Defensive strategies for aggravated fraud to obtain public funds: a technical analysis of art. 640-bis c.p.

1. 1.

   Autonomy of the offense under art. 640-bis c.p.

   According to the established orientation of the Supreme Court of Cassation (SS.UU. n. 26351/2002), art. 640-bis c.p. is not a mere aggravating circumstance of common fraud, but an autonomous offense. This distinction is vital for defensive strategy as it directly affects the statute of limitations and sentencing, which in 2026 carries imprisonment from two to seven years. The defense must first verify if the charge is correctly formulated as an autonomous crime, assessing the applicability of the latest procedural reforms aimed at protecting public financial flows and the integrity of the state and European budgets.

2. 2.

   The distinction between fraud and undue receipt (art. 316-ter)

   The core of the defense often lies in reclassifying the facts under art. 316-ter c.p. (Indebita percezione di erogazioni a danno dello Stato, or 'undue receipt of disbursements to the detriment of the State'). The difference, established by the United Sections in judgment n. 7537/2010, lies in the induction into error. While under 640-bis the agent uses complex stratagems to deceive the official, art. 316-ter involves the mere presentation of false data or omission of information in a context of near-automatic disbursement. If the public body's checks were only formal and did not require critical scrutiny of the statements, the conduct can be downgraded to 316-ter, resulting in lower penalties.

3. 3.

   Analysis of the material element through AI

   The use of AI models such as ChatGPT, Claude, or Gemini allows the defense to process massive volumes of accounting data and reporting. AI can be trained to identify chronological discrepancies between invoices and Works Progress Reports (SAL), highlighting whether inconsistencies result from management complexity rather than deceptive intent. This technical analysis allows the defense to challenge the very existence of 'artifici o raggiri', demonstrating that the documents produced, although irregular, lacked the suggestive power necessary to constitute the induction into error required by art. 640-bis.

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   4.

   Challenging the causal link and functionality

   Automated analysis of tenders and procurement rules via AI enables verification of whether the contested statements were actually functional to obtaining the grant. If the administration already possessed data that would have allowed it to detect the irregularity, or if the allegedly false element was not decisive for the entity's decision-making process, the causal link fails. In such cases, the conduct is not suitable to constitute fraud because there is no dependency relationship between the stratagem and the act of asset disposal performed by the granting entity.

5. 5.

   Sanctioning profiles and mandatory confiscation

   The offense under art. 640-bis c.p. is prosecuted ex officio (procedibile d'ufficio) and carries severe financial consequences. Upon conviction, mandatory confiscation (confisca obbligatoria), including by equivalent value, of the assets constituting the profit of the crime is mandated. Therefore, the defense strategy must also aim at protecting corporate assets by challenging the exact quantification of the profit. It is essential to distinguish between the financing obtained and the costs actually incurred for legitimate activities, as recent case law tends to limit confiscation to the net economic benefit derived from the illicit conduct, avoiding unjustified double sanctions.

6. 6.

   Doctrinal evolution and self-laundering

   In 2026, debate persists regarding the criminal relevance of reinvesting proceeds from 640-bis into lawful economic activities, potentially constituting the crime of self-laundering (auto-riciclaggio). The defense must carefully analyze the destination of the funds to exclude the possibility of multiple offenses. For updates on punishability thresholds adjusted for 2025/2026 inflation and the latest orientations of the Court of Cassation, consulting verified databases is essential. edit.legal supports professionals by providing access to consolidated sources and tools for drafting defense briefs that integrate regulatory data with the latest legal developments.

References: Articolo 640-bis Codice PenaleArticolo 316-ter Codice PenaleCassazione Penale, Sezioni Unite, Sentenza n. 26351/2002Cassazione Penale, Sezioni Unite, Sentenza n. 7537/2010

Editorial oversight: Avv. Federico Papa·ICAMUpdated 1 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