According to the United Sections of Corte di Cassazione, violations committed by legal persons ex D.lgs. 231/2001 will not be settled by probation type Messa alla Prova
Criminal liabilities of companies in accordance with the Italian law ex D.lgs. 231/2001
As is known, the current Italian regulatory framework has abolished the societas delinquere non potest (“a company cannot commit crimes”) principle: after legislative decree 231/2001, criminal liability is now attributed to legal persons, i.e. companies located or working in Italy. In more detail, a company is subject to criminal liability when one of its heads commit one of the crimes that the legislative decree recognizes as a violation under the company criminal liability, (this list of crimes has progressively been expanded, and includes now almost all types of offences), in the interest of the company itself.
As is known, even if the company is located abroad, but works in Italy, whenever an offence is committed, in whole or in part, in an Italian territory, according to article 6 c.p.,– committed by one of the company’s heads, i.e. one of the individuals who manage or supervise the foreign company, for the benefit or in the interest of the foreign company itself – criminal liability of the company ex D.lgs. 231/2001 can be applied.
Applicable penalties for companies
Penalties that can be applied under legislative decree 231/2001, in case a company is found guilty, are especially serious, and can cause significant and lasting damage to a company’s efficiency and prosecution of activities. Penalties, in details, are:
- Financial penalty;
- Interdictory penalties;
- Publication of conviction.
Specifically, interdictory penalties can include:
- Prohibition of carrying out activities;
- Suspension or revocation of authorizations, licenses or concessions that are functional to the committing of the offence;
- Prohibition of dealing with public administration, except for the supply of public services;
- Exclusion from benefits, fundings, contributions or subsidies, and possible revocation of those already granted;
- Prohibition of advertising goods or services.
It is important to remember that interdictory penalties can be applied also as a precautionary measure, from the beginning of investigations and throughout the whole trial, meaning that the penalty can be imposed even before establishing the responsibility of the company in the alleged offence. Financial penalties can be especially severe. Moreover, the bigger the company that is being accused, the bigger the financial penalty imposed by the judge can be, according to article 11 of D.lgs. 231/2001.
Messa alla prova: a way out for guilty companies?
Suspension of the trial with the type of probation called messa alla prova is an alternative way of defining a criminal trial. It can be put into practice from the early stages of the preliminary investigations, and can be used to reach a judgment of acquittal from the offense, if the suspect or defendant’s probationary period, which the judge can grant under certain regulatory factors, is concluded with positive results.
Without any doubts, legislative decree 231/2001 shows a strong preventive inclination, in the sense that its purpose is to achieve recovery of the companies’ legality; that being said, the question of whether it was possible or not for a company that is undergoing a criminal case to be admitted to messa alla prova (and if a positive conclusion is reached, whether it was possible to receive acquittal following the statement of extinction of the offense) has been debated for a long time.
According to a favorable position, the lack of coordination between the functioning of messa alla prova and D.lgs 231/2001 cannot be considered an expression of a legislator’s intention to exclude legal persons from the institution: its reasons need to be linked, in the first place, to the idea of “deflating” the defendant’s charges and, secondly, to the purpose of reaching an early social reintegration of the defendant, with the knowledge that, very frequently, penalties are applied a very long time after the sentence, and that can be problematic not only from a general prevention point of view, but also for what concerns the particular prevention function.
According to this position then, a company that was undergoing a criminal case could, under certain conditions, among which was without any doubts the adoption of a delayed (filled after the crime) MOGC, Modello di Organizzazione, Gestione e Controllo (Organization, Management and Control Form), obtain the suspension of the trial and, once the restorative behavior and compensation listed in article 17 of d.lgs 321/2001 had been provided, obtain statement of acquittal from the offence.
It was a way out that had found applications in numerous verdicts, but that had equally been rejected in a number of judgments. So much so that, as is usually the case with case law disputes, the issue was submitted to the United Sections of Corte di Cassazione.
A negative resolution from the United Sections: no messa alla prova for companies
Criminal United Sections of Corte di Cassazione is, notoriously, the main authority in what concerns the rightful application of laws in Italy. Therefore, with sentence n. 14840/2023, submitted on April the 6th 2023, it established that messa alla prova does not apply to accused companies, on the basis of decree 231.
The United Sections have observed that messa alla prova has a criminal sanctioning nature, as it can be noticed from its very own nature, from the duration of prescriptions and from the eligibility to the treatment program assessment, on the basis of criteria that relate to adjusting the penalty. Nonetheless, the criminal liability of legal persons, however structured in the course of the criminal trial, has an administrative nature, and, therefore, messa alla prova cannot be applied to companies, in compliance with the rule of law principle stipulated by article 25, comma 2 of the Constitution, minus explicit provision of law.
Finally, as Corte di Cassazione notes, it needs to be remembered that the nature of the prescriptions that constitute the treatment program that is typical of messa alla prova is evidently made for physical persons. A striking example in that sense is sentencing the defendant to community service: in that case, the aim is to reeducate and reinstate the individual in the society, and that aim cannot easily be applied to a legal person, which, by definition, does not possess psychophysical characteristics.
Therefore, considering what the United Sections deliberated, access for companies to messa alla prova needs to be considered denied, at least at this present time and until any legislative change or law reformation.
Adopting Modello 231: more than ever, the only way to avoid criminal sanctions.
As avoiding a criminal trial with messa alla prova has proven impossible, the importance of being able to provide a MOGC ex lege 231/200, which also needs to be adequate and acceptable, has now increased.
Indeed, as is known, in compliance with legislative decree 231/2001, companies that are equipped with an adequate Modello di organizzazione, gestione e controllo (MOGC), before the crime was committed, are not subject to criminal liability.
What Studio Arletti & Partners can do: Modello ex d.lgs 231/2001 and a special section for transfer risk assessment.
Studio Arletti, with its Partners specialized in workplace safety, criminal law and procedure, and D.lgs 231/2011, can assess the viability of a MOGC 231 and, if a company already has the Form, can determine whether it also comprises risks deriving from staff transfers abroad, and, when necessary, put in place a special section that can integrate the existing Form.
Considering then what the United Section deliberated, and therefore the fact that it is impossible for a company to avoid a criminal trial with messa alla prova, adopting and implementing a MOGC is now more relevant than ever; it is also fundamental that this form, in the case of a criminal case, is considered appropriate by the criminal judge in charge. Therefore, now more than ever, this is the best, if not the only, means to minimize the risk of a criminal sentence for companies.