Italian Corporate Criminal Liability System and Probation

The Legislative Decree 231/2001 has been described by Italian criminal law scholarship as a true “Copernican revolution”, since, for the first time, it introduced into the Italian legal order a system of corporate criminal liability. This system imposes autonomous sanctions on a legal entity in whose context specific criminal offenses are committed by qualified individuals, reflecting the entity’s business policy (m. gambardella, 2020, p. 85). The Decree provides for pecuniary sanctions, disqualifying or interdictory sanctions, confiscation of unlawful profits, and the publication of the conviction. 

The core of the system lies in its preventive and corrective purpose. In particular, the punitive framework is aimed at involving the complex organizational structure of entities – which constitutes the source of crime-risk – in the prevention of unlawful conduct, which, especially in the context of commercial companies, is primarily motivated by the pursuit of profit. 

Given that a deficient internal organization can significantly facilitate the commission of offences by members of the entity, the main objective of the punitive system is to induce entities to organize themselves properly. When the entity has adopted and effectively implemented organizational models suitable for preventing offences, the law provides that no sanction will be applied. 

After an offence has been committed in the interest or to the advantage of the entity, the main objective of the sanctions is the incentivization of virtuous post-offense conduct. For instance, the Decree provides for a significant reduction in financial penalties and the non-application of disqualifying sanctions if, before the declaration of the opening of the trial, the legal person has fully compensated the damage, eliminated harmful or dangerous consequences, and corrected the organizational deficiencies that led to the offense. Ultimately, the entire punitive model is aimed at preventing further offences by an entity already held liable and, more importantly, at significantly reducing, ex ante, the risk that such offences may be committed.                      

In recent years, Italian substantive criminal law has witnessed the introduction of certain general legal instruments that reflect a broader rethinking of the response to crime, moving beyond the rigid crime–sanction dichotomy.

There has been a growing awareness that responding to criminal acts cannot be limited solely to the imposition of custodial or monetary penalties. As a result, alternative pathways – already well tested in certain areas of criminal law, such as juvenile justice and minor offenses under the jurisdiction of the minor court judge – have been explored. 

One of these mechanisms is the suspension of proceedings with probation. Under this provision, criminal proceedings against a natural person may be suspended while the defendant undergoes a probation program. Conditions typically include community service, compensation of victims, and participation in rehabilitative or educational activities. If the program is successfully completed, the offense is extinguished and no conviction is entered. Probation thus rewards and gives legal significance to remorse and reparatory behavior by the defendant.   

The enhancement of virtuous post-offense conduct also represents one of the guiding principles of the punitive system introduced by Legislative Decree 231/2001. This parallel raises an important question: in the absence of express coordination between the criminal code provisions applicable to natural persons and the corporate liability framework, could probation be analogically extended to corporations?

From a strictly legal perspective, significant obstacles exist, as this instrument was drafted for natural persons. Nonetheless, some scholars argue that its extension would reinforce the system of incentives for compliance and reparation already embedded in Decree 231 (m. riccardi – m. chilosi, 2017).

 It is worth noting that some courts have attempted to extend to legal entities the applicability of the suspension of proceedings with probation (Trib. Modena; Trib. Bari; Trib. Bari; Trib. Perugia). However, the Court of Cassation has repeatedly rejected this approach, relying on various legal arguments (Cass., Sez. Un., n. 14840/2023; Cass. pen., sez. IV, n. 22438/2025). 

From a reform-oriented perspective, authoritative legal scholars have argued that introducing a form of probation for corporations could be a viable response to practical challenges, particularly those concerning the assessment of compliance programs adopted ex ante delictum and the encouragement of their preventive adoption (g. fidelbo – a. m. ruggiero, 2016).

On the one hand, the legislator would need to coordinate this new ground for extinguishing corporate liability with the various incentive based mechanisms already provided in the Decree, in order to avoid disparities in treatment between entities engaging in the same remedial conduct – rewarded in one case with a mitigation of sanctions and in another with the complete extinction of liability. 

On the other hand, to preserve incentives for ex ante delictum compliance, access to probation should be reserved only for companies that had an effective, non-superficial compliance model at the time of the offense. Otherwise, companies might abandon prevention, preferring to rely on post-offense probation.

 The content of a corporate probation program could include the revision and improvement of the organizational model deemed inadequate, the implementation of traditional remedial and compensatory measures, and the pursuit of concrete initiatives aimed at offering a meaningful contribution in terms of social responsibility and compensation for the harm suffered by the community as a result of the offense (g. garuti - c. trabace, 2020, p. 6). One might also consider involving victims and relevant stakeholders in determining the appropriate remedial actions.

 From a practical standpoint, a fundamental aspect of this new mechanism would be the assessment of organizational shortcomings and the identification of the corrective measures needed to pass the probation successfully. To this end, the judge could be authorized to appoint an expert or rely on the existing tool of judicial administration, in order to identify organizational weaknesses and verify their correction (m. colacurci , 2022, p. 389).

As for subjective requirements, it may be appropriate to introduce, for legal entities as well, a "one-time-only" limit, given that, in cases of subsequent offenses, the entity may still benefit from the other forms of leniency already established under Decree 231. 

Unlike for individuals, corporate probation could be applicable even to serious crimes, since the need for organizational restructuring is most acute in such cases The only exception should concern entities that are inherently unlawful, for which undergoing a treatment program aimed at a return to legality would carry only superficial significance.             

In conclusion, a legislative intervention aimed at coordinating the Legislative Decree 231/2001 with the mechanism of suspension of proceedings with probation appears desirable, as it would reinforce the preventive and rehabilitative rationale of the Italian system of corporate criminal liability.            

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Francesco Porchia is a law graduate from Sapienza University of Rome.

This blog is based on a discussion which took place at The Corporation in Society: Corporate Law and Criminal Law Perspectives Workshop. Visit the event page to explore more conference-related blogs.

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