The matter of legal persons’ criminal liability – if it has always constituted a significant test bed for the general theory of law by virtue of the reluctance to shift the center of gravity of the charge from the single perpetrator of a crime to a universitas – presents even greater pitfalls when it intersects with the complex phenomenon of religious entities. And this for two reasons: an internal one, since – with regard to the entities of the Catholic Church – it seems essential to question the contributions that canon law is able to offer related to a reconstruction of the criminal liability of collective entities, noting in this regard how we witnessed, in the 1983 Codex, a trend reversal with respect to a long tradition of openness in this sense, while retaining countless traces of a system completely compatible with a theoretical basis unrelated to individual responsibility alone; the other external, as the Italian legislation of reference, d. lgs. 231/2001, also affected by the influence of common law doctrines, prepares precise safeguards aimed at counteracting the phenomenon of the so-called ‘corporate crime’, particularly through the establishment of control and surveillance bodies.
The interpretative difficulties seem to worsen when the so-called discipline of the ‘third sector’ – as amended by d. lgs. 117/2017 and subsequent upgrading laws – is added to this already complex context. In this sense, the new denomination of the protagonists, the ‘religious’ entities, does not seem to help, in compliance with the will of the legislator to blur the reference to institutionally structured confessions, giving more space to those aggregative phenomena linked, in various ways, to religious factor.
This regulatory option therefore requires pursuing a research path oriented to the activity actually carried out by the above-mentioned bodies and to the ways in which it is possible to trace th effects of the commission of offenses to the capital bodies, through the concepts of organic identification and omissive responsibility, in order to channel a renewed concept of accountability within tracks of relevance to the new genetic code of ecclesiastical law, where the delicate intertwining between internal, confessional and treaty regulations is functional to a better effectiveness of criminal protection and, on the contrary, it does not turn into a forge of decontextualized immunity.
Key words: criminal liability, religious bodies, third sector, organic identification, omissive responsibility.
