Italy is a signatory to several international conventions on bribery and corruption, including:
In the Italian legal system, the legislation concerning corruption offences is provided for in the section dedicated to offences against the public administration of the Criminal Code and in the Code of Criminal Procedure.
However, some fundamental provisions specifically applicable to bribery offences can also be found in Legislative Decree No 231/2001 (referring to the administrative liability of legal entities – see 3.3 Corporate Liability) and in the Civil Code (which proscribes bribery in the private sector – see 2.1 Bribery).
The interpretation and enforcement of anti-corruption provisions is requested of the Italian courts, whose activity is facilitated by the contributions of legal doctrine. Although Italy does not adopt a stare decisis principle, some important case-law rulings play a significantly persuasive role in the interpretation of anti-corruption rules.
On the administrative side, the National Anti-Corruption Authority has published numerous recommendations and guidelines, which, despite many of them not being binding, do assist in the interpretation and enforcement of the rules on the prevention of corruption (eg, regarding legal services or prevention of corruption in state-owned companies).
Since 2012, Italy has embarked on a path of broad-ranging structural reforms, directly or indirectly relating to anti-corruption provisions, which have significantly amended the Italian Criminal Code (ICC), the Code of Criminal Procedure and even the Penitentiary System.
The most effective amendments to the anti-corruption measures were introduced in 2019 by Law No 3/2019 (the so-called “Bribe Destroyer Act”), which takes a significant step towards further advancing the repression of bribery.
This positive process has continued in 2020 and further innovations have been introduced.
Specifically, it is worth highlighting the 14 July 2020 Legislative Decree No 75 (effective since 30 July 2020) entitled “Implementation of the EU Directive no. 2017/1371 (so-called PIF Directive) concerning the contrast, by means of criminal law, of frauds affecting Union’s financial interests”.
With specific reference to anti-corruption measures, the Decree:
Furthermore, 16 July 2020 Law Decree No 76 (converted into Law No 120 on 11 September 2020) amended the crime of abuse in office (Article 323 ICC) in order to restrict the conduct which may be potentially relevant under such provision.
In greater detail, the Decree replaced the words “violations of either rules of Law or secondary regulations” with “violation of specific rules of conduct expressly set forth by rules of either Law or equivalent legislations which are not discretionary".
Such modification of the legal provision determined three consequences connected to each other:
It follows that, the reform at issue determined a partial abolitio criminis with reference to the violations which are no longer included in the legal provision pursuant to Article 323 ICC.
The Italian legislator punishes corruption offences by means of a complex regulatory system aimed at dealing with different types of crimes, which are provided for in Articles 318, 319, 319-ter and 320 (passive bribery) and Articles 321 and 322 (active bribery) of the ICC.
More specifically, the ICC considers as a criminal offence the conduct of a public official or person performing a public service:
(a) who, to exercise his or her functions or powers, unduly receives, for himself or herself or a third party, money or another advantage, or accepts a promise of them (Article 318 – bribery for the exercise of a function);
(b) who receives money or any other advantage, or the promise thereof, for himself or herself or a third party, to omit or delay, or for having omitted or delayed acts relating to their office, or to perform or for having performed acts in breach of his or her official duties (Article 319 – bribery for the performance of acts in breach of official duties);
(c) who commits the offences described in (a) or (b) in favour of or against a party to civil, criminal or administrative proceedings (Article 319-ter – bribery in judicial proceedings).
Punishment for passive bribery shall also apply to whoever gives or promises money or any other advantage to a public official or person performing a public service if the promise is accepted (Article 321 – active bribery).
Conversely, if the offer, promise or request of a bribe is not accepted, the mere conduct of incitement to corruption is considered as a minor criminal offence (pursuant to Article 322, punishment provided for in Articles 318 or 319 is reduced by one third).
Under Italian legislation, bribery offences do not just include cases where the public official performs an act in accordance with or contrary to their official duties because of a previous agreement with the bribe giver. In fact, even the mere agreement (or the mere solicitation) to perform or not perform the functions of a public official in return for a bribe also constitutes conduct punishable under criminal law. In other words, there is no requirement for the results expected by the perpetrators to actually occur.
