Il crimine dell’«attore decisivo», i limiti della compliance e la prova «certa» della colpa di organizzazione. Riflessioni a margine della sentenza “Impregilo”

Moving from the innovative ruling on the “Impregilo” case, the paper addresses, from a criminological perspective, the misconducts committed by the «decisive actor» and the structural limits of compliance programs. The corporate criminal liability in light of a normative notion of organization’s fault is then explored. In this context, it will emerge the extreme difficulty for the judge in evaluating the criminal liability of corporations. The research then illustrates the reasons why compliance should be considered more an “art” than a “science” and explains the implications of these conclusions on the ground of Italian Legislative Decree 231 of 2001. Finally, the essay develops the theme of the attribution of the crime to the legal entity retracing the most significant steps required for the proof of organization’s fault while also regarding to the issues of the burden of proof, the rule of judgment and the role of uncertainty.