By judgement n. 22225 on January 19th 2012 the Sezioni Unite, which constitute the most authoritative section of the italian Court of Cassation, have pronounced the rule of law, according to which «there cannot be criminal liability for who buys things which regulations have been violated, concerning the origin of the products and industrial property».
The case that lead to this decision originates from the conduct of a subject that bought online a forged “Rolex” from China, but which was blocked afterwards by the customs and therefore never reached the purchaser.
The accused was charged with an offence of attempted fencing. According to the defence, instead, the conduct in question fell into the field of application of breach of administrative law as in art. 1, paragraph 7 of the Legislative Decree n. 35 of 2005 (it became law on May 14th 2005, n. 80, and in the modified version of the law on July 23rd 2009, n. 99).
The offence of fencing (art. 648 in the Penal Code) subsists when “Outside of the cases of involvement in offence, who, with the aim of gaining profit for themselves or others, buys, receives or conceals money or things coming from any crime, or interposes to have them bough, received or concealed”. The necessary prerequisite is that another crime has been committed prior to this offence (known as Prerequisite Offence). For this very reason, in the field of court cases about forgery/alteration of registered distinguishing marks, the fencing is charged in addition to the offence as in art. 474 in the Penal Code (“Smuggling and trading of forged products”) and this is especially true considering the well-known decision taken by the Sezioni Unite on June 7th 2001, n. 23427 that has explicitly approved the relation between these regulations.
The breach of administrative law, according to the legislative decree n. 35 on March 14th 2005 punishes (with a fine ranging from €100 up to €7,000), the purchaser who buys things which, because of their quality or for the conditions of those that offer them or for the price, regulations have been violated, concerning the origin of the products and industrial property.
Before said intervention by the Supreme Court, the criminal liability of those purchasers in such cases was under discussion. In particular, two different strands originated: the first that lead to fencing offence, and the second that still considered it a breach of administrative law. The solution adopted by the Court, based on a methodical interpretation of these regulations, was the latter. The differences between the two are noticeable: the fencing offence can be committed by any subject, but the breach of administrative law is only applicable to the purchaser; the focus of the breach of administrative law is “things which, because of their quality or for the conditions of those that offer them or for the price, regulations have been violated, concerning the origin of the products and industrial property.”, while the focus of the offence is “things coming from any crime”. Lastly, even considering the psychological aspect, a change in wording has broaden the field of application of the regulation, including the purchaser’s “full awareness” on the product’s origin.
Certainly this decision will relieve the burden on court cases. As a matter of fact, nowadays various state prosecutors, strictly interpreting the regulations, have tried to prosecute the larger and larger number of purchasers that, also making use of the e-commerce, support the fake market.