Compliance Programs and Legal Entity’s Safeguards in Criminal Proceedings

This essay deals with the legal entity’s safeguards in criminal proceedings, with special reference to its rights of defense. It is based on the assumption that, in the Italian legal system (as in other similar legal systems), liability ‘ex crimine’ of legal entities is based on the idea of a so-called ‘organizational fault’, which emerges where there is an organizational defect in the preventive model. Therefore, the topic of the entity’s ‘exposure’ to liability risk and to the prejudice of its rights of defense emerges with reference to the so-called ‘risk mapping’ in drafting the model, where the sensitive elements emerged have the natural consequence of exposing the entity to possible incriminating exceptions. The same problem of the prejudice of the entity’s rights of defense is also highlighted with reference to the institute of ‘whistleblowing’, where the need to protect the legal entity could emerge from the ‘blown’ of the whistleblower. We conclude that both the legal entity’s sensitive documents and the whistleblower report should be used to improve the preventive model, while their use as a possible instrument of prosecution in the criminal trial against the same entity should remain excluded.