The tools of diversion in the proceedings against companies: the effects of the US model on European systems

The purpose of this paper is to analyze the tools of diversion that some States have already introduced in the proceedings against the companies. The premise from which the analysis moves is represented by the assertion that, even if the principle of legality of the prosecution characterizes the criminal proceedings against natural persons, the ones against legal persons could be, conversely, built on the opposite one of discretion. Then, the analysis moves to ascertain that some of the juridical systems open to a discretionary prosecution have also adopted some diversionary tools that let the companies, which have been committed in restorative activities and in the implementation of their compliance programs, to escape the proceedings deriving for the commission of crimes within their own activities. After portraying the scenario of three samples, i. e. the US archetype, the British implementation and the French recent experiment, the focus shifts to Italy, which has not adopted any diversionary means in the proceedings against a corporation yet. There, could the explicitness of the principle of mandatory prosecution represent help to ensure that the suggested insertion of diversionary tools also in the proceedings against legal persons would not present some of the negatives seen where these kinds of instruments already work, above all the degeneration into a means of unjustified disparity?