Cracking Down on Corporate Crime in ItalyExpressO (2015)
AbstractThe paper describes the changes in the Italian system regarding corporate criminal liability. With the implementation of Legislative Decree No. 231 on June 8th, 2001, Italy aligned itself with other European countries (France, the United Kingdom, Holland, Denmark, Portugal, Ireland, Sweden, Finland), which already provided for the liability of corporate entities responsible for committing certain crimes. The previous gap in legislation had serious implications at an international level, especially in light of the objective of fostering cooperation in the Area of Freedom, Security and Justice in the European Union - through, for example, the progressive alignment of Member States’ legislation. These implications were amplified by the fact that corporate crime was increasing more rapidly than crimes committed by individuals with manifestations that often transcended national borders. The article focuses on compliance programs provided for by L.D. No. 231/2001. These programs are a possible cause of acquittal only if implemented before the crime. The lack of a pre-existing program exposes the corporation to the risk of being convicted. The problem is that the ante factum compliance programs evaluated by judges thus far have not passed the assessment of adequacy. The only instance in which a company was acquitted due to conformity of its programs has recently been annulled by the Court of Cassation (Italian Court of Last Resort). This undoubtedly represents a point of great concern for corporations. One could, therefore, debate the utility of implementing a compliance program ante delictum. The failed experience might encourage corporations to assume the risk of crime and then decide to adopt a suitable program during the proceeding. It is important to highlight the fact that if the corporation implements a post factum compliance program, which is adequate to prevent the crime from happening again in the future, the sanction can be reduced but not avoided entirely. At the same time, however, an adequate post factum compliance program can avoid, or suspend, precautionary measures imposed by the judge. The precautionary procedure constitutes an interlocutory phase of the criminal proceeding and employs precautionary measures that can attack the corporation’s assets, immobilizing them through seizure or temporarily inhibiting the corporation from carrying out certain activities (disqualifying measures). The precautionary procedure is pivotal in the L.D. No. 231/2001 due to the devastating consequences that these measures can have on corporations that must survive in a competitive marketplace. Hence, implementation of an adequate post factum compliance program is necessary to neutralize the precautionary measures. Furthermore, a suitable program enables the company to avoid disqualifying sanctions (that inhibit the company from carrying out its activities), making it subject only to a monetary fine. In this case, corporations have the opportunity to request special proceedings with which they can settle the issue once and for all, which would otherwise be precluded. When subjected to a criminal proceeding, corporations try to find a rapid solution, not only to resolve the precautionary issue but, more generally, to contain the exorbitant costs and losses associated with the pending charges. The fact remains that a post factum compliance program does not exclude the corporation from liability. In the American system, prosecution is discretionary and, therefore, the Prosecutor can decide not to file charges when the corporation expresses its willingness to change. In Italy, on the contrary, the lack of an ante factum program would force the Prosecutor to proceed and would preclude dismissal - even if the corporation reformed its organizational structure during the investigations. A different conclusion could be reached if the Italian Legislator heeded suggestions from scholars and recognized the implementation of reparative measures (organizational restructuring along with compensation for damages) as a legitimate cause for dismissal.
- Corporate criminal liability,
- compliance programs,
- precautionary measures
Publication DateJune 25, 2015
Citation InformationRosa Anna Ruggiero. "Cracking Down on Corporate Crime in Italy" ExpressO (2015)
Available at: http://works.bepress.com/rosaanna_ruggiero/2/