It is important to note that the Criminal Code does not distinguish between a bribe (money or other advantage) and gifts, promotional expenditures or other facilitation payments. For this reason, even a small amount of money can trigger criminal provisions concerning corruption if related to the exercise of a public function by the receiver.
However, many companies and public authorities have adopted codes of conduct that specifically address this issue by regulating the conditions and extent of facilitation payments.
Finally, it is worth mentioning that the Italian criminal law system does not contemplate the conduct of individuals who fail to prevent bribery as an offence. In fact, the general provision set out in Article 40 of the ICC for cases in which omitting to avert a result is treated as an active act does not cover corruption offences.
The definition of “public official” is provided by Article 357 of the Criminal Code as those who perform a legislative, judicial or administrative public function (ie, an administrative function that is:
In addition to that figure, anti-corruption provisions also cover acts committed by a “person performing a public service”, which, under Article 358 of the ICC, is defined as whoever performs any activity that is governed in accordance with the same modalities as a public function, excluding the performance of simply ordinary tasks and exclusively manual work.
Moreover, according to international conventions ratified by Italy, Article 322-bis of the ICC extends the provisions applicable to domestic public officials to foreign public officials. More specifically, the offences of embezzlement (Article 314 ICC), embezzlement by taking advantage of a third parties’ error (Article 316 ICC), blackmail by a public official (Article 317 ICC), undue induction to give or promise benefits (Article 319-quarter ICC), active and passive bribery (Articles 318, 319, 319-ter, 320 and 321 ICC), and incitement to bribery (Article 322 ICC) are triggered in all cases when involving:
In accordance with the Council of Europe’s Criminal Law Convention on Corruption, the Italian legislator criminalises the conduct of bribery between private parties.
More specifically, Article 2635 of the Italian Civil Code punishes directors, general managers, managers responsible for preparing a company's financial reports, statutory auditors, liquidators or any other employees of private entities who solicit or receive undue money or other advantages (or accept the promise thereof) to perform or omit an act in breach of their duties.
The same sanctions also apply to whoever, even through an intermediary, offers, promises or gives money or other undue benefits to the persons mentioned in the paragraph above.
It is important to note that Anti-corruption Law No 3/2019 has introduced the opportunity to punish ex officio bribery in the private sector by eliminating the procedural requirement of a complaint by the victim.
In addition to corruption offences, the Criminal Code also punishes the conduct of active and passive trading in influence.
In particular, under Article 346-bis ICC the conduct of any private person or official who, by exploiting or claiming a real or apparent influence on a public official or a person in charge of a public service, unduly receives money or other financial advantage, as the price for his or her own illicit mediation or for the payment of the public official, to act in contrast to his or her duties or to omit or delay an act of his or her duties is considered criminal.
As a result of Anti-corruption Law No 3/2019, Article 346-bis ICC has extended its scope to the influence-peddling of foreign public officials as defined by Article 322-bis ICC (see 2.1 Bribery).
As required by international conventions, the Italian legislator criminalises certain conduct deemed preparatory to bribery offences.
For this reason, Article 2621 of the Civil Code punishes directors, general managers, managers responsible for preparing the company's financial reports, statutory auditors and liquidators who, in order to obtain an undue profit for themselves or for others, falsify financial statements, reports or other corporate communications addressed to shareholders or the public, by presenting a misleading picture of the financial situation of the company (or group).
More severe penalties are envisaged for accounting fraud regarding listed companies (Article 2622 of the Civil Code).
Within the Criminal Code, the misappropriation of public funds carried out by a public official is relevant under the offence of embezzlement set forth by Article 314 of the ICC.
In greater detail, such offence expressly punishes the public official who, having possession, or in any case having available, money or other things by reason of his or her functions, makes them his or her own.
In this case, no unlawful request or order must arise from the public official, whose behaviour is limited to embezzling money or other things of which he or she has possession.
