The Italian Legislative Decree no. 231 of 8 June 2001 introduced into the Italian legal system the rule of the direct administrative responsibility of an enterprise for any crime committed to the benefit or interest of such enterprise by any person who actually represents, handles management affairs or acts as a top officer of such enterprise or of any branch thereof having its own financial and organization autonomy, as well as by any person who, also from a mere factual viewpoint, is managing or controlling said enterprise, and finally also by any other person who is acting under the control and instructions of said persons, save if such other persons have infringed the criminal law for their own exclusive benefit, or for the benefit of any other third party.
There is always a financial sanction to be paid by the enterprise in such case, whose precise amount is established taking into account its financial and patrimonial conditions, with the aim at assuring a due punishment pursuant thereto; on top of such financial sanction, though, the Criminal Court can add – depending on the kind of crime – also the exclusion of the enterprise from the bidding for Government contracts, the confiscation of the enterprise’s assets, the suspension or revocation of authorizations, licenses and/or administrative concessions required to duly carry out its commercial activity.
Pursuant to article 35 of Decree 231, the same procedural rules applicable to an indicted person shall apply to the enterprise, as long as possible according to the circumstances of the case.
Pursuant to the subsequent article 39, then, the enterprise shall be represented in the relevant criminal proceedings by its duly appointed representative officer (the “Legal Representative”), save if such person, too, is indicted for the same crime which has originated the administrative sanction applicable to the enterprise.
With regard to the above-mentioned provisions, certain mandatory rules of Italian Criminal Due Process require to assure that such Legal Representative can enjoy the same procedural warrants and protection of a physical person, pursuant to the Italian Constitution principle of the due process.
As a result, if the concerned enterprise is a foreign company, all relevant judiciary documents to be served thereupon must be translated into a language fluently known by its Legal Representative: such mandatory requirement has been recently confirmed by the Judge of Preliminary Investigations (the “GIP”) of the Criminal Court of Milan, by means of his decision dated as of 25 May 2022, relating to a Dutch company involved in a case – pursuant to Decree 231 - arising from a corruption crime.
That company’s lawyer in fact requested that the relevant proceedings be held null and invalid because the judiciary documents served upon the Legal Representative – a foreign person - of such company were not accompanied by any translation into any language known by him.
The GIP has recognized and held fully valid such lawyer’s request, holding that a foreign company must be put in the position to fully enjoy its legal rights, as provided for under Italian Law to better protect and duly defend it.
As it relates to the language to be duly selected to such aim, it must be the language which is actually known by the Legal Representative, or, according to and depending on the circumstances of the case, by the Appointed Representative of the Italian branch of the company involved pursuant to Decree 231.
The Public Prosecutors’ remarks that such enterprise could not be held to be ignorant of the Italian language, because it had been bidding for various Government contracts – inclusive of the bid from which the relevant corruption crime had originated -, and on top it was carrying out its commercial activity since long time before, have not been recognized as valid by the GIP, who has on the contrary held that such activity could be carried out by Italian employees or consultants of that company, duly instructed by its foreign Legal Representative who for such purposes did not need to have the best knowledge of the Italian language.
However, according to the GIP, when a person must examine and understand judiciary documents, such fluent knowledge of the Italian language of the documents – or of a good translation thereof - is always required.
To conclude on the foregoing, the GIP has held null and void the judiciary documents relating to the administrative sanction connected to the mentioned corruption crime, issued pursuant to Decree 231 but served upon the foreign Legal Representative exclusively in the Italian language.
The GIP has consequently returned such judiciary documents to the Public Prosecutor because held so invalid, and he has confirmed in his dictum the constitutional principle of the Due Process, to be duly applied also in the event of a foreign Legal Representative of a company involved in Criminal Court proceedings originated by a crime dealt with and covered by Legislative Decree no. 231 of 2001.
Prof. Avv. Salvatore Vitale
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