Commentary on Judgment No. 25764 of 2023: Criminal Liability of Entities and Prescription

The recent judgment No. 25764 of April 18, 2023, filed on June 14, 2023, by the Court of Cassation, has raised important considerations regarding the criminal liability of entities and the prescription of offenses committed by them. The Court rejected the questions of constitutional legitimacy raised regarding Article 22 of Legislative Decree No. 231 of 2001, affirming their manifest groundlessness.

The Regulation of Entities' Liability

Legislative Decree No. 231 of 2001 introduced in Italy a system of administrative liability for legal entities, establishing that an entity can be held liable for crimes committed in its interest or for its benefit. This regulation has represented a significant step towards the regulation of entities' liability, creating a legal framework aimed at preventing and repressing the commission of crimes in the context of economic activity.

In particular, Article 22 of this decree establishes the rules regarding the prescription of offenses. The Court clarified that, due to the different nature of administrative offenses compared to criminal ones, the prescription regime applicable to legal entities may differ from that provided for natural persons. This is justified by the aim of safeguarding the integrity of private economic initiative, preventing it from becoming a fertile ground for the commission of crimes.

The Constitutional Legitimacy of the Norm

Criminal liability of entities - Prescription of the entity's offense - Questions of constitutional legitimacy of Article 22 Legislative Decree No. 231 of 2001 for conflict with Articles 3, 24, 41, and 111 of the Constitution - Manifest groundlessness - Reasons. Regarding the administrative liability of legal entities, the question of constitutional legitimacy of Article 22 of Legislative Decree No. 231 of June 8, 2001, concerning the regulation of the prescription of the entity's offense, is manifestly unfounded for alleged conflict with Articles 3, 24, second paragraph, 41, and 111, second paragraph, of the Constitution, justifying the derogatory regime regarding the prescription of the offense of natural persons due to the different nature of such offense, and constituting the overall system of "ex delicto" liability of the entity an implementing regulation of the aforementioned Article 41, aimed at preventing private economic initiative from facilitating the commission of crimes instead of promoting social activity. (In its reasoning, the Court also excluded that such regulation conflicts with the conventional guarantees relating to "matière pénale," as provided in Article 6 of the ECHR, as a parameter interposed by Article 117 of the Constitution, considering the autonomy of the entity's offense from the underlying crime and the greater complexity of the related assessment).

The Court reiterated that there is no conflict between Italian legislation and the guarantees provided by international conventions, particularly Article 6 of the ECHR, affirming the autonomy of the entity's offense from the underlying crime. This is a crucial point, as it recognizes the complexity of the system of entities' liability and the need for a specific and distinct regulation compared to that of natural persons.

Conclusions

Judgment No. 25764 of 2023 represents an important confirmation of the current legal framework on entities' liability, highlighting the importance of a prescription system that takes into account the peculiarities of administrative offenses. The Court of Cassation, with this decision, not only clarified fundamental aspects of the existing legislation but also sent a clear signal regarding the protection of economic activity, emphasizing that the liability of entities should not be seen as an obstacle, but rather as a tool to prevent unlawful behavior in the context of business activities.

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