On the other hand, the potentially unlawful taking of interest or showing of illicit favouritism by a public official might trigger, respectively, the crime of abuse in office or the endangerment of fairness of tenders.
Abuse in Office
In the Italian legal system, public officials have the general duty to abstain in the case of a personal conflict of interests (or in the event of a relative’s conflict of interests) and failure to do so may fall under the crime of abuse in office, as set forth in Article 323 of the ICC.
However, mere inobservance of the duty to abstain is sufficient to be deemed abuse in office (the other conduct described by the legal provision is breach of the law or regulations), but is not enough to trigger the offence at issue.
Indeed, for the occurrence of the offence under Article 323 of the ICC, the law also requires:
According to this provision, the public official is punished whenever he or she acts intentionally in breaching the law or, otherwise, fails to abstain in circumstances of conflict of interests (relevant even in the case of a third party’s interest), obtaining – in this way – an undue profit for himself or herself (or for others) or, alternatively, causing a detriment to others.
Endangerment of Fairness of Tenders
The conduct linked to favouritism on the part of a public official, who guarantees an undue advantage to a third party by acting in breach of the law ensuring free and equal access to bidders for the granting of contracts, is relevant from a criminal law perspective and is punished by two different provisions included in the Criminal Code.
The offence under Article 353 of the ICC (disturbing the fairness of tenders) punishes anyone who, by means of violence or threat, gifts, promises, collusion or other fraudulent means, prevents or disrupts the fair course of the tender, or prevents tenderers from competing in it.
Moreover, in the event such conduct is carried out by a person designated by law or a public authority to manage the tender, the sanctions (fine and imprisonment) are increased. In this case, the designated person is considered to hold the office of a public official.
The second offence to be considered is the crime or offence of "Disrupting the fairness of the procedure for choosing a bidder" as set forth in Article 353-bis of the ICC.
This legal provision punishes anyone who, by means of violence or threat, gifts, promises, collusion or other fraudulent means, alters the administrative proceedings intended to determine the content of the call for bids, or any other equivalent notice, pursuing the intention to influence the methods adopted by the Tender Authority for choosing the successful bidder.
Some of the specific offences against the Public Administration (ie, Articles 317, 318, 319, 319-quater, 323 of the ICC) provide for the liability of a public official, both in the event that the act is committed by him or her, and in the event the advantage or money (as forms of payment for the performance or omission of the due or undue act, or merely as a result of the role the public official holds) is received by a third party.
Furthermore, all the above-mentioned offences may hypothetically be committed through an intermediary: indeed, the criminal system states a general rule, set forth in Article 110 of the ICC, according to which any person who participates in the commission of a crime (through conscious behaviour and causally linked to the fact) is liable for it. In this way, any third party who acts together with the agent is equally liable for the crime committed.
The statute of limitations of the offences discussed in 2 Classification and Constituent Elements differs from crime to crime and must be calculated starting from the time the offence was perpetrated.
According to Article 157 of the ICC, the crime is extinguished in the period corresponding to the maximum prison term provided for each offence and, in any case, in a period not less than six years.
Furthermore, according to Articles 160 and 161 of the ICC, this term can be suspended by one of the suspending acts provided for by the law (eg, the request for committal to trial) and may be extended by up to one quarter of its ordinary duration. Note that the term of extension is half of the ordinary duration for the crimes under Articles 318, 319, 319-ter, 319-quater, 320, 321, 322-bis of the ICC.
At the same time, according to the new legislation introduced by Law No 103 of 23 June 2017, in the event of a conviction, the statute of limitations is also suspended for a maximum of one year and six months from the expiration term to file the grounds of the sentence, to the decision of the following stage of the proceedings (Article 159, paragraph 2 ICC).
Such suspension may occur both between the first-degree sentence and the decision before the Court of Appeal, and the decision before the Court of Appeal and the sentence of the Court of Cassation. This means that the maximum suspended period is three years.
Finally, the reform introduced by Law No 9/2019 widely amended the statute of limitation provisions, stating that the statute of limitations is suspended from the first instance verdict (regardless of whether it is a conviction or an acquittal) until the final judgment becomes enforceable. This means that, after the first instance judgment, the statute of limitations cannot expire until the end of the proceedings.
Such amendment came into force on 31 January 2020 and, therefore, it is applicable only to offences committed after 31 January 2020.
With reference to the administrative liability of legal entities, Article 22 Legislative Decree No 231/01 states that the limitation period is five years from the occurrence of the crime.
Such term can be suspended by a request to apply precautionary measures and by an entity being charged with having committed the administrative offence. In the latter event, the statute of limitations does not run until the final judgment becomes enforceable.
Italian criminal law applies to crimes committed on Italian territory. More specifically, under Article 6 ICC, territorial jurisdiction is established (a) over conduct which occurred either wholly or partially within the territory of the state, or (b) even in those circumstances where the offence is wholly committed abroad but its effects take place in the national territory.
Nevertheless, with regard to certain serious offences, such as corruption, Articles 9 and 10 of the Criminal Code establish national or universal jurisdiction over cases not covered by the above-mentioned Article 6.
Specifically, Italy has extraterritorial jurisdiction over conduct wholly committed abroad which do not have any effect in the national territory when three conditions are met:
However, it should be mentioned that Anti-corruption Law No 3/2019 has recently facilitated the prosecution of corruption offences committed by a national or foreign citizen by eliminating the condition that a request for punishment for such crimes is made by the Minister of Justice or the injured party.
Legislative Decree No 231/2001 introduced administrative liability against legal entities in the event that any of the crimes listed in Legislative Decree No 231/2001 (including crimes against public administration) is perpetrated by directors, managers or employees for the benefit, or in the interest, of the company.
This is an autonomous liability of the legal entity (so-called "organisational negligence") for not having adopted organisational models capable of preventing the crimes listed in the Decree from being committed (for further details, see 4.5 Safe Harbour or Amnesty Programme and 6.1 National Legislation and Duties to Prevent Corruption).
In connection with this point, it is worth mentioning that a company’s liability arising from crimes committed is completely independent of corporate events following the perpetration of the crimes. Indeed, according to Articles 28, 29 and 30 Legislative Decree No 231/01, in the case of changes to a legal entity’s organisational structure, the company remains liable for the offences committed before the date on which the changes took effect; in the same way, in the event of a merger or takeover, the resulting legal entity is liable for the offences for which the previous entities were responsible before the merger or takeover. On the other hand, in the event of a partial split-up, the divided company remains liable for crimes committed before the split.
In general terms, the Italian criminal system is founded on the presumption of innocence, so that the burden of proof in demonstrating that a crime has been committed lies with the prosecutor. This means that, if there is any doubt about the defendant’s guilt, he or she must be acquitted in accordance with the in dubio pro reo rule.
With regard to an individual’s liability, the first defence for any crime (not only bribery or other crimes against the public administration) may be based on the demonstration that the so-called “objective elements” of the offence have not been satisfied or sufficiently proved by the prosecutor.
Furthermore, another defence strategy may consist in attempting to demonstrate the lack of intent by the defendant to commit a crime (lack of mens rea), which is a mandatory condition for punishment.
Another argument that may be used as a defence for the above offences relates to so-called “mitigating” or “exonerating” circumstances (see 7.4 Discretion for Mitigation and 4.5 Safe Harbour or Amnesty Programme).
Regarding the legal entity's liability, see 6 Compliance and Disclosure.
There are no exceptions to the above defences.
In general, there are no de minimis exceptions under Italian Law: a bribe of any value will constitute an offence.
The only exception – the relevance of which is, in any case, subject to the court – can be configured if the “advantage” is permitted by the law or if its value is very small as, for instance, in the case of a mere courtesy gift (the so-called munuscula). Please consider that Decree No 62/2013 provides exceptions for munuscula or donations of modest value to be identified, for public employees, in an amount of EUR150).
The value of the bribe could also be taken into account by the court as a mitigating factor in determining the quantum of sanction to be imposed: according to the mitigating circumstance provided by Article 323-bis of the ICC, if the offences under Articles 314, 316, 316-bis, 316-ter, 317, 318, 319, 319-quarter, 320, 322, 322-bis and 323 of the ICC are particularly slight, the sanction is reduced by up to one third.
In Italy, no sectors or industries are exempt from corruption offences.
It is, however, important to bear in mind that most of the offences described require, as an “objective element” of the crime, the fact that the unlawful advantage is granted or promised to a public official or a public service provider.
With reference to corruption crimes, a new exonerating circumstance – introduced by Law No 3/2019 – is provided by Article 323-ter of the Criminal Code in the event of self-incrimination and effective co-operation with the judicial authority.
For more details, see 7.4 Discretion for Mitigation.
Regarding the specific exonerating consequence for legal entities, arising from the adoption of an adequate compliance system, see 6.1 National Legislation and Duties to Prevent Corruption.
Penalties upon conviction for the above offences are different for individuals and legal entities.
With specific regard to penalties provided for legal entities, penalties arising from crimes can be “financial” or “disqualifying”: according to Article 10 of Decree No 231/2001, financial penalties are always applied for administrative offences arising from a crime and are applied in terms of not less than 100 units (the so-called quotas) and not more than 1,000 units. The amount of each unit is not below EUR258 and not above EUR1,549, according to Article 11 of Decree No 231/2001.
Penalties for the following offences when committed by individuals or legal entities are:
The only guidelines or principles applicable to the assessment of the penalties are provided by the “general part” of the Criminal Code in Articles 132 and 133. The first states that the application of penalties shall be at the judge’s discretion, within the limits (minimum and maximum) established by the law for each crime; the second specifies the principles to be applied by the judge in the exercise of his or her discretionary power (eg, the judge has to take into account the seriousness of the offence and the individual’s attitude to the crime). Sanctions are increased in the event of a repeat of the crime, in accordance with Article 99 ICC.
Articles 11, 14 and 20 Legislative Decree No 231/2001 state similar principles for the administrative liability of legal entities.
Legislative Decree No 231/01 states an autonomous administrative liability of legal entities, in the event that one of the crimes listed in the Decree (including bribery and corruption offences) is perpetrated in the interest or to the benefit of the company by persons who have representative, administrative or management functions or by persons under the direction or supervision of one of these persons.
All such provisions are enforced by the Criminal Court (following an initiative put in place by the prosecutor), which has the duty to assess – usually in the same proceedings – both individual and corporate liabilities and, as a consequence, issue judgments of acquittal or conviction.
In order to avoid liability in the event a crime has been committed in the interest or to the benefit of the company, according to Articles 6 and 7 of Legislative Decree No 231/2001, entities may adopt the so-called “organisational models” in order to prevent the crimes listed in the Decree from being committed.
According to Legislative Decree No 231/2001, the model must be considered “effective”; this means that, according to Article 6 paragraph 2 of the Decree, the model must:
The adoption of the model is not mandatory for the company but is a necessary condition to avail of the exonerating circumstance provided for by Legislative Decree No 231/2001.
Indeed, as highlighted in 3.3 Corporate Liability, the company has a duty to prevent bribery as an offence (as well as all the other crimes listed in Legislative Decree No 231/2001) and, in the event of failure of such obligation, an autonomous liability might arise for not having adopted organisational models capable of preventing the crimes listed in the Decree from being committed.
Other essential tools for the implementation of the model – as usually stated by the courts – are disclosure of the content of the model and staff training:
In the Italian criminal system, there is no obligation for individuals (who are not public officials) or companies to report bribery or other crimes against the public administration, of which they become aware, to the judicial authority.
Law No 179/2017 – which came into force on 29 December 2017 – introduced a public and private system of protection for whistle-blowers in Italy.
In the Public Sector
Starting from the public sector, according to the law, a public employee who, in the interest of the integrity of the public administration, reports to the “person responsible for preventing corruption and transparency” (pursuant to Article 1, paragraph 7, of Law No 190, 6 November 2012), or to the National Anti-Corruption Authority (ANAC), or by complaint to the ordinary judicial authority or the accounting authority, unlawful conduct of which he or she has become aware due to his or her employment relationship, cannot be sanctioned, demoted, dismissed, transferred, or subjected to any other organisational measure with detrimental effects, direct or indirect, on his or her working conditions determined by the report.
Furthermore, the law guarantees protection for the whistle-blower by providing for two sanctioning powers by ANAC:
In Private Legal Entities
From the standpoint of private legal entities, the law provides specific protection to whistle-blowers according to Decree No 231/2001 (but only for those companies which have adopted an organisational model).
In greater detail, according to Article 6, paragraph 2-bis, of Decree No. 231/2001, companies are required to provide:
No incentive is offered to whistle-blowers as a consequence of reporting bribery or corruption.
The only “incentive” – actually, a sort of “protection” for the whistle-blower – is the one provided by Article 3 of Law No 179/2017, which qualifies the complaint of the whistle-blower, if the "interest of the integrity of the public administration” is pursued by him or her, as a “justified cause” of disclosure of professional secrets. Therefore, Article 3 provides for an exonerating circumstance for the crimes of “disclosure and use of official secrets” (Article 326 ICC), “disclosure of professional secrets” (Article 622 ICC), “disclosure of scientific and industrial secrets” (Article 623 ICC) and “breach of the duty of loyalty” (Article 2105 of the Civil Code).
With reference to the new exonerating circumstance provided by Article 323-ter of the ICC in the event of self-incrimination and effective co-operation with the judicial authority, see 4.5 Safe Harbour or Amnesty Programme.
Provisions regarding whistle-blowers in the public sector are set out in Article 54-bis of Legislative Decree No 165/2001; provisions regarding the private sector are set out in Article 6 of Legislative Decree No 231/2001.
As mentioned in 6.3 Protection Afforded to Whistle-Blowers, both decrees have been amended by Law No 179/2017 entitled “Provisions for the protection of whistle-blowers who report offences or irregularities which have come to their attention in the context of a public or private employment relationship”.
See 7.3 Process of Application for Documentation.
See 7.3 Process of Application for Documentation.
As mentioned previously, in the Italian jurisdiction, the main anti-bribery and anti-corruption provisions are included in the Criminal Code, which describes conduct which may trigger the relevant crimes and provides for the correlative sanctions.
At the same time, Legislative Decree No 231/2001 establishes an autonomous administrative liability for legal entities, in the event that one of the crimes listed in the Decree (including bribery and corruption offences) is perpetrated in the interest or to the advantage of a company.
All such provisions are enforced by the Criminal Court (following an initiative put in place by the prosecutor), which has a duty to assess individual and corporate liabilities and, as a consequence, deliver judgments of acquittal or conviction.
On the other hand, Law No 190/2012 established the National Anti-Corruption Authority (ANAC) which is an administrative authority aimed at preventing corruption in public administrations. ANAC has a broad range of powers (listed also under ANAC in Legislative Decree No 90/2014 and No 50/2016), which may be summarised as follows:
With reference to mitigation powers, it is important to highlight that they concern two different fields: administrative law and criminal law.
From the administrative perspective, it is worth mentioning ANAC Resolution No 949/2017, which introduced the possibility to extinguish the administrative pecuniary sanctions issued by ANAC, in the event that no disqualifying sanctions are applicable, by means of the payment of a reduced fine.
Payment of the fine is due within 60 days from the notification of the violation, at a rate of EUR500 in the case of failure to provide the information requested and EUR1,000 in the case of providing false information.
On the other hand, regarding potential mitigation powers in the criminal field, the Criminal Code and the Criminal Procedure Code provide for three different mitigation measures which may be applied by the Criminal Courts to reduce the sanctions described in 5.1 Penalties on Conviction.
Plea Bargain Proceedings
According to Articles 444 and following of the Criminal Procedure Code, individuals may settle the charge through a plea bargain agreement with the prosecutor setting out the pecuniary sanctions (fines) and the duration of imprisonment.
The main positive outcomes of plea bargain proceedings are as follows:
Note that, as set forth by Article 444 paragraph 1-ter of the Criminal Procedure Code, in the event of prosecution of any of the crimes set forth in Articles 314, 317, 318, 319, 319-ter, 319-quarter and 322-bis of the ICC, the request for plea bargain proceedings is subject to the full restitution of the price or the profit arising from the offence.
The court assesses whether the latter condition is met and, in general terms, whether the plea bargain agreement complies with the law. If the evaluation is positive, the court delivers the plea bargain sentence.
Furthermore, Law No 3/2019 added paragraph No 3-bis to Article 444 of the Criminal Procedure Code, which states that, in the event of prosecution for any of the crimes provided for by Articles 314 paragraphs 1, 317, 318, 319, 319-ter, 319-quarter, paragraphs 1, 320, 321, 322, 322-bis and 346-bis of the ICC, the plea bargain request may be subject to the exclusion or suspension of the accessory penalties provided for by Article 317-bis of the ICC. Should the court deem it mandatory to apply these accessory penalties, it shall reject the plea bargain request.
Finally, it is important to highlight that, pursuant to Article 63 of Legislative Decree No 231/2001, administrative liability may also be settled through a plea bargain agreement. Indeed, the company is entitled to settle its potential administrative liability with an agreement on pecuniary sanctions and on the duration of disqualifying measures (if applicable).
Two Special Mitigating Circumstances Set Forth by Article 323-bis ICC
The special mitigating circumstance under the first paragraph is met when the offences under Articles 314, 316, 316-bis, 316-ter, 317, 318, 319, 319-quarter, 320, 322, 322-bis and 323 of the ICC are particularly slight. In such event the sanction is reduced by up to one third.
In greater detail, such mitigating circumstance occurs when the whole offence is barely offensive and, therefore, not very serious, with reference to the conduct carried out, the amount of economic damage or profit attained, the subjective attitude of the perpetrator and the event (see latest Court of Cassation, Section VI, 23 May 2019, No 30178). Therefore, the application of such mitigating circumstance cannot be determined by the mere slightness of the advantage gained by the perpetrator.
The second mitigating circumstance has been introduced by Law No 69/2015 and occurs if the perpetrator made effective efforts to:
In accordance with Article 25, paragraph 5-bis Legislative Decree No 231/2001, the same mitigating measure is applicable to the benefit of the legal entity which meets all the above-mentioned conditions and adopts an organisational model suitable to prevent crimes of the same type.
Such circumstance (which is applicable only with reference to the offences under Articles 318, 319, 319-ter, 319-quarter, 320, 322, 322-bis and 323 of the ICC) is a kind of active repentance post delictum and determines a reduction of from one to two thirds of the penalties.
It is important to point out that, in accordance with the case law referred to, similar legal provisions (see Court of Cassation, Section IV, 14 April 2016, No 32520) state that such mitigating circumstance cannot be granted in the case of reticence, even if only partial, on the part of the perpetrator, as collaboration is required to be full and effective.
Non-punishable Clause Set Forth by Article 323-ter ICC
Law No 3/2019 introduced a special non-punishable clause in the event of self-incrimination and effective co-operation with the judicial authority.
In greater detail, such clause requires that:
Furthermore, the perpetrator is required to make available the benefit received or, where this is not possible, make available a sum of money of equivalent value, or provide useful information to identify the beneficial owner of the advantage. Such initiative must also be carried out within four months of perpetration of the crime.
The non-punishable clause is not applicable if the self-incrimination is aimed at perpetrating the crime reported or at uncovering the agent who has acted in breach of the law.
Exonerating Circumstance for Legal Entities
Article 17 Legislative Decree No 231/2001 states that disqualifying sanctions are not applicable if, after the unlawful behaviour but before the beginning of the trial, the company is able to meet three requirements:