05 Nov administrative liability of entities and preliminary investigations

He d. lgs. 8 June 2001, n. 231 represented a real turning point in both criminal and commercial law, intertwining the essential profiles of both areas, returning a regulatory complex that entered with a straight leg, much in the business world, as in that of legal practitioners. With the introduction of the administrative liability of entities arising from a crime, indeed, a new within the mechanisms of governance of legal persons: the reference is clearly to the adoption of compliance programs, that is, those suitable business organization models, on one side, to prevent the risk of crimes being committed within the company e, on the other, to exempt the entity from the charge of administrative liability deriving from the commission of the predicate offenses.

If these are the profiles that are relevant from a business point of view, important innovations were also introduced from the point of view of the procedural assessment of this type of responsibility, as were the issues relating to the compatibility of this institution with the fundamental constitutional principles in criminal and procedural criminal matters., arising above all from the substantial overcoming of the principle contained in the broachard society can not be wrong.

The articles of the d. lgs. n. 231 of the 2001 basically four are dedicated to the discipline of the preliminary investigation phase (Articles. 55 a 58) and are characterized, generally, to be mere provisions of connection with the code regulations, which is substantially fully applied: all the relevant essential rules of this procedural phase are therefore also applicable to the rite of society, with the exception of those governing the performance of acts ontologically referable only to the natural person (eg, pre-precautionary measures or the taking of biological samples from living people). The only essential difference from the codicistic rite is the archiving discipline, contained in art. 58, which prepares a deviation from the code model with regard to the control over the failure to pursue criminal prosecution.

L’art. 55 governs the first due act of the procedure, arranging the annotation of the news of the administrative offense in the register referred to in art. 335 c.p.p., entrusting the task to the public prosecutor, who "proceeds immediately"Noting the identification elements of the entity, the details of its legal representative where possible, as well as the crime on which the offense depends. Clearly, this annotation is made simultaneously or subsequently to that of the predicate offense e, like this, it may initially be carried out against unknown persons, then having to be updated.

As for the paragraph 2 dell’art. 55, it provides the possibility for the entity and its lawyer to make the request ex art. 335, comma 3 c.p.p., in order to know the existence of annotations charged to the legal person.

The importance of the moment of annotation of the news, in its identifying completeness, the paragraph highlights it 2 dell’art. 56, which identifies in it the moment in which the term of maximum duration of the preliminary investigations begins to run. Although the provision refers to the "deadline for ascertaining the administrative offense”, it is reasonable to assume that it is a slip of the legislator. As for the extent of the maximum duration of the investigations, esso, a norma dell’art. 56, comma 1, it is set within the same deadline as for the preliminary investigations relating to the predicate offense, thus making a reference to the codicistic discipline of the terms (Articles. 405 e ss. c.p.p.).

It should be emphasized, But, a difference in the context of the discipline of calling for investigations ex art. 412 c.p.p., for which, a norma dell’art. 413 c.p.p., the request can also come from the injured person: in the proceedings against the entity this cannot be replicated, given that the offended person has no right to intervene there (the specification becomes necessary by virtue, on one side, of the lack of possibility for the p.o. to be a civil party e, on the other, of the eventuality that one proceeds autonomously against the entity ex art. 8).

Despite the fact that the annotation is a real obligation on the part of the public prosecutor and not a discretionary choice, given the provision of the disciplinary sanction against the magistrate, the non-observant practice is unfortunately widespread, undermining the effectiveness of the system set up by the legislator of 2001. The reason for this injustice is found essentially in the fact that, also given the peculiarity of the archiving discipline (v. infra), the conviction of the free choice of the public prosecutor in investigating the legal person or not has spread (or in formalizing it status of investigated).

The last two provisions of d. lgs. cit. that deal with the preliminary investigations phase are those contained in arts. 57 e 58, respectively relating to the guarantee information and the filing of documents. As for the warranty information, the reference legislation is that referred to in art. 369 c.p.p., supplemented by the specifications contained in art. 57, that is "the invitation to declare or elect domicile for notifications as well as the warning that to participate in the procedure [lens] must file the declaration referred to in art. 39, comma 2”. Certainly applicable is also art. 369-to, relating to information on the right of defense.

