Criminal procedural law – Reform – Limits to the effectiveness of registration for civil and administrative purposes – Institute of extraordinary rotation – Confirmation of orientation which excludes automaticity.
The new wording of Article 335-bis of the CPP, according to which “The mere registration in the register referred to in Article 335 cannot, in itself, determine prejudicial effects of a civil or administrative nature for the person to whom the crime is attributed ”, allows us to confirm the effectiveness of the interpretation of the art. 16 of Legislative Decree no. 165 of 2001, according to which the application of the extraordinary rotation institution does not occur automatically as a direct consequence of the mere registration in the aforementioned register or with the initiation of disciplinary proceedings for corrupt conduct, but only following a careful evaluation, adequately motivated, by the Administration, of the employee’s conduct and the appropriateness of his remaining in the office or not. (1)
Criminal procedural law – Reform – Application of the sentence upon request – – Effects of the application of the sentence upon request – Limits – Non-conferrability – Exclusion – Applicability of the new provision to plea agreements which took place before the entry into force of the law – Admissibility.
In light of the clear wording of paragraph 1-bis of Article 445 of the Code of Criminal Procedure, according to which “The sentence provided for by Article 444, paragraph 2, even when pronounced after the conclusion of the hearing, has no effect and cannot be used for evidentiary purposes in civil, disciplinary, tax or administrative proceedings, including proceedings to ascertain accounting liability. If accessory penalties are not applied, the provisions of laws other than criminal laws which equate the sentence provided for by article 444, paragraph 2, to the conviction sentence. Except as provided in the first and second sentences or in different legal provisions, the sentence is equivalent to a conviction”, a provision which supervenes and follows the provisions of article 3 of Legislative Decree no. 8 April 2013. 39, all subjects for whom a plea bargaining sentence has been pronounced pursuant to art. 444 cpp, without the application of accessory penalties, no longer incur a situation of non-conferrability. The non-conferrability must be excluded for the future also for those subjects who have been the recipients of a sentence of
application of the sentence following a plea agreement without application of additional disqualifying sanctions, issued before the entry into force of the new art. 445, paragraph 1-bis of the Code of Criminal Procedure (2)
The Council of State recalled that the art. 3 of Legislative Decree no. 39 of 2013, regarding the non-transferability of positions in the event of conviction for crimes against the public administration, provides for the express equivalence between a plea bargaining sentence and a conviction sentence, clarifying that to resolve the antinomy between the aforementioned regulatory provisions, the principle of specialty, taking into account that paragraph 1-bis of art. 445 cpp, despite having a general scope in relation to its categorical scope of reference, is aimed precisely at limiting the effectiveness of all those extra-criminal, and as such special, provisions which provide for the equivalence of the plea bargaining sentence to that of conviction , such as article 3 of Legislative Decree no. 39 of 2013.
Criminal procedural law – Reform – Limits to the effectiveness of registration for civil and administrative purposes – Extraordinary measures for the management, support and monitoring of companies – Registration in the register of suspects – Sufficient requirement for the application of the measures – Exclusion – Confirmation.
Even in the supervenience of the art. 335-bis of the Code of Criminal Procedure, the interpretation according to which registration alone in the register of suspects is not sufficient to start the procedure for the application of the extraordinary management, support and monitoring measures of the companies referred to in the article remains confirmed. 32 of Legislative Decree 24 June 2014, n. 90 and, therefore, does not legitimate, in itself, the adoption of the relevant proposal. (3)
Criminal procedural law – Reform – Application of the sentence upon request – – Effects of the application of the sentence upon request – Criminal conviction decree – Effects – Limits – Extraordinary measures for management, support and monitoring of businesses – Limiting or preclusive effects – Exclusion.
The provisions of the first and second sentences of paragraph 1-bis of article 445 of the Code of Criminal Procedure, as amended by Legislative Decree no. 150 of 2022, do not explain limiting or preclusive effects regarding the application of the extraordinary measures contemplated by article 32 of Legislative Decree no. 24 June 2014. 90. Even Article 460 of the Code of Criminal Procedure, where it provides that the criminal decree of conviction “even if it has become executive, does not have the force of res judicata in civil and administrative proceedings”, does not affect the applicability of the extraordinary measures in question, resulting in this regard decisive is the fact that the law refers only to civil and administrative proceedings, while in this case we are dealing with administrative proceedings. (4)
The Council of State clarified that, according to paragraph 1-bis of Article 445 of the Code of Criminal Procedure, the ineffectiveness and unusability of the plea bargaining sentence for the purposes of proof expressly operate “in civil, disciplinary, tax or administrative proceedings, including the judgment for ascertaining accounting responsibility” and that there is, therefore, no reference to the applicability of the provision to administrative proceedings, such as those for
the application of “Extraordinary measures for the management, support and monitoring of companies in the field of corruption prevention”. Furthermore, the art. 32 of Legislative Decree 24 June 2014, n. 90 does not at all provide, among its conditions of application, for the adoption of a sentence of conviction or plea bargaining, placing as a prerequisite the measures, in the preventive perspective that characterizes it, events and elements that do not necessarily require their enactment of a sentence, but which ordinarily precede it.
(1) Compliant precedents: ANAC resolution 26 March 2019, n. 215.
Different precedents: there are no different precedents.
(2) Conforming precedents: albeit with reference to the different question of ineligibility, TAR for Campania, Salerno, 24 April 2023, n. 937. On the same question of ineligibility, the Ministry of the Interior, after consulting the Attorney General of the State, expressed its opinion with circular no. 29/2023, protocol. n. 7903 of 17 March 2023.
(3) Compliant precedents: there are no compliant precedents.
Different precedents: there are no different precedents.
(4) Compliant precedents: there are no compliant precedents.
Different precedents: there are no different precedents.
Criminal procedural LAW
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