The maintenance offenses established in Article 5 of Law 283/1962 are given a posthumous shot in the arm by the resigning Draghi government. A de facto decriminalization, not without uncertainties regarding its constitutional legitimacy as well.
To the new Parliament and government, as to their predecessors, there is therefore a renewed need for an organic reform of the sanction discipline of offenses pertaining to food safety. Also with a view to the better protection of Made in Italy.
1) Food crimes, law 283/1962
Law 30.4.62 no. 283Article 5 introduced in Italy a series of food crimes of a contraventional nature, characterized as follows:
– the material facts of the crimes (i.e., the punished conducts), precisely described, express hygienic and safety deficiencies of processes (of storage, handling and processing, distribution and administration) and products,
– the psychological element may consist, indifferently, of malice (consciousness and will of the facts and acts that integrate the punished conduct) or guilt (negligence, recklessness and inexperience, to be evaluated with regard to the best applicable science and experience).
2) Decriminalization, the previous attempt
The government led by Mario Draghi had already attempted to repeal the measures and sanctions under Law 283/1962, as noted, through Legislative Decree. 27/21. (1) Where, in adapting the Italian regulation of official controls on the agri-food chain from Reg. EU 2017/625 – a clean slate of the offenses mentioned in the previous paragraph was assumed.
However, the previous attempt at decriminalization was met with spirited opposition from jurists and magistrates involved in food safety protection, including this writer. Who challenged the excess of delegated power and unconstitutionality of Leg. 27/21, in fact later reformed in that part by DL 19.3.22 and subsequent Law 71/2021 (2,3,4).
3) Criminal trial reform, the enabling act
Law 27.9.21, no. 134, ‘Delegating to the government authority for the efficiency of the criminal justice process, as well as in the area of restorative justice and provisions for the speedy settlement of judicial proceedings’, delegated the government ‘To adopt, within one year from the date of entry into force of this law, one or more legislative decrees to amend the Code of Criminal Procedure, the implementing rules of the Code of Criminal Procedure, the Criminal Code and related special legislation‘ (Art. 1.1).
The delegation is extended to reform ‘Of the provisions of the judicial order on organizational projects of the public prosecutor’s office, for the revision of the punitive regime of crimes and for the introduction of an organic discipline of restorative justice and an organic discipline of the criminal trial office, with the purpose of simplification, expeditiousness and rationalization of the criminal trial, respecting the defensive guarantees and in accordance with the principles and guiding criteria provided by this article‘. (5)
4) Legislative Decree. 10.10.22 n. 150. The so-called ‘Cartabia reform‘
Legislative Decree. 10.10.22 n. 150 – so-called ‘Cartabia reform‘, effective 1.1.22 – reads “Implementation of the Law of September 27, 2021, no. 134, delegating authority to the government for the efficiency of the criminal process, as well as in the area of restorative justice and provisions for the speedy settlement of judicial proceedings“. (6)
The explanatory report signed by former minister Prof. Marta Cartabia, well expresses (in 421 pages) the complexity of the reform. (7) Following is a brief summary of the structure of Legislative Decree 150/2022, which consists of 99 articles.
4.1) Criminal trial reform (Part I)
Digitization of records (e.g. telematic process, digital domicile and notifications, remote hearings, etc.). Preliminary Investigation and Preliminary Hearing (with new remedies to procedural stasis, new deadlines for civil plaintiffs, trial in absentia, new ‘filter’ hearing in monocratic judge, etc.). Extension of alternative rites (e.g., criminal decree of conviction, plea bargaining of alternative sentences).
4.2) Reform of the criminal penalty system (Part II)
Penalties in lieu of short prison sentences and monetary penalties (new methods of execution). Suspension of proceedings with probation of the defendant. Prosecution on complaint (extension of related offenses). Exclusion of punishability for particular tenuousness of the act. ‘Extinction of contraventions by compliance with prescriptions issued by the determining body‘ (Chapter 6).
4.3) Restorative Justice (Part III)
Restorative justice is a new institution to Italian criminal law, the foundations of which are still based on the so-called Rocco Code (Italian Criminal Code, 1930). Thus, an organic discipline is introduced, including the establishment of special centers and the figure of experienced mediators.
This procedure complements the criminal trial and execution and also intervenes on the prison system and juvenile justice. Without neglecting, however, the duties of assistance, protection and rights of victims of crime, as prescribed to member states in EU Directive 2012/29.
5) Cartabia Reform and Law 283/1962. Introduction
‘The regulatory intervention‘ of the Cartabia reform, as the introductory report states, ‘on the procedural front aspires to reduce the number of proceedings that reach trial and at the same time to lighten the workload of prosecutors’ offices, thanks to the synergistic contribution of the determining bodies (administrative supervisory authority/judicial police).’
