Some recent events (the DeLugi's film, the document of M5S on medical company relationships, L'elections in Assogenerici of a Vice President of a company who in the face of unlawful acts unloaded the blame on the ISF), led us to return to the theme of the liability of the ISF if it commits offences.
For information, we report the law:
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LEGISLATIVE DECREE 8 June 2001, n. 231
Article 5
Responsibility of the entity
1. The entity is liable for crimes committed in its interest or to its advantage:
a) by persons who hold representation, administration or management functions of the entity or of one of its organizational units with financial and functional autonomy as well as by persons who exercise, even de facto, the management and control of the same;
b) by persons subject to the management or supervision of one of the persons referred to in letter a).
2. The entity is not liable if the persons indicated in paragraph 1 have acted in their own exclusive interest or that of third parties.
Article 6
Persons in top positions and organization models of the entity
1. If the offense was committed by the persons indicated in article 5, paragraph 1, letter a), the entity is not liable if it proves that:
a) the management body has adopted and effectively implemented, before the crime was committed, organizational and management models suitable for preventing crimes of the type that occurred;
b) the task of supervising the functioning and observance of the models and taking care of them
updating has been entrusted to a body of the entity with independent powers of initiative and control;
c) the persons committed the crime by fraudulently eluding the organization and management models;
d) there has been no omission or insufficient supervision by the body referred to in letter b).
2. In relation to the extension of the delegated powers and the risk of committing the offences, the models referred to in letter a), of paragraph 1, must meet the following requirements:
a) identify the activities in which crimes may be committed;
b) envisage specific protocols aimed at planning the formation and implementation of the entity's decisions in relation to the crimes to be prevented;
c) identify ways of managing financial resources suitable for preventing the commission of crimes;
d) establish information obligations towards the body responsible for supervising the
operation and observance of models;
e) introduce a disciplinary system suitable for sanctioning failure to comply with the measures indicated in the model.
3. The organization and management models can be adopted, guaranteeing the requirements referred to in paragraph 2, on the basis of codes of conduct drawn up by the associations representing the entities, communicated to the Ministry of Justice which, in agreement with the competent Ministries, can formulate, within thirty days, observations on the suitability of the models to prevent crimes.
4. In small entities, the tasks indicated in letter b), of paragraph 1, may be performed directly by the executive body.
4-bis. In joint stock companies, the board of statutory auditors, the supervisory board and the management control committee may perform the functions of the supervisory body referred to in paragraph 1, letter b) (1).
5. In any case, the confiscation of the profit that the entity has derived from the crime is ordered, also in the form of an equivalent.
(1) Paragraph inserted by article 14, paragraph 12, of Law 12 November 2011, n. 183, starting from 1 January 2012, ai
pursuant to article 36, paragraph 1, of the same Law 183/2011
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I knowCompanies usually make informants sign acknowledgment of the laws in force on corruption. In this way, whatever illegal thing happens, even on the orders of the Area Manager or some other senior figure, the responsibility falls solely and exclusively on the ISF. In fact, the signature on that document demonstrates that the company has informed the ISF about the provisions of the law, that the company has adopted a "policy" and therefore, even if he has "obeyed" superior verbal provisions, the The company is not responsible for it, unless there is a written document demonstrating the instigation to commit a crime.
In cases of "instigation" to commit an offence, the ISF should denounce the superior for the crime it would like him to commit. In the absence of a Register or some other form of protection, it is easy to say, but it is intuitive to understand why it will not be done.
To complete the topic, we also report an article in "Le Scienze" (Scientific American) on the psychological aspects of responsibility when an order is obeyed:
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Obeying an order makes you feel less responsible
When someone gives an order, those who carry it out feel a diminished sense of responsibility for their actions and their consequences. It is the result of research that has taken up and deepened the studies on conformity conducted in the sixties by Stanley Milgram, demonstrating that obedience reduces the activity of the brain areas that evaluate the effects of the actions performed.
If an order or a strong request to perform an action is received, the subjective perception of responsibility for the consequences of that act is greatly weakened. Not only that: the activity of the brain areas responsible for processing the results of the action is also reduced.
The discovery is made by a group of neuroscientists and psychologists from University College London and the Université libre de Bruxelles, who publish on “Current Biology” the results of a research that took up and deepened the studies on conformism and the sense of obedience conducted in the 1960s by the psychologist Stanley Milgram at Harvard University.
Milgram's subjects were asked to give a person an electric shock of increasing intensity each time they made a mistake in a learning test (the "victim" was actually an actor pretending to receive the shock). Milgram discovered that under the pressure of the experimenter's authority as many as 65 percent of the participants continued to administer the shocks up to very high intensities, when the actor seemed in the throes of excruciating pain. (Here the original footage of Milgram's experiment)
Milgram had concluded that there is a natural tendency to conform to the roles and rules imposed by authority. However, he had not investigated the subjective experience of those who administered the shock, attributing the justification given for their actions ("I only obeyed orders") to a hypocritical attempt to lighten their responsibility and avoid penalties.
In the new study, Patrick Hoggart and colleagues have pointed to this subjective side by designing an experiment that marries Milgram's experiment with a standard technique for measuring a person's involvement in an event they provoke.
In this technique, the subject is asked to evaluate the time elapsed between the action performed and the consequent event: the greater the estimate of the elapsed time provided by the subject, the less his subjective perception of a direct causal link between action and outcome is his perception of responsibility for what happened.
In Haggard et al.'s experiment, this perceived (but not actual) latency time was found to increase significantly when the shock button press was performed at the command of the experimenter compared to when it was intentionally pressed to gain an advantage. .
According to the researchers, this indicates that the subject perceives a reduction in his own responsibility when he presses the button on command, a conclusion also confirmed by the fact that brain activity is lower and slower in the areas that are responsible for evaluating the effects of a action.
All of this, Haggard and colleagues underline, does not in the least imply that having carried out an order can be a mitigating factor with respect to one's responsibilities, i.e. that the so-called "Nuremberg defense" is valid (many defendants for crimes against humanity at the Nuremberg defended themselves by asserting that they had obeyed orders).
However, states should undertake, on the one hand, to promote the development of a sense of responsibility and the ability to control one's own actions at an educational level and, on the other, to enact laws that allow for more severe penalties for those who have the power to issue orders and directives, so as to dissuade possible abuses.
February 19, 2016 – The Sciences
Related news: Criminal liability of Healthcare companies: not just a matter of 'Models'
