A Negotiated Justice

A Negotiated Justice

  • Filippo Ferri

As in other countries around the world, Italy is also calling for the introduction of a case for non-punishment or dismissal of criminal prosecution for those companies that cooperate with the Public Prosecutor's office. In recent years, at an international level, there has been a gradual increase in forms of "negotiated" criminal justice.

This expression usually refers to the introduction, within the legal system of a given country, of procedural instruments that result in the halting or settlement of a criminal proceeding, if and to the extent that the public authority reaches an agreement, of more or less complex content, with the private party involved in the proceeding itself. This is a real and present "privatisation" or "contractualisation" of criminal justice. Within this perspective, the United States acts as a forerunner, having long since introduced and implemented specific agreements between the Department of Justice and companies under investigation. 

These are the non-prosecution agreements (Npa) or deferred prosecution agreements (Dpa); real "contracts" between public authorities and private companies, under which the former waives or suspends prosecution of the investigated company in exchange for the latter's commitment to implement a whole series of "remedial" initiatives with respect to the facts under investigation. The result, in any case, is always the avoidance of criminal judicial consequences, with all the costs, risks and damage, including reputational, that this can entail.

Currently in Italy nothing of the sort exists. Institutes such as those we have just mentioned (Npa and Dpa) are typical expressions of legal systems that are hinged on the principle of the public prosecutor having discretion in exercising criminal proceedings. Systems, in other words, within which the prosecution has the power (indeed, the duty) to make criminal policy assessments in deciding whether or not to bring proceedings regarding certain offences.
Italy, on the contrary, has always been a paradigmatic example of a system hinged on the principle of mandatory prosecution, considered by many to be an absolute barrier to "negotiated" instruments of justice. This latter principle being carved out in Art. 112 of the Constitution and considered, at the same time, as an expression and guarantee of other cornerstone principles of our fundamental charter, such as the principles of legality, equality and independence of the judiciary.

Is it then impossible for institutions similar to those originating in the American arena to also make their way into the Italian system? Maybe not. And the issue affects not so much natural persons as legal ones. The "criminal" liability of corporations is governed by Legislative Decree 231/2001, within which there may be room to reform our legal system. There are many reasons for this. Firstly, there is no doubt that corporate liability under "Decree 231" is by no means superimposable on the "real" criminal liability of natural individuals. In this sense, the Italian Court of Cassation [Supreme Court] has repeatedly stated that this is an actual tertium genus, [third type] which combines traits of both criminal and administrative liability. We are therefore in the realms of a different liability to that which is historically referred to in Art. 112 of the Constitution. Again, the Public Prosecutor's choice to dismiss proceedings is beyond any judicial review.

Thus, the Public Prosecutor’s choice not to proceed is removed from the scrutiny of a third-party judge. Here then, in our view, lies the loophole; a constitutionally legitimate space within which an attempt may be made to insert the first instrument for negotiated criminal justice. That which, as much in doctrine, but also in the judiciary, is starting to be persistently requested of the legislature: the introduction of an actual reason for non-punishability; namely, a specific hypothesis for dismissal of proceedings, for companies that actively cooperate with the Public Prosecutor's office and take remedial action, along the lines of what is already happening in more and more countries (the United Kingdom and France, for example). It would be a groundbreaking revolution.

Article published in "Forbes" magazine, January 2023

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