Note on judgments no. 17817/21, no. 17818/21 and no. 27704/21
This contribution highlights in particular three rulings of the Italian Supreme Court of Cassation, filed in July 2021, on voluntary judicial supervision following an anti-mafia prohibitory notice, concerning both purely procedural and substantive aspects.
The mechanism in question, introduced by Law no. 161/2017 into Article 34-bis(6) of Legislative Decree no. 159/2011, the so-called Anti-Mafia Code, appeared from the outset as a possible source of conflict between administrative and ordinary justice, as well as a hypothetical and problematic means of balancing two distinct interests: on the one hand the protection of public order, and on the other freedom of enterprise and the right to property.
The amendment to Article 34-bis of the Anti-Mafia Code, according to the rules literally laid down by the provision, introduced a new form of asset-related prevention measure for companies hit by an anti-mafia prohibitory notice, aimed at suspending its effects.
The company subject to the prohibitory notice was in fact given the possibility of applying to the prevention court for admission to voluntary judicial supervision, which would suspend the effects of the prohibitory measure and allow the business owner not to be completely excluded – albeit temporarily – from exercising their powers by the delegated judge and the judicial administrator.
Under voluntary judicial supervision, the delegated judge and any administrator appointed by the court would exercise far fewer supervisory powers over the company’s business.
The prerequisite for granting this “benefit” is that the mafia infiltration within the company must be merely occasional.
As might have been expected, in the first years after its entry into force the mechanism was interpreted very restrictively (perhaps for “prudential” reasons) by the ordinary courts, sometimes reaching conclusions that were illogical, if not manifestly unreasonable.
The three rulings discussed here, two of which are practically identical and lay down the same principles of law, fall within this body of case law.
On the inadmissibility of the appeal before the Court of Appeal
Let us start with judgments 17817/2021 and 17818/2021, which concern a procedural aspect of appeals against decisions rejecting applications for admission to judicial supervision under Article 34-bis of the Anti-Mafia Code. In these cases, the Bari Court of Appeal had declared inadmissible the appeals brought by companies hit by anti-mafia prohibitory notices whose applications for voluntary judicial supervision had been rejected by decree of the Court of Bari.
Specifically, without examining the merits of the matter, the Court of Appeal had merely identified atypical grounds of “inadmissibility” of the appeal, such as an alleged need to submit on appeal evidence showing the occasional nature of the facilitating link between the business and the interests of dangerous persons.
According to the Supreme Court judges, who annulled the contested judgments and referred the matters back to the Bari Court of Appeal for a fresh examination on the merits, Article 680 of the Code of Criminal Procedure fully applies to appeals concerning prevention measures; paragraph 3 of that article expressly refers to the “general provisions on appeals” in Articles 568 et seq. of the Code of Criminal Procedure.
Therefore, given that the grounds of inadmissibility of appeals are strictly exhaustive, the prevention court is absolutely prohibited from devising atypical, uncodified forms of inadmissibility (such as, in this case, the failure to submit certain evidence).
In the new proceedings on the merits, the Bari Court of Appeal will therefore have to examine the substance of the case and may not simply issue another declaration of inadmissibility outside the exhaustively listed grounds.
It is hardly necessary to add that, as the Supreme Court also reiterated in its reasoning, the submission of evidence and the indication of possible strategies for cleaning up the company by the applicant are certainly advisable for the application to succeed.
On the assessment of the conditions for the prohibitory notice – tasks and limits of the criminal court
The further ruling highlighted here, judgment 27704/2021, concerns an aspect more closely related to the merits of the case and, in particular, to the contradictory reasoning of the contested decision.
Once again, the Bari Court of Appeal rejected the appeal of a company hit by an anti-mafia prohibitory notice, ruling out tout court the existence of evidence of mafia contamination of the cooperative and holding that, in the absence of the prerequisite of occasional mafia facilitation, there would also be no basis for a prognosis as to the company’s ability to carry out adequate and suitable remediation.
The paradox identified by the Supreme Court in this ruling, which the Court of Appeal appears to have reached, lies in the fact that “the application for judicial supervision was refused not because the company was not considered capable of freeing itself from the risk of mafia interference in its management, but because there was no such risk at all” (sic!).
The Court of Cassation also specified that the prevention court is certainly not allowed to review whether the conditions underlying the anti-mafia prohibitory notice exist (i.e. evidence capable of establishing mafia influence), since these have already been established by the Prefect and, where applicable, re-examined by the administrative courts.
The prevention court’s only task is to determine whether the infiltration is serious and systemic or merely “occasional” and, in the latter case, to apply voluntary judicial supervision.
The Supreme Court judges further reiterated that “where there is hypothetically no risk of mafia infiltration at all, the private party’s application could never be rejected; otherwise, an unreasonable disparity of treatment would be introduced to the detriment of the healthiest companies, which are nonetheless hit by an anti-mafia prohibitory notice and could never benefit from voluntary judicial supervision, compared with those which, showing more evident signs of mafia infiltration, could instead benefit from the suspension of the prohibitions associated with the prohibitory measure, if such links with organised crime were considered capable of being overcome and remedied through judicial supervision”.
2021-03-11 Cassazione Penale sez. 1 – n. 17817-21