The existence ‘of administrative supervisory authorities and police or Carabinieri corps (such as the Anti Sofistication and Sanitation Units – N.A.S.) specialized in the detection of crimes’ food ‘is a prerequisite for the success of the administrative procedure that leads to prescribing restorative/remedial conduct in order to extinguish the crime‘. (8)
5.1) Extinction of maintenance offenses by compliance with prescriptions
‘On these premises‘ – that is, the mere existence of supervisors and law enforcement agencies – ‘have been identified as the areas of discipline those of the contraventions on hygiene, production, traceability and sale of food and beverages, provided for in Law No. April 30, 1962. 283 and other provisions having the force of law‘.
‘The offenses to which the extinguishing cause applies are only those susceptible to the elision of harm or danger by restorative or compensatory conduct.’
The judicial police authority-because it has the powers set forth in Article 55 of the Code of Criminal Procedure, thus apart from the powers granted by Leg. 27/2021 (1) and the training and auditing requirements set forth in reg. EU 2017/625 (9) – is thus vested with a ‘prescriptive power’ whose fulfillment is followed by the extinction of only those offenses referred to in Article 5 of Law 283/1962.
5.2) De facto decriminalization
The ‘de facto’ decriminalization is achieved through a new cause of extinction of the offense, which has already been tried and tested in workplace safety and environmental offenses. With some peculiarities:
(a) the extinction of the crime does not operate when the crimes under consideration (ex Art. 5, Law 283/62), concur with other crimes (10,11),
(b) misdemeanors punishable by a joint penalty of arrest and fine may also be extinguished,
(c) there is the possibility of doing community service work as an alternative to paying a sum of money,
(d) the possibility of mitigation of punishment is introduced in the case of late compliance, as such not useful for the purpose of extinguishing the crime.
6) The new provisions
Legislative Decree 150/2022 introduces a number of addenda to Article 12 of Law 283/1962.
6.1) ‘Extinguishment of contraventions for compliance with requirements issued by the determining body‘
‘1. Unless they are concurrent with one or more crimes, to the contraventions provided for in this Law and other provisions having the force of law, regarding hygiene, production, traceability and sale of food and beverages, which have caused An injury or hazard susceptible to elision by restorative or compensatory conduct and for which the punishment of a fine only, or the punishment of a fine, alternatively or jointly with a punishment of arrest, the provisions of this Article and Articles 12-quarter, 12-quinquies, 12-sexies, 12-septies, 12-ocities and 12-ninth shall apply.
2. In order to enable the contravention to be extinguished and to elide its harmful or dangerous consequences, the determining body, in the exercise of the judicial police functions referred to in Article 55 of the Code of Criminal Procedure, or the judicial police shall impart to the offender a’appropriate prescription, setting a deadline for regularization not exceeding the period of time technically necessary and in any case not exceeding six months. In the presence of specific and documented circumstances not attributable to the offender, which result in a delay in regularization, the time limit may be extended once, at the request of the offender, for a period not exceeding an additional six months, by reasoned order which shall be immediately communicated to the public prosecutor.
3. A copy of the prescription shall also be served on the legal representative of the entity within the scope or service of which the violator works.
4. With the prescription, the determining body may impose, also with reference to the production, organizational, commercial or otherwise work context, specific measures aimed at putting an end to dangerous situations or the continuation of activities potentially dangerous to safety, food hygiene and public health.
5. In any case, the obligation of the determining body to report to the prosecutor’s office the notice of the offense related to the contravention, pursuant to Article 347 of the Code of Criminal Procedure, and to forward the report in which the prescriptions were issued, shall remain intact.
6. The prosecutor, when he deems it necessary, may order by decree that the body that issued the prescriptions make changes to them‘ (Article 12-ter).
6.2) ‘Verification of Compliance and Admission to Payment in Administration‘
‘1. Within thirty days after the expiration of the prescribed period, the body that issued the prescriptions shall verify whether the violation has been eliminated in the manner and within the period specified in the prescription.
2. When the prescription is fulfilled, the assessing body shall admit the offender to pay administratively, within thirty days, a sum equal to one-sixth of the maximum fine established for the offense committed, for the purpose of extinguishing the offense, destined to the State budget.
3. No later than sixty days after the expiration of the time limit set for payment, the determining body shall notify the prosecutor of the fulfillment of the statute of limitations as well as the payment of the sum of money.
4. When the statute of limitations is not fulfilled, or the sum of money has not been paid, the determining body shall notify the prosecutor and the offender no later than sixty days after the expiration of the time limit set in the same statute of limitations‘ (Article 12-quater).
6.3) ‘Provision of public benefit work as an alternative to payment in administration‘
‘Within the period stipulated in the second paragraph of the preceding article, the offender who, due to his or her economic and property conditions, is unable to provide for the payment of the sum of money, may apply to the public prosecutor, personally or through a special prosecutor, to alternatively perform public benefit work with the State, Regions, Metropolitan Cities, Provinces, Municipalities or with social welfare and voluntary bodies or organizations‘. (…) (Art. 12-quinquies).
