Just a few days ago, the Chamber of Deputies gave its final approval to the bill entitled "Provisions on crimes against cultural heritage".
The text reforms the criminal provisions for the protection of cultural heritage - currently contained mainly in the Code of Cultural Heritage (Legislative Decree no. 42 of 2004) - and inserts them within the Criminal Code with the aim of carrying out a profound reform of the subject, redefining the structure of the discipline with a view to a tendency to tighten the sanctioning treatment, as provided by the Nicosia Convention of the Council of Europe ratified by Italy, and therefore, it is believed, with more preventive purposes.
Following the modifications approved by the Senate, the bill consists of 7 articles through which: i) it places in the Criminal Code the criminal offences currently divided between the Criminal code and the Code of Cultural Heritage; ii) it introduces new types of offences; iii) it raises the edictal penalties in force, thus implementing the constitutional principles according to which the cultural and landscape heritage needs further protection compared to that offered to private property; iv) it introduces aggravating circumstances when cultural heritage is the object of common offences; v) it intervenes on article 240-bis of the Criminal Code, extending the catalogue of offences that can be committed against cultural heritage. p. by expanding the catalog of crimes in relation to which the so-called extended confiscation is allowed; vi) intervenes on article 240-bis of the Italian Criminal Code. vi) modifies legislative decree no. 231 of 2001, providing for the administrative responsibility of legal entities when crimes against cultural heritage are committed in their interest or to their advantage; vii) modifies paragraph 3 of art. 30 of law no. 394 of 1991 regarding protected areas; viii) intervenes in the discipline of undercover activities, providing for their applicability also within the scope of activities to combat the crimes of money laundering and self-laundering of cultural assets carried out by police officers of bodies specialized in the sector.
As regards amendments to the Criminal Code, a new Title VIII-bis Of crimes against the cultural heritage is inserted and the following articles are introduced:
- 518-bis Theft of cultural property
- 518-ter Misappropriation of cultural assets
- 518-quater Receipt of cultural assets
- 518-quinquies Use of cultural assets originating from a crime
- 518-sexies Laundering of cultural goods
- 518-septies Self-laundering of cultural goods
- 518-octies Forgery of a private contract relating to cultural goods
- 518-novies Violations regarding the sale of cultural goods
- 518-decies Unlawful importation of cultural goods
- 518-undecies Illicit exit or export of cultural goods
- 518-duodecies Destruction, dispersion, deterioration, defacement, embellishment and unlawful use of cultural goods or landscapes
- 518-terdecies Devastation and looting of cultural and landscape goods
- 518-quaterdecies Counterfeiting of works of art
- 518-quinquiesdecies Cases of non-punishability
- 518-sexiesdecies Aggravating circumstances
- 518-septiesdecies Mitigating circumstances
- 518-duodevicies Confiscation
- 518-undevicies Fact committed abroad
- 707-bis Unlawful possession of soil borings or metal detecting equipment.
With reference to the amendments made to Legislative Decree no. 231/2001, the following regulations are to be introduced:
- Art. 25-septiesdecies Crimes against the cultural heritage
- Misappropriation of cultural assets
- Illegal importation of cultural assets
- Illegal exit or export of cultural assets;
- Destruction, dispersion, deterioration, defacement, embellishment and illegal use of cultural assets and landscapes;
- Counterfeiting of works of art;
- Theft of cultural assets;
- Receipt of cultural assets;
- Forgery in private agreements relating to cultural assets.
- Art. 25-duodevicies
- Laundering of cultural assets;
- Destruction and looting of cultural assets and landscapes.
It should be noted that the most important and impactful aspects of the reform have to do with the inclusion
- within the catalog of crimes in relation to which the extended confiscation is allowed, the crimes of receiving cultural goods, use of cultural goods from crime, recycling of cultural goods, self-laundering of cultural goods and activities organized for the illicit traffic of cultural goods, as well as
- within the catalog of predicate offences set out in Legislative Decree no. 231/2001, in the case of the commission of the aforementioned crimes in the interest or to the advantage of the entity, the two new articles 25 septiesdecies and 25 duodevicies.
Moreover, this further enlargement of the catalog of crimes of Legislative Decree no. 231/2001 comes very close after the equally recent introduction of the new art. 25 octies.1 following the implementation of Directive 2019/713/EU on the fight against fraud and counterfeiting of non-cash means of payment (including cryptocurrencies and virtual currencies) by Legislative Decree no. 184/2021 which amended articles 493-ter and 640-ter of the Italian Criminal Code and introduced article 493-quater of the Italian Criminal Code.
In the face of the tightening of the sanctions and the widening of the responsibilities, as briefly illustrated above, especially in the light of the inclusion of articles 25 septiesdecies and 25 septiesdecies of the Italian Criminal Code in the catalog of offences pursuant to Leg. 25 septiesdecies and 25 duodevicies (the relative sanctions of which can go as far as definitive disqualification from exercising the activity) it is desirable that auction houses, art galleries and, more generally, all professional operators in the sector with a medium-large organised structure, carry out a preventive risk analysis in order to assess the relevance of the new offences with respect to the company's operations and the activities actually carried out, in all their forms.
In the light of this analysis, where the nature of the activity actually carried out and the structure of the entity, through which this activity is carried out, require it, these operators should adopt an adequate Model of organisation and control, appoint a Supervisory Body, prepare and implement specific and effective protocols aimed at preventing the commission of the aforementioned offences and, in the final analysis, aimed at avoiding the application of the substantial penalties (also) to be borne by the entity itself in the event that one or more of the persons in charge is nevertheless responsible for some of the conduct that is criminally relevant pursuant to and for the purposes of the aforementioned regulations.
In fact, it should be pointed out that both of the aforementioned recent amendments, with the introduction of the relative regulations pursuant to and for the purposes of Legislative Decree no. 231/2001, are intrinsically linked if one thinks of payments relating to transactions involving the purchase, sale or, in any case, the transfer or exchange for valuable consideration of works of art and/or latu sensu cultural assets. In fact, for example, the explosion of the NFT market, mostly linked to the world of art, whose underlying currency is the cryptocurrency Ethereum, is there for all to see.