The Administrative Liability of Entities
Decree 231 of 2001 has introduced the direct liability of legal entities for specific offences (corruption, money laundering, bribery, fraud, etc.) providing for a special form of liability, which is administrative in nature but to be ascertained by a penal judge and according to criminal law procedures …
UN Guiding Principles 25 (effective remedy) and 26 (domestic judicial mechanisms)
The Italian legal system ensures access to effective remedies to protect against human rights violations occurred within its territory: art. 24 and art.111 of the Italian Constitution guarantee the right to be heard in Court and take judicial action for the protection of his/her own rights and legitimate interests, and right to a fair trial.
As far human rights abuses by business, the Italian government must indeed guarantee that victims of human rights abuses by business may exercise their right to effective remedy. The right to an effective remedy is a human right, which has to be guaranteed by a competent, independent, and impartial authority established by law.
With regard to Criminal Law, the Italian legal system generally applies the principle of territoriality as a limit of the efficacy in space of Italian law; however, this principle is subject to exception with regard to the criminal conducts or offences against universal human values such as genocide, slavery, terrorism, etc. In particular, article 7 of the Italian penal code provides for a universal definition stating that for specific offenses the Italian penal law may apply even if the crime is totally committed abroad (outside national boundaries) both by nationals and foreigners. This article, in particular is recalled also with regard the law 231 on the administrative responsibility of entities: art. 4 of law 231 states that in cases falling under art. 7 of criminal code, the enterprise having its headquarter in the state territory is held accountable also in relation to crimes committed abroad, if the state where the offense occurred did not yet proceed against it.
In order to facilitate awareness of the available remedies, improve the efficiency of the judicial system, and better guarantee the right of access to judicial remedy, Italy undertakes to:
- Within the framework of the monitoring mechanism set in the Plan (see par. V) give special attention to the following priorities:
- Conduct a review of the legal mechanisms and develop a practical and comprehensive toolkit of the remedies available in domestic law;
- Identify eventual gaps and/or existing barriers jeopardising access to judicial remedy for victims of business-related human rights abuses especially with regard to extraterritorial violations also basing on the relation between parent company and subsidiary;
- Evaluate the introduction of relevant additional legislative measures to strengthen access to effective remedy both in civil, criminal and administrative law;
- Within the framework of the on-going parliamentary activity of reform of judicial system, raise the awareness on the following priorities:
- remedies against the excessive length of civil proceedings;
- measures to strengthen special courts for enterprises by extending their competence to consumer protection-related claims, misleading advertising and unfair competition;
- special court sections for human rights (especially children rights) and family issues;
- introduction of criminal provisions against economic crimes, also committed abroad;
- verification of the possibility of introduction of the class action.
- Activate, with the assistance of the CIDU, and also through the collaboration with the Ordine Forense, training courses for judges and lawyers on the legal implications of business and human rights;
- Keep adequate level of funding for legal aid and guarantee its access also to non-national and non-resident claimants, in particular irregular migrants victims of crimes perpetrated by organised criminal network, such as trafficking and smuggling and allow them to denounce crimes irrespectively of their status.
Guiding Principles 28, 30, and 31
Italy recognizes that judicial state-based mechanisms are at the core of the State’s ability to guarantee the full access to effective remedy against human rights abuses…