Defense Strategies for Aggravated Fraud under Art. 640-bis c.p.: The Role of AI

1. 1.

   The Legal Boundary between Art. 640-bis and Art. 316-ter c.p.

   The core of the defense strategy lies in the legal classification of the act. While art. 640 bis c.p. punishes fraud with two to seven years of imprisonment, art. 316 ter c.p. (undue perception of funds) offers significantly lighter penalties. According to the United Sections of the Supreme Court (Judgment no. 11969/2025), the distinction is substantive: fraud requires active deceptive conduct, known as 'artifici e raggiri'. If the applicant merely submits false declarations without a complex fraudulent structure, and the authority grants the funds due to a lack of oversight, the defense must argue for reclassification under art. 316 ter c.p. This is crucial for mitigating potential sentences and severe secondary consequences.

2. 2.

   Challenging 'Artifici e Raggiri' in the Digital Era

   To fulfill the requirements of art. 640 bis, a mere lie is insufficient. Case law requires a 'quid pluris' (something extra) capable of overcoming the counterparty's good faith. The defense must analyze whether the submitted documentation was blatantly incomplete or contradictory. If the public official's error stems from their own negligence in screening the application, the causal link between the defendant's conduct and the disbursement is broken. Following D.Lgs. n. 132/2025, particular attention must be paid to the aggravating circumstance of using AI to generate false evidence (documentary deepfakes). The defense must demonstrate that the IT tools used by the client were for organizational or compilatory purposes rather than deceptive ones.

3. 3.

   Verifying the Nature of the Disbursement

   Not every payment made by the State falls under art. 640 bis. Supreme Court Judgment no. 22905/2026 clarified that this article applies only to grants, subsidies, or low-interest loans where the disbursement lacks an immediate counter-performance. Payments resulting from reciprocal contracts, such as service or supply procurement, are excluded. In such instances, any potential fraud should be categorized as simple aggravated fraud under art. 640, paragraph 2, no. 1 c.p. or fraud in public supplies under art. 356 c.p. Correctly identifying the source of funding allows the defense to object to the application of the more severe statute and its associated disqualifying sanctions.

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   4.

   AI for Massive Correlation of Evidentiary Data

   Aggravated fraud trials often involve thousands of accounting documents and PNRR reporting files. Using AI allows the defense to quickly index entire corporate registries or financial records, isolating legitimate financial flows from contested ones. Through advanced language models, the attorney can extract metadata proving that expenses were actually incurred, refuting the prosecution's hypothesis of 'non-existent operations'. AI transforms a mass of raw data into a coherent chronological timeline, making the client's good faith in managing the funded project visible and facilitating the proof of the 'fatto materiale' (material fact) in favor of the defense.

5. 5.

   Analyzing Administrative Error through AI

   A critical element of art. 640 bis is the induction of error in the public official. By using AI to analyze standard decision-making processes of the Public Administration (e.g., operational manuals for calls for tenders), the defense can highlight internal procedural anomalies. By uploading administrative reports, AI can identify whether the authority ignored red flags that should have stopped the disbursement regardless of the private party's conduct. If the payment resulted from superficial or automated administrative practice without verification, the defense can argue the absence of real deception, an indispensable constituent element for aggravated fraud.

6. 6.

   Drafting Technical Briefs and Defense Outlines

   Artificial intelligence accelerates the drafting of complex defense briefs, allowing for structured technical arguments that deconstruct the contested conduct. edit.legal facilitates this process by providing access to targeted judicial precedents. AI can generate comparison tables between the client's statements and the objective requirements of the tender, highlighting discrepancies that do not constitute intent (dolo). Furthermore, it is possible to simulate different interpretations of the 'momento consumativo' (consummation moment) of the crime, particularly useful in tax credit cases where 2026 case law is still evolving regarding whether it occurs at credit creation or its actual use in compensation.

References: Articolo 640-bis Codice PenaleArticolo 316-ter Codice PenaleCassazione Penale, Sezioni Unite, Sentenza n. 11969/2025Cassazione Penale, Sentenza n. 22905/2026D.Lgs. n. 132/2025 (Adeguamento AI Act)Cassazione Penale, Sentenza n. 5685/2026

Editorial oversight: Avv. Federico Papa·ICAMUpdated 4 October 2026Content drafted with AI support and subject to editorial source checks. Despite these controls, inaccuracies may remain: reports and rectification requests are welcome. Report a correction