Fabio Cagnola
Studio Legale Cagnola & Associati, Milan
fc@cagnolaeassociati.it

Silva Martina
Studio Legale Cagnola & Associati, Milan
​​​​​​​sm@cagnolaeassociati.it

Introduction

Italian legislation on corruption and bribery matters has notably developed in the last decades and, in 2019, Italian lawmakers took decisive action against corruption, implementing Law 3/2019 –known as ‘Legge Spazza Corrotti’ (‘Sweep-the-Corrupt’ law). This piece of legislation was specifically designed to counter corruption through harsh penitentiary treatment and represents the result of in-depth criminological research on the specifics of Italian corruption in order to best counter the phenomenon. This solution, although effective, raised various constitutionality issues.

Developing the new law 3/2019

A study made in 2019 by ANAC, the Italian national anti-corruption authority, discovered that in the late 2010s there had been a fundamental shift in the nature and circumstances of corruption cases. It was found that cases involved mainly public officials instead of politicians, were smaller in scope and, in some cases, extremely refined. It was also discovered that the forms of consideration were moving away from payments to more indirect types of compensation, such as job offers, consulting work or even material benefits such as property renovation.

The challenges posed by this shift in the nature of corruption cases prompted the lawmakers to approach the problem from multiple angles:

1. The scope of the conducts having criminal relevance was expanded to punish more effectively the new forms of consideration, modifying the wording of the incriminating rules to include ‘any kind of utilities’ as the potential ‘price’ of the corruption;
2. From an evidence gathering standpoint, corruption of public officials was put on par with criminal conspiracy, allowing public prosecutors to use the most advanced and intrusive type of informatic wiretapping during investigations; and
3. The majority of the corruption crimes included in the list were what are referred to as ‘reati ostativi’, meaning those crimes which grant limited access to standard penitentiary benefits in case of conviction.

All the above-mentioned changes resulted in an extremely repressive regulatory situation that exposed public officials to the constant risk of a criminal investigation.

The new law and the Constitution

Although Law 3/2019 proved effective, some key issues instantly surfaced when it was first applied and it was immediately brought to attention of the Italian Constitutional Court on multiple accounts of potential violation of the Italian Constitution.

The Constitutional Court is a judiciary organ of the state that is tasked by the Constitution itself to decide on the compliance of any given piece of legislation with the Constitution. The scope of any decision of the Constitutional Court is bound by the specific request of the lower judge or court that calls for its intervention. This means that for a law to be evaluated by the Constitutional Court there needs to be a proceeding in which a lower court finds itself apparently forced to apply the new law in a way that seems to violate the Constitution.

This was the case for Law 3/2019, as the Constitutional Court was called by Venice’s criminal execution court to decide on the constitutionality of the impact of Law 3/2019 on the penitentiary conditions of a convicted individual, who had been sentenced for corruption before the implementation of Law 3/2019. According to the new Law 3/2019, the Venetian judge was supposed to stop the application of penitentiary benefits that had already been granted to the convicted individual – but this resulted in a harsher punishment than the one which was applicable when the crime was committed.

The specific paragraph of Law 3/2019 that caused the retroactive loss of penitentiary benefits was section 1, 6(b) as it added various forms of corruption to the list of crimes excluded from penitentiary benefits, without any exceptions for crimes already committed.

In Decision No 32, dated 26 February 2020, the Constitutional Court declared the partial unconstitutionality of Law 3/2019. The Court clarified that the general principle inferable from section 25 of the Constitution (that prohibits retroactive incrimination) also extends to retroactive modification of the quality of the punishment.

This decision marks a departure from the previous interpretation of section 25. Before this judgment, the execution of the punishment was completely governed by the laws applicable at the time of sentencing.

As of today, the laws that govern the execution of the judgment are still the ones applicable at the time of the execution, unless the new laws modify the quality of the punishment in a pejorative sense.

Conclusion

In conclusion, Italian regulators are going all out in the fight against corruption, sometimes even pushing the boundaries of what is constitutionally allowed in an effort to prevent corruption through deterrence.