The Trifling Criminal Offence does not apply to juridical entities
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For the first time the Italian Supreme Court (sentence n. 9072/2017, filed on 28.02.18), states that the non-punishment causes of a trifling fact (article 131bis of the Italian Criminal Code), which is applicable to individuals , cannot be also applicable to juridical entities under a preliminary felony charge.
In particular, article 131-bis of the Italian Criminal Code provides that in offenses for which a custodial sentence is not exceeding five years, the punishment is excluded when the offense is trifling. In a particular case in which the Court of Grosseto had declared that individuals were not punishable by the crime of unauthorized waste management, the same Court had also decreed the exclusion from liability of the company for administrative offense.
In the presence of a non-punishable judgment due to the trifling criminal offence against the natural person who committed the crime, the judge must therefore proceed independently to ascertain the responsibility of the company in whose interest and advantage the conduct was held.
The theme of the extension or not of non-punishment pursuant to art. 131 bis of the Criminal Code. the administrative responsibility of the juridical entities (Legislative Decree 231/01) in the case of offenses falling within the preliminary felonies has been the subject of a doctrinal debate that has been expressed in two opposing theses. On the one hand, it is believed that the filing for the cause of non-punishment concerning the individuals undoubtedly can be extended to the juridical entities. On the other hand the analysis of the Government Report to the L. D. 231/01 denies this extension by stating that the cause of extinction of the penalty, equal to the possible causes of non-punishment, do not react in any way on the configuration of responsibility for the entity, thus not excluding the existence of a crime.
The aforementioned statute clearly shows that, in the absence of an express provision of law, the application of art. 131-bis of the Italian Criminal Code, against the natural person responsible for the commission of the offense, does not automatically exclude the responsibility of the company, as it must be established in concrete the existence of the responsibility of the company itself.
It seems appropriate to clarify that the present decision seems to respond to the general principle according to which the legal person constitutes a different entity and autonomous from the natural persons who constitute it, principle summarized in the following juridical norm deriving from Latin: “Quid universitas debet, singuli non debent; quid universitati debetur, singulis non debetur”.
Finally, it should be noted that, in any case, the declaration of non-punishability obtained by the natural person could be recognized as an attenuating circumstance of the pecuniary sanction pursuant to art. 12 of Legislative Decree 231/2001.
Our Professionals are available to provide further clarifications on the topic.