29 Apr liability of entities and prescription of the offence

The regulation of the prescription pursuant to art. 22 d. lgs. n. 231/01 has stimulated several questions on which the jurisprudence of legitimacy has been called to intervene. According to the terminology used by the legislator, this regime would only concern administrative sanctions (and not the administrative offence), providing for a limitation period of five years from the commission of the predicate offence. The Supreme Court in a recent sentence of the Sect. The criminal however established that "the principle of law according to which the limitation period established by art. 22 d.lgs. 231 of the 2001, on the subject of administrative liability of companies and entities, it's all about the crime, which therefore can no longer be prosecuted five years after the commission of the predicate offence, as the sanction definitively imposed, which must be collected, under penalty of extinction, within the term of five years from the final judgment of the sentence pronounced against the legal person”.

Questions have also been raised by the fact that the. 11 of the l. delegate n. 300 of the 2000 prescribed that "the interruption of the prescription is regulated by the provisions of the civil code” (became. r): indeed, that is, in relation to the causes of interruption of the limitation period indicated in the paragraph 2 dell’art. 22 d. lgs. 231 cit., such as the request for the application of disqualification precautionary measures and the contestation of the administrative offense pursuant to art. 59, raised the doubt whether, due to the interruptive effect produced by the contestation of the offence, it should have regard to the moment of the issue of the request for indictment (or of the other acts of exercise of the criminal prosecution pursuant to art. 405, comma 1, referred to in the art. 59 d. lgs cit.) or at the time of its notification to the entity, as the reference to the provisions of the civil code contained in the aforementioned provision of the enabling law would suggest.

The Court of Cassation has been repeatedly called to rule on this point, which has seen the rise of two distinct orientations within it: majority orientation, now consolidated, it is in the sense that the simple issuance of the request for indictment, as an act of contestation of the offence, discontinue the prescription; minority orientation, remained isolated, anchors the interrupt effect to the notification, consistently with the provisions of art. 2943 c.c.. The stoats have privileged the profiles of equalization between the defendant and the institution, rather than the indications of the delegating legislator, this in full coherence with the fact that the corpus regulatory interfaces in an ambiguous way, sometimes hypocritical, to the principle of equalization between defendant and entity.

Then there is the combined reading of the paragraphs to be analysed 3 e 4 dell’art. 22, according to which "as a result of the interruption, a new limitation period begins”, who, if the interruption occurred following the dispute of the administrative offence, remains suspended until the sentence becomes final. We must add that, unlike the provisions of art. 161, comma 2 c.p. for statute of limitations, here there are no maximum thresholds for the statute of limitations for administrative offences. This leads to a difference in treatment between the natural person and the entity, to the detriment of the latter: Furthermore, beyond this profile of friction with the articles. 3, 24 comma 2 e 111 comma 2 Cost., it is the legislator himself who recognizes the risk of an excessive extension of the procedural times for ascertaining the administrative liability of the entities, stating that "the choice, indeed, she doesn't seem the happiest, given that the reference to a civil law regulation risks excessively dilating the statute of limitations of the administrative offense of the entity, even being able to favor despicable delaying practices, especially in cases in which proceedings are taken separately against the entity”.

These concerns are also endorsed by the doctrine, which, on one side, highlights the unreasonableness of a discipline that does not take into account the "close relationship of presupposition that binds the offense of the entity to the crime” e, on the other, underlines the impossibility of hypothesizing that the principle of reasonable duration of the process arises in different terms for the entity and for the natural person. On the basis of these assumptions, the question of the constitutional legitimacy of art. 22 in contrast with the articles. 3, 24 comma 2 e 111 comma 2 Cost.: however, the Supreme Court declared the matter manifestly unfounded, arguing solely on the basis of the non-criminal legal nature of the entity's liability, thanks to which "a derogatory and differentiated regime can be justified with reference to the prescription. […] The legislator has achieved a balance between the requirements of a reasonable duration of the process, especially in providing for a short statute of limitations, and warranty requirements, corresponding in this case to the value of the completeness of the judicial assessment referring to a complex case such as that relating to the administrative offense of the entity”. In doctrine it has been observed that the argument of the stoats is not convincing, as, on one side, it is undeniable that the requirements indicated by the Supreme Court also arise in the trial of the natural person e, on the other side, even considering the observation of the greater complexity of ascertaining the entity's liability as absolutely true, would be justified, at most, a differentiation in the determination of the 'ceilings' of the prescription, but certainly not the suspension for the entire duration of the trial of the statute of limitations of the administrative offence. Furthermore, if we consider the provisions of art. 8 d. lgs. cit. regarding the autonomy of the entity's liability, the unequal effect produced by the differentiation of prescription regimes is evident, given the possibility that the crime and not the administrative offense depending on it is prescribed.

Indeed, also wanting to share the clear choice of the legislator, it appears evident, from the combined reading of the articles. 8, 22, 59 e 60 of d. lgs. 231 of the 2001, another profile of inconsistency: art. 60 precludes the dispute pursuant to art. 59 in the event that the predicate offense is extinguished by prescription; on the contrary, it follows that in the event that the administrative offense was contested before the statute of limitations of the predicate offence, the latter, intervened in the proceedings, would not produce effects in favor of the institution, by virtue of the principle of autonomy of the entity's liability (art. 8). However, it is noted that the mechanism described by the letter of the art. 60 operates in partial derogation from this principle, which is why the operation of the legislator can be observed from two points of view: or from that of an unfortunate contradiction, or from that of an unequal regulatory use of the binomial 'carrot-stick', on one side, burdening the entity's liability with the characteristic of autonomy (art. 8) e, on the other, excluding its operation in the event that the statute of limitations of the crime precedes the contestation of the offence (art. 60).

Finally, a further constitutional friction profile (with the principle of reasonableness pursuant to art. 3 Cost. and with the right of defense pursuant to art. 24 Cost.) concerns the absence of a provision that explicitly allows the entity to waive the prescription, similarly to what is provided for the amnesty by art. 8, comma 3.