6.4) ‘Reports of crime not received by the determining body‘
‘1. If the prosecutor takes notice of a contravention on his own initiative, or receives it from private individuals or public officials or public service officers other than the determining body and the judicial police, he shall notify the determining body or the judicial police so that they can carry out the steps referred to in Articles 12-ter and 12-quater.
2. In the case provided for in the first paragraph, the determining body or the judicial police shall inform the public prosecutor of their activities without delay and, in any case, not later than sixty days from the date on which they received notice of the crime from the public prosecutor’ (Art. 12-sexies).
6.5) ‘Suspension of criminal proceedings‘
‘Proceedings for the contravention shall be suspended from the time of the entry of the notice of offense in the register referred to in Article 335 of the Code of Criminal Procedure until the time when the prosecutor receives notice’ about compliance with the statute of limitations and payment of the sum of money. (…). (Art. 12-septies).
7) Temporary confusions
Reg. EU 2017/625 (Official Controls Regulation, OCR) already stipulates that the competent authority (and not any law enforcement agency) can issue prescriptions to operators if it finds sanctionable noncompliances (Art. 138). (4)
‘Sanctionable violations are definedasformal errors and omissions that involve a mere regularization operation, or violations whose harmful or dangerous consequences are eliminable.’ (12)
The complexity of the changes introduced by the Cartabia reform to Law 283/62-which are completely divorced from the aforementioned OCR, which has supra-constitutional rank in the hierarchy of sources of law-risks thwarting the punitive function of its Article 5.
8) What to do.
Food law is based on European regulations that have updated the responsibilities and requirements for operators in the supply chain, as well as the requirements and procedures to be followed in official controls. As well as the concepts of food safety hazard and risk, in a meaning so broad as to include animal welfare and plant health. (9) And it is on this basis that sanctions need to be reorganized, unlike what was theorized in the Caselli reform hypothesis (13,14).
The Italian parliament and government, under delegated authority, must now work on the organic revision of the discipline to be applied to a key supply chain for the Italian economy, without neglecting its contiguous sectors (e.g., the National Action Plan on Pesticides, Animal Health and Welfare, and Food Contact Materials and Objects). Applying consistent and effective penalties, for the best guarantee of Made in Italy and the protection of citizens.
Dario Dongo and Andrea Sodero
Notes
(1) Dario Dongo, Amaranta Traversa, Sarah Lanzilli, Claudio Biglia. Official controls, d .lgs. 27/21. Implementation of EU reg. 2017/625. GIFT (Great Italian Food Trade). 14.3.21
(2) Dario Dongo. Legislative Decree. 27/21 and repeal of Law 283/1962, question of constitutionality. GIFT (Great Italian Food Trade). 17.3.21
(3) Dario Dongo. Food crimes, Draghi government saves Law 283/1962. #CleanSpades. GIFT (Great Italian Food Trade). 20.3.21
(4) Dario Dongo, Andrea Sodero. Official checks. Law 71/2021, converting LD 42/2021, and warning of operators. GIFT (Great Italian Food Trade). 22.5.21
(5) Law 27.9.21 no. 134. Delegation of power to the government for the efficiency of the criminal justice process as well as in the area of restorative justice and provisions for the speedy settlement of court proceedings. https://www.normattiva.it/uri-res/N2Ls?urn:nir:stato:legge:2021-09-27;134~art1 (21G00146)
(6) Legislative Decree. 10.10.22 n. 150. Implementation of Law no. 27.9.21, no. 134, delegating authority to the government for the efficiency of the criminal justice process, as well as in the area of restorative justice and provisions for the speedy settlement of judicial proceedings. https://www.normattiva.it/uri-res/N2Ls?urn:nir:stato:decreto.legislativo:2022;150 (22G00159)
(7) Explanatory report to Legislative Decree Oct. 10, 2022, no. 150 https://www.gazzettaufficiale.it/do/atto/serie_generale/caricaPdf?cdimg=22A0601800000010110001&dgu=2022-10-19&art.dataPubblicazioneGazzetta=2022-10-19&art.codiceRedazionale=22A06018&art.num=1&art.tiposerie=SG
(8) See explanatory report referred to in note 7, Chapter 6, Foreword (pages 519,520)
(9) Dario Dongo, Giulia Torre. Official public controls, EU Regulation 2017/625 kicks off. GIFT (Great Italian Food Trade). 18.12.19
(10) E.g., crimes against public health (Criminal Code, Articles 439 et seq.), crimes of fraud (Articles 515 et seq.)
(11) Dario Dongo. Fraud in trade and food labels, the atypical cases. FARE (Food and Agriculture Requirements). 26.1.16
(12) Law 71/2021, Article 1-ter. Amendments to Article 1 of Decree Law June 24, 2014, no. 91, concerning the institution of warning in the agribusiness sector
(13) Dario Dongo. Agribusiness crimes, outline of bill 20.2.20. GIFT (Great Italian Food Trade). 27.2.20
(14) Dario Dongo, Camilla Fincardi. Draft law on agribusiness crimes, crimes against public health. GIFT (Great Italian Food Trade). 6.3.20