A critical analysis of corruption and anti-corruption policies in Italy
| DOI | https://doi.org/10.1108/JFC-12-2019-0168 |
| Published date | 28 March 2020 |
| Date | 28 March 2020 |
| Pages | 513-530 |
| Subject Matter | Accounting & Finance,Financial risk/company failure,Financial crime |
| Author | Paola Maggio |
A critical analysis of corruption and
anti-corruption policies in Italy
Paola Maggio
Department of Political Sciences and International Relations,
University of Palermo, Palermo, Italy
Abstract
Purpose –This study aims to criticallyanalyse the Law 9 January 2019, n. 3, on “Measures to fight crimes
against the public administration and on the transparency of political parties and movements”(so-called
bribe-destroyerlaw).
Design/methodology/approach –This paper drawson reports, legal scholarship and other open-source
data to examine a legislativeinnovation for the corruption in Italy in relation to the general guaranteesof the
trial processand with the controversial paradigm of the national perceptionindex of bribery.
Findings –The Italian legislativeinitiative that will be examined is innovative in natureand goes beyond
the constitutional and conventional principles on procedural guarantees. The new initiative needs to be
integrated into the international and Europeanaction against bribery that targets criminal proceeds, and at
the same time, be anchoredin respect for human rights during the process.
Research limitations/implications –The new initiative needs to beintegrated into the international
and European action against bribery that targets criminal proceeds, and at the same time, be anchored in
respect forhuman rights during the process.
Practical implications –Despite the aggressivenessand lofty proclamations by those who aspire to fight
corruption from the highest levels, the goal of rehabilitating Italyfrom one of the seven “deadly sins”that
delay economicgrowth still seems far off.
Social implications –In the absence of public ethics, the increase in criminalisation does not seem
sufficienton its own to guaranteethe containment of the phenomenon.
Originality/value –This study examines the strengths and weaknesses of the important new law, its
compatibility with human rights standards and its relationship to international standards of anti-bribery
policies. The aggressive legislation critically relies on the pervasive and persistent lack of perception of
corruption as a crime. In the confiscation (and now also reparation) of equivalent that normally addresses
assets accumulated in a lawful manner, the periculumis even presumed in re ipsa and the classical aims of
caution undergo a total torsion revealing an authoritarian face that takes on the meaning of anticipating
further sanctioning contents.Finally, the presence of many levels of sanctioning in relation to the same fact
poses seriousproblems of violation of the ne bis in idem rule.
Keywords Bribery, Confiscation, Interception, Presumption of innocence
Paper type Research paper
1. The 2019 law in the framework of anti-corruption legislation
With the approval of Law n° 3 of 9 January 2019, Italy further collects requests from the
Organisation for Economic Co-operation and Development (OECD) through the activity of
the Working Group on Bribery regarding the implementation of the Convention on
© Paola Maggio. Published by Emerald Publishing Limited. This article is published under the
Creative Commons Attribution (CC BY 4.0) licence. Anyone may reproduce, distribute, translate and
create derivative works of this article (for both commercial and non-commercial purposes), subject to
full attribution to the original publication and authors. The full terms of this licence may be seen at
http://creativecommons.org/licences/by/4.0/legalcode
Anti-
corruption
policies
513
Journalof Financial Crime
Vol.28 No. 2, 2021
pp. 513-530
EmeraldPublishing Limited
1359-0790
DOI 10.1108/JFC-12-2019-0168
The current issue and full text archive of this journal is available on Emerald Insight at:
https://www.emerald.com/insight/1359-0790.htm
Combating Bribery of Foreign Public Officials in International Business Transactions
adopted by the NegotiatingConference on 21 November 1997. Similar obligations arisefrom
the Group of States against Corruption (GRECO) established in 1999 by the Council of
Europe to monitor States’compliancewith anti-corruption organisations[1].
The Italian legal framework for corruption has been extensively amended over the past
few years.
Amendment is representedby law n. 190/12, by which Italy confirmed its commitment to
the Criminal Law Convention on Corruption (1999) and to the UN Convention against
Corruption (2003)[2]. Pursuant to Law 190/2012 (“Severino’s Reform”), a few provisions of
the Italian Criminal Code concerning Corruption were amended and other new provisions
were introduced (e.g.Article 319 of the Criminal Code, governing the undue induction to give
or promise a benefit by public officials). With respect to official misconduct
(recommendations 1a and 1b), the Working Group recognised the efforts taken by Italy to
amend its Criminal Code with Lawn° 190 of 6 November 2012, which narrows the scope of
the offence of “concussione”andestablishes a new offence of undue inducement.
Decree Law 90/2014 also extended and reinforced the functions of the National Anti-
Corruption Authority, whose role is to prevent corruption within the public administration
for this purpose; the authority may perform inspections and audits as well as impose
sanctions.
Law 69/2015 further amended the Criminal Code, providing for harsher penalties for
corruption offences.Legislative Decree 38/2017, implementing Decision 2003/568/GAI of the
European Council, reformed the provisions governing private Bribery (i.e. Articles 2635,
2635 –bis and 2635 –ter of the Italian Civil Code).
Investigations of Bribery and Corruption are carried out by the Public Prosecutor’sOffice
and penalties are imposed by judges of the Italian Courts, Courts of appeal and the Supreme
Court. In addition, the National Anti-Corruption Authority (ANAC) has investigative powers.
The key Italian anti-corruption provisions regarding individuals are laid down by the Criminal
Code. Company liability for corruption and bribery is provided for by Articles 25 and Article
25 –ter of Legislative Decree 231/2001, which introduced an administrative liability for
companies and legal entities for crimes committed in the interest or to the advantage of
companies by directors, executives and their subordinates, agents and other individuals acting
on behalf of the legal entity. Moreover, ANAC’s guidelines on bribery and corruption, albeit not
legally binding, lay down the best practices that private and public companies should follow to
ensure that they comply with Italian and EU regulations. Articles 317 to 322 –bis of the
Criminal Code and Articles 2635 and 2635 –bis of the Civil Code provide the main rules
concerning the liability of individuals committing bribery and corruption.
In addition, Legislative Decree 231/2001 foresees that legal entities may be held liable for a
group of offences (including corruption and bribery) committed in their interest or to their
advantage by directors, executives and their subordinates, agents and other individuals acting
on behalf of the legal entity. Article 231 of the Criminal Code states that all the penalties
provided for the offences of “proper bribery”and “bribery for the performance of the function”,
as well as the relevant aggravating circumstances, apply to any person who provides or
promises money or other benefits to public officials (i.e. active corruption). With regard to
foreign companies’administrative liability pursuant to Legislative Decree 231/2001, scholars
and recent case law have recognised the possibility to apply the decree to all foreign companies,
in relation to unlawful acts committed on the Italian territory by them, under the condition that
these companies have operated in Italy. Law 179/2017, which entered into force on 29 De cember
2017, aims at protecting employees who report crimes (whistle-blowers)–including corruption
and bribery –and irregularities that occur in the workplace.
JFC
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