As for the archiving discipline, That, as it is known, constitutes one of the two alternative outcomes of the preliminary investigation phase, representing the failure to exercise the action by the public prosecutor. Given the mandatory nature of the criminal action stated by art. 112 Cost., in the code rite, the judge for preliminary investigations was entrusted with the task of monitoring the correctness of the prosecutor's actions. In a conspicuously derogatory manner with respect to Articles. 408 e ss. c.p.p., instead, in the rite of society, art. 58 provides that, to order the archiving measure, is not the GIP at the request of the public prosecutor, but directly the latter, with a reasoned decree, witnessing the replacement of judicial control with hierarchical control, in the wake of the provisions for the administrative sanctioning procedure ex art. 18, comma 2 l. 24 November 1981, n. 689. Indeed, the provision continues affirming the obligation of the public prosecutor to communicate the decree of archiving of the documents to the Attorney General at the Court of Appeal, who "can carry out the necessary checks e, if it deems the conditions to be met, complains to the entity of the administrative violations resulting from the crime within six months of the communication”.

The choice of the legislator rests on the assessment of inapplicability to the proceedings against the entities of the principle of mandatory prosecution pursuant to art. 112 Cost.: indeed, according to the compilers, being an administrative offense, “there is no need to check the correct exercise of criminal proceedings by the public prosecutor”. According to the words of the legislator, it would even be considered that the hierarchical control provided for by art. 58 is almost an unnecessary addition. However, strong is the criticism of the doctrine, emphasizing that the need for judicial review is recognizable in the close relationship with the main criminal proceedings and in the identification ex law of archiving cases (groundlessness of the news, unsuitability of the elements collected to support the accusation, inadmissibility, extinction of the crime, of the offense or administrative sanction); it is necessary in order to guarantee the effectiveness of the system, in order to prevent discretionary choices of the public prosecutor, which would cause an intolerable prejudice to the general principle of equality. The danger for the maintenance of the principles of legality and equality would not be adequately neutralized by the provision of a mild hierarchical control.

Other problematic profiles relating to the unilateral nature of the archiving decree concern the relationship with the revocation of precautionary measures and with the discipline of the reopening of investigations: as to the first question, from the reading of art. 47 e 50, it appears that the revocation of the precautionary measure should always be ordered by the judge; however, the same transitory effect would result from the public prosecutor's dismissal decision. Nonetheless, this is more of a formalistic quibble than a really problematic issue, given that it takes the form of a favor for the suspect subjected to precautionary measures.

As for the relationship of the discipline contained in art. 58 with that of the reopening of investigations motivated by the need for new investigations, the question arises about the existence of some constraint on the initiative of the public prosecutor. Given the clear option of the legislator, the conclusion seems obvious that no type of judicial review can be placed on this initiative by the public prosecutor. We could then ask ourselves if it was possible to hypothesize a hierarchical control of this initiative: however, it would still be ineffective, given the impossibility of predicting any procedural preclusion of the prosecutor's unlawful initiative in this regard. Consequentially, the regulatory vacuum left in this area, together with the freedom essentially left to the public prosecutor ex art. 58, allows the latter to elusively use the archiving tool, allowing him to escape the time constraint established by art. 56 and to continue his informal research activity indefinitely.

This discipline of unilateral archiving, subjected to mere hierarchical control, contributed to establishing the idea of ​​the substantial freedom of the prosecution body in pursuing or not a specific administrative offense, leaving him the freedom to establish the rules of criminal policy, determining the presence of an obscure number within the judicial statistics, with regard to those offenses that are systematically ignored by the prosecutors. To about, observing the data from the Public Prosecutor's Office at the Milan court, office among the most advanced in the application of corpus, it can be noted that the registrations of administrative offenses in correspondence with those of the related predicate offenses are only the 10%, with one spread of the 90% which substantiates the gray figure that invalidates the efficiency statistics of the judicial systems.