of Stefano Lombardi, Cassation lawyer, lecturer in National and International Legislation of Cultural Heritage at the Catholic University of the Sacred Heart of Milan —- In 2001, for the first time in Italy, the administrative liability of legal persons was introduced in our law. More precisely with the legislative decree 8 June number 231 a form of criminal liability of entities is introduced for the first time in our legal system. Always, in our legal tradition, the criminal liability was considered the consequence of a conduct of the physical person, having to consider that only the man, with his action or omission, can give rise to activities susceptible to being penalized criminally. A theft, an injury, a robbery can be committed by a man and not by an abstract entity such as a legal person.
Criminal liability for acts of others
Moreover, since the post-war period, the prohibition of criminal liability for the acts of others has always been present in our legal system, a principle that has taken on a general scope and effectiveness over time and in any case such as not to allow exceptions. It was always wanted to reiterate that in the context of criminal law and its precepts it is the individually identified individual who is called to answer for his actions or omissions, which do not comply with the dictates of a right, who inflicts punishments to discourage the conduct considered improper.
We have therefore always tried to distinguish the behavior of those who commit an action or commit an omission, from that of people who have not done anything. For this reason, only those who materially engage in improper conduct can be held accountable for crimes. If the director of a joint stock company – for example – commits a theft, he responds as a person and does not involve the company he governs, because it is an abstract entity, of which he is a mere representative.
Criminal liability for entities
The Republican Constitution itself, reacting to the historical experience of the twenty years and with the intention of absolutely prohibiting collective or transmissible penalties to persons unrelated to the crime, explicitly provided for in article 27 that criminal responsibility is personal, thus leading to the belief, on the one hand , that only natural persons can commit crimes and, on the other hand, that only the perpetrator of the behavior deemed improper can be the recipient of the sanction.
Except that, starting from the 1970s, also due to the strong and prevailing spread of illicit conduct adopted with the use and recourse to legal persons, the European Union recommended to the Member States to introduce some form of liability criminal also for entities, in order to discourage the commission of crimes behind the screen of entities, companies or foundations.
In particular, the 1995 Brussels Convention and the 1997 OECD Convention recommended that EU states take measures to establish the liability of moral persons. Thus overcoming the Romanistic approach and the concept expressed by the Latin tradition with the principle “societas delinquere non potest”.
The new regulation
The new regulation provides for criminal liability for entities in the event that they commit some specific irregularities. More in particular criminal responsibility that weighs on the material perpetrator of the crime is in some way accompanied by criminal liability for the acts of others, in the sense that whoever legally represents an Entity can be held liable for not having observed a behavior model, previously adopted and approved by the same person legal (the so-called organizational model), in such a way that the deviation between the predicted model and the event that generates criminal responsibility can also be ascribed to those who would have had the burden of preventing, by engaging in conduct envisaged by a prefigured model and that – vice versa – in the case specific has not been put in place.
With the new legislation, a criminal liability has therefore been configured, based not on the commission of a fact that constitutes a crime, but on the reproachfulness attributable to the entity for not having observed a predetermined model of behavior, defined – as already mentioned – organizational model, whose non-compliance, as – precisely – reason for reproach, generates imputability on the part of the legal person.
With Law 231, entities and companies can create a good organizational model which, taking its cue from the analysis of the business management model, provides for the mapping of the main decision-making and organizational processes, in order to make them traceable and to make management and assessment of the most critical aspects in the governance of the company organized as a legal person.
The experience of over 20 years has shown that the new discipline undoubtedly achieves positive effects, as the deterrence constituted by the criminal nature of the legislation creates a higher attention threshold than other sanctioning methods. It has been observed that the elaboration and management of an organizational model can be a cause of burdening the governance of decision-making processes and it has been asked whether in some way the game is worth the candle.
In my opinion, the balance sheet can certainly be considered positive and it is desirable that in the future the regulatory framework of Legislative Decree 231 can be increasingly improved and refined. The path remains to maximize the organizational aspect and to manage the punitive aspect with realism, considering that it is the latter that poses the most problematic profiles due to the non-specular coincidence between the perpetrator of the fact and the person responsible. In reality, a good balance and a careful balancing of the two needs can help to make our country careful to combat the improper behavior of those entities and companies, which, taking advantage of the corporate configuration, can be encouraged to carry out incorrect or evasive practices of the consequent obligations. . But this obviously must take place without upsetting the general principles of criminal law.
On this subject – obviously specialist – I have elaborated and published, with the Cedam publishing house, the volume entitled “The organizational management and control model and the supervisory body pursuant to Legislative Decree 231/2001.”