The Italian Supreme Court's decision no. 30604 by the Sixth Criminal Section has provided significant clarity on the application of corporate liability under Decree 231, particularly concerning the inclusion of confiscation in plea bargaining agreements.
The Court has unequivocally stated that confiscation, as outlined in Decree 231, is a principal sanction and must be included in any plea agreement involving corporate entities.

The Court's ruling differentiates the nature of confiscation under Decree 231 from that under the Penal Code, recognizing it as an autonomous and principal sanction.
This distinction is crucial as it underscores the mandatory nature of confiscation in the context of corporate liability.

The jurisprudence has evolved to support this view, acknowledging the independent status of confiscation among the sanctions applicable to corporate entities.
However, the necessity of including confiscation in plea agreements has been a subject of debate, with three main interpretations emerging.

The most restrictive interpretation argues that confiscation cannot be part of a plea agreement, as only pecuniary and interdictive sanctions can be negotiated.
This view holds that confiscation should only accompany a conviction, which a plea agreement does not equate to.

Conversely, another interpretation emphasizes the mandatory nature of confiscation and equates a plea agreement to a conviction, thereby necessitating the inclusion of confiscation in the agreement.
This perspective argues that the determination of confiscation should be left to the judge, as it is a non-negotiable component.

An intermediate position considers confiscation a principal sanction that must be included in the plea agreement, binding the judge to this inclusion.
However, the judge retains the authority to reject the agreement if the sanction is deemed inappropriate.

The Supreme Court has endorsed the view that all types of sanctions applicable to the offense in question must be included in the plea agreement.
The Court found no legal basis to exclude confiscation from such agreements.
The ruling also aligns with recent reforms in the Code of Criminal Procedure, which allow for the negotiation of optional confiscation or its determination concerning specific assets or amounts.

In cases where confiscation is mandatory under Decree 231, the parties cannot exclude it from the agreement unless the offense did not generate any profit for the entity.
The quantification of the confiscation, whether direct or equivalent, must always be part of the agreement.
The judge is responsible for ensuring that the agreement covers the full spectrum of sanctions, including confiscation, and must reject any agreement that erroneously excludes confiscation or inadequately quantifies the amount.

The Court's decision reinforces that the mandatory nature of confiscation does not preclude its negotiability within the framework of a plea agreement, provided it is subject to judicial review.

Critical Aspects and Potential Issues:

• The mandatory inclusion of confiscation in plea agreements may complicate negotiations.

• Judges must carefully assess the appropriateness of the agreed sanctions, including confiscation.

• The ruling may lead to increased scrutiny of plea agreements involving corporate entities.

Common Pitfalls and Errors:

• Misinterpreting the mandatory nature of confiscation as non-negotiable.

• Failing to adequately quantify the confiscation amount in the agreement.

• Incorrectly excluding confiscation based on an erroneous assessment of profit generation.

Suggestions and Useful Indications:

• Ensure thorough understanding and application of Decree 231's provisions on confiscation.

• Clearly outline the quantification of confiscation in plea agreements.

• Judges should rigorously review plea agreements to ensure compliance with the mandatory inclusion of confiscation.