Reform 231: the burden of proof lies with the public prosecutor

No reversal of the burden of proof in favour of businesses. The green light has also been given for the offence to be deemed extinguished for an organisation that rectifies organisational shortcomings. However, there are concerns regarding the criteria for assessing the suitability of the organisational model, the obligation to register immediately and the limitation period. The Criminal Chambers have produced one of the first analyses of the draft reform bill of Decree 231, approved in early August by the Council of Ministers and now under consideration by Parliament.

Firstly, the document issued by the Criminal Chambers emphasises that, under the reform, organisational culpability is elevated to a constituent element of the offence, thereby overcoming the distinction between offences committed by senior managers and those by subordinates as regards the evidential regime for defences, and definitively abandoning, even formally, the mechanism of reversing the burden of proof. This solution is, moreover, in line with the case law of the Court of Cassation, as set out in the 2014 ThyssenKrupp ruling of the Joint Divisions, which had placed the burden of proof regarding organisational culpability on the prosecution, imposing on the organisation a mere burden of allegation, in accordance with Judgment No. 23401 of 2022 (Impregilo bis), which denied the existence of a reversal of the burden of proof.

Also convincing is the new procedure for extinguishing the offence for organisations that remedy organisational shortcomings – a procedure that has also been extended to environmental and tax matters – and the strengthening of the organisation’s procedural status. Criminal lawyers also welcome the obligation on the public prosecutor to specifically allege the organisational shortcomings, the judicialisation of the decision to dismiss a case, which removes the anomaly of unilateral dismissal by the prosecution, and the requirement that preventive seizure be based on serious indications of liability.

However, the assessment of the suitability of the organisational model is not ‘subject to an explicit requirement for ex ante assessment, based on the information available at the time of the conduct: without this safeguard, retrospective judgement will continue to govern proceedings, particularly in cases of negligent offences’.

Furthermore, the requirement for the offence to be recorded immediately is not convincing, given its extra-judicial implications, particularly within the system of public contracts. The statute of limitations regime for the offence – which effectively renders the organisation liable to prosecution without any time limit following the laying of charges, thereby creating a conflict with the rules governing the determination of liability for the perpetrator of the predicate offence – remains outside the scope of the reform, contradicting the stated intention to align Decree 231 with the model of criminal liability. Finally, the revision of predicate offences should not be entrusted to a delegated power with an uncertain future.