With the sentence n. 8369 filed on February 28, 2025, the Fifth Criminal Section of the Court of Cassation addressed the delicate issue of the correct exercise of criminal action against the Entity accused of an administrative offence deriving from a crime.
Although the issue does not appear to be entirely new, it should be remembered that the Fourth Criminal Section recently expressed its opinion on the matter with sentence no. 40724/2024 and the Third Criminal Section with sentence no. 2062/2025, the ruling in question has the merit of having finally addressed the merits of the case, identifying a general legal principle capable of resolving the interpretative problems that have emerged over the last few months.
The Judges of the Fifth Section were called upon to rule on the possible abnormal aspects of the order issued by the Judge of the Court of Rimini, who declared the nullity of the decree of direct summons to trial issued against an Entity accused pursuant to Legislative Decree 231/2001.
According to the Court’s approach, criminal action against Entities must be carried out in the manner provided for by art. 59 D.Lgs. 231/2001 which, making express reference to art. 407 bis co. 1 c.p.p., does not contemplate direct citation.
It follows that, although in this specific case the underlying crime from which the administrative offence of the Entity would arise falls within the cases for which it was necessary to proceed with a direct summons to trial, with respect to the Entity alone it is still necessary to proceed with the issuing of a request for referral to trial which entails the holding of the preliminary hearing.
The Public Prosecutor of Rimini filed an appeal against the order, complaining, on the merits, of an error of judgment by the Court which failed to address the expansion of the list of crimes that give rise to the liability of the Entity, including those for which a direct summons to trial must be issued. In this context, the appellant complains, the provision of art. must be inserted. 59 D.Lgs. 231/2001 which, although originally it did not contemplate such procedural forms, will now have to admit that, in cases where it is provided for by law, even against the Entity, proceedings may be carried out with direct summons to court.
From a functional point of view, the Court’s order would therefore appear to be flawed by abnormal aspects, since it would require the Public Prosecutor to exercise criminal action by requesting a referral to trial, thus carrying out a null act.
On this point, the Judges of the Supreme Court, resorting to a systematic and literal interpretation of art. 59 D.Lgs. 231/2000, point out that in this specific case we are dealing with a typical situation of true and proper forgetfulness on the part of the Legislator and not, as claimed by the Court of Rimini, a desire to exclude the exercise of criminal action by means of direct summons for the sole offence of the Entity.
Otherwise, if we wanted to follow the interpretation of the contested order, we would determine the unreasonable consequence of derogating from the general principle of the unitary treatment of the determination of the criminal liability of the accused and of the administrative liability of the Entity, in clear violation of the provision contained in art. 38 D.Lgs. 231/2001 according to which, as a rule, the two proceedings must be joined, following different paths only in exceptional cases.
Moreover, the orientation referred to in the order of the Court would also conflict with art. 36 D.Lgs. 231/2001 which, after having attributed to the Judge of the crime the competence to decide on the administrative offence, states that the two offences must be treated by the Court in the same composition observing “the related procedural provisions relating to the crimes on which the administrative offence depends” meaning, that is, that the contestation of the administrative offence must follow the procedure foreseen for the crime.
It must also be noted that, given the introduction of the pre-trial hearing in the direct citation procedure, which contemplates the possibility of a decision of no case to answer, imposing the establishment of two distinct procedural paths for the determination of the responsibilities of the natural person and the Entity would appear – even more so – to be an evident distortion of the system.
Finally, the Court observes, it cannot be ignored that between the ascertainment of the underlying crime and that of the administrative offence there is a relationship of substantial prejudiciality which requires, as mentioned, the holding of a single trial before the same Judge, thus avoiding any conflicts of judgments.
Tutte le argomentazioni sopra esposte, conclude il Collegio, consentono di superare il dato letterale dell’art. 59 D.Lgs. 231/2001.
The order issued by the Judge of the Court of Rimini, which effectively obliges the Public Prosecutor to exercise criminal action by formulating the request for referral to trial, appears likely to determine a real standstill of the proceedings, imposing on the Public Prosecutor the performance of a null act.
