Anti-money laundering, Sos revealed, then published, undermine the system

Who can use SOS (suspicious transaction reports), how can they be used and what are the consequences for any unauthorised access and use? Article 35 of Legislative Decree 231/2007 (the Anti-Money Laundering Decree) requires obliged parties to report to the FIU, without delay, any suspicious transaction of money laundering or terrorist financing. Correct compliance may make it possible to promptly intercept the entry of funds of illicit origin into the financial system, triggering checks to verify the grounds for suspicion.

In view of the involvement of different actors in the prevention activity, the law emphasises cooperation - especially with a view to avoiding unnecessary waste of resources from duplication of tasks and functions - while requiring, however, that the confidentiality of the reporter be protected. The FIU, once it has received the reports, carries out their analysis with tracking of the operator in charge of the file.
Strict collaboration is maintained with the supervisory authorities and the DNA. To the former, the FIU transmits violations of anti-money laundering obligations, to the latter it ensures the timely transmission of information and analysis through the Special Currency Police Unit of the Gdf or, for organised crime reports, through the Dia.
The Dna stipulates with the Uif, the Gdf and the Dia technical protocols for the exchange of information, ensuring the anonymous processing of personal data necessary to verify the relevance to ongoing judicial proceedings and the confidentiality of the reporter. In addition, the Uif ensures the analysis of financial flows of the proceeds of organised crime or terrorism financing, on sectors of the economy deemed to be at risk, on categories of payment instruments and on specific territorial economic realities required by the Dna and anti-terrorism.

The circle closes with the 'return flow', the communication by the FIU to the reporter directly or through the self-regulatory bodies, of the outcome of the reports, also taking into account the information received from the DNA and the Special Currency Police Unit.
The entire transmission system is safeguarded by measures for the confidentiality and anonymity of the reporter. Thus, obliged persons and professional orders that receive reports from their members are obliged to take measures to ensure the utmost confidentiality of the identity of the reporting persons (Article 38(1) and (2)).
The report forwarded must be devoid of any reference to the name of the reporting natural person (Article 36(6) and Article 37(2) and (3)), and the investigating bodies must omit, in the reports forwarded to the judicial authority, the identity of the natural persons and of the obliged persons who sent the report (Article 38(4)). The judicial authority itself may request the identity of the reporter only by reasoned decree, when indispensable for the purpose of ascertaining the offences for which proceedings are being taken (Article 38(3)). Violation of the prohibition to disclose Sos may also constitute a criminal offence. In particular (Article 39, Paragraph 1, Legislative Decree 231/2007) there is a prohibition for 'anyone' who is in any case aware of it, to give notice to the client concerned or to third parties of the report, of the sending of further information requested by Uif or of the existence or likelihood of investigations.
The return flow is also subject to the same prohibition. In these cases, violation of the prohibition of communication, unless the fact constitutes a more serious offence, is punishable by imprisonment from six months to one year and a fine ranging from EUR 5,000 to EUR 30,000 (Article 55(4) of Legislative Decree 231/2007).

It is worth noting that the active subject of the offence is not necessarily the person who made the report but anyone who, for various reasons, is aware of the transaction. Finally, the legislation in force (see Article 38 3 bis) provides for a further offence for anyone who discloses the identity of the reporter, an offence punishable by imprisonment of two to six years, specifying that the same penalty must also be applied to anyone who unduly discloses information concerning the sending of the report and the information transmitted by the FIU or its content, if the information disclosed is likely to allow the identification of the reporter.
So if 'anyone', without being authorised by law, uses the Sos or the information contained in the Sos and discloses it to others or publishes it commits an offence.
An offence that undermines the cardinal principle of the active collaboration of those obliged to the anti-money laundering legislation who, if they see the Sos revealed to third parties or even published, may fear for their working and social safety, even to the point of deciding not to report any more.