problem concerns the nature of imputability and the relationship with the crime and with the subjective element.
Structure of the incriminating rule
The incriminating provision reiterates the fundamental structure of the associative act ("When three or more people join together for the purpose of committing multiple crimes..."), providing for the application of a prison sentence of one to five years for simple members of the association and with that of imprisonment from three to seven years for those who promote, constitute or organize the association or for its leaders.
For information purposes only, the promoter is the person who takes the initiative to set up the association, revealing to the outside world the intention of wanting to give life to it; the founder is the person who creates the association through the recruitment of staff and the procurement of resources; an organizer is someone who provides an operational structure to the criminal association, acting with autonomous decision-making power. The art. 416 co. 3 criminal code equates the leaders with the promoters, i.e. the subjects who direct the association or hold its power.
Consumption
The crime is consummated when the association is born because it is at this same moment that the danger to public order arises: since it is a crime of danger, the commission of the planned crimes is irrelevant to its consummation. Criminal association is, as already mentioned, a typical permanent crime for which the commission continues until the association is dissolved due to the disappearance of the individual members or the completion of the delinquency program. The co-participants who commit one or more crimes covered by the delinquency program will be personally liable for the so-called "purpose crime" in combination with the crime referred to in the art. 416 c.p.
Subjective element
For the purposes of the existence of intent, not only the will to associate but also the awareness of associating with at least two other people for the further purpose of committing an indeterminate plurality of crimes is necessary. This is obviously a specific fraud. Malice is excluded by ignorance of the criminal nature of the facts falling within the common purpose.
The defense investigations
The lawyer Benedetto gives fundamental importance to defensive investigations, being the first and founding remedy to the excessive power of the prosecuting judiciary.
Defensive investigations are configured as the set of activities that the defender of the suspect, of the offended party or of the other private parties involved in the procedural matter, the deputy, authorized private investigators and - if specific skills are necessary - technical consultants can carry out, in order to research sources and/or acquire evidence favorable to your client.
Defensive investigations represent an important resource for the lawyer, who has the right to personally or through his assistants research useful elements for setting up the defense of his client. It is clear that the defense in a criminal trial is truly effective when it is not limited only to the refutation of the accusatory theory, but when it extends to the representation of evidence in favor of the person under investigation. These elements can be collected through various investigative activities, regulated following the introduction of Title VI-bis in book V of the criminal procedure code thanks to the enactment of law 7 December 2000, n. 397.
2. Regulatory evolution
During the validity of the previous code of rite of 1930 of inquisitorial nature, where the activity of obtaining evidence was carried out by the public prosecutor and the investigating judge, who had the right to conduct investigations and question witnesses, the role of the defender took shape mainly in a challenge to the evidence collected by the public prosecution during the investigation activities.
The promulgation in 1988 of the new code of criminal procedure (so-called "Vassalli code"), based on an "accusatory" system aimed at guaranteeing substantial equality of powers between prosecution and defence, led to an increase in the importance of the research role of evidence by the defender and other authorized parties throughout the entire criminal trial.
Law 7 December 2000, n. 397, in force since 18-1-2001, determined the inclusion in book V of the Title VI-bis code, repealing the art. 38 available att. c.p.p. which confined the defensive investigative sphere to interventions functional solely to requests for evidence during the trial phase, without concretely regulating the types of acts permitted, the methods of execution and the probative value. On the contrary, the new legislation introduces an organic discipline, whose structural structures materialize in the typification of defensive investigative activities and in the definition of the methods of documenting the results and their probative value.
3. Interviews, assessments and acquisition of information
Although endowed with less autonomy than the prosecution body in carrying out activities that affect the rights of others and therefore require the intervention of the judicial authority, the defender and his assistants are more free in relation to the methods of carrying out the acts, to the documentation and usability of the elements collected. In particular, legitimated subjects have the right to:
acquire information from people informed about the facts, through undocumented interviews, request and receipt of a documented written declaration and gathering of information (art. 391-bis c.p.p.);
request documents from the Public Administration (art. 391-quater c.p.p.);
access the places to view their status and/or carry out technical, graphic, planimetric or audiovisual surveys (art. 391-sexies and septies of the Code of Criminal Procedure);
carry out non-repeatable technical checks (art. 391-decies c.p.p.);
participate in the investigative measures carried out by the prosecution body, in particular in non-repeatable technical investigations (art. 360 c.p.p.), in the collection of summary information (art. 350 c.p.p.), in the interrogation of the suspect (art. 363 , 364, 374 and 388 c.p.p.), to searches and seizures (art. 365 c.p.p.).
4. Preventive investigative activity
Paragraph 2 of the art. 327-bis of the Code of Criminal Procedure, in providing the right to carry out defensive investigations "in every state and level of the proceedings" allows the carrying out of the so-called preventive investigative activity, if the establishment of a criminal trial is only possible.
These are investigations that fall outside the trial, as they precede it and are aimed at avoiding its subsequent establishment. Although this area is mainly of competence of professionals operating in the field of private investigations and regulated in the Consolidated Law on Public Security, pursuant to article 391-nonies of the Code of Criminal Procedure. – entitled “preventive investigative activity” – even the lawyer, who has been appointed through a mandate with authenticated signature and indicating the facts on which proceedings are requested, can carry out preventive investigation activities. In this case, the lawyer or the investigator who assists him will be able to carry out all the acts of the defensive investigations provided for by the art. 327-bis c.p.p., with the exception of those that require the intervention or authorization of the Judicial Authority, such as an inspection in a private place to which those who have the availability do not grant access or a unique technical assessment.
5. Defender's file
The documents constituting the investigative activity of the defender come together in what the art. 391-octies c.p.p. defines "defendant's file", the contents of which can be presented to the public prosecutor. and to the judge of the preliminary investigations and/or preliminary hearing, before he adopts a decision for which the intervention of the private party is expected or so that he takes it into account in the event that this eventuality occurs (e.g. when the defender fears the risk for your client of the issuance of a precautionary measure).
In defining the content of the defender's file, art. 391-octies explicitly talks about presenting evidence in favor of one's client, since there is no obligation to insert any documents and/or information unfavorable to the suspect collected during the course of the investigative activity.
6. Usability of investigative documents
The defense documents included in the defender's file may be used, in accordance with the provisions of the art. 391-decies, in order to challenge in whole or in part the content of the testimony of witnesses at the trial: the statements made by the defenders during the defense investigations can therefore be used to evaluate the credibility of the witness.
In particular, the art. 391-decies provides that the statements included in the defender's file can be used by the parties for disputes and readings, in all cases where this is permitted in relation to the documents of the preliminary investigations carried out by the prosecution, as established by the articles 500, 512 and 513 of the criminal procedure code.
The rule also includes the reading of documents prepared during the defense investigations in the event of the impossibility of repeating the defense activity, as is evident from the reference contained in the art. 391-decies, as well as the implementation among the subjects indicated in the art. 512 also of the defenders of private parties.
Costs for the firm's services
This firm pays close attention to mutual satisfaction regarding the so-called professional fee.
Always and in any case, even when legal aid is used, a professional contract is drawn up and proposed.
The Firm, viaof the lawyer Benedetto, Italian and Ukrainian criminal lawyer, guarantees, for anyone who needs, strong experience in the criminal law field. Furthermore, the Firm has developed ad hoc appeals to ensure that the sentences issued by foreign authorities are annulled or declared null and void by the respective Italian courts of appeal,in order to avoid the provision being mentioned on the criminal record and execution pursuant to articles. 730 et seq Criminal Procedure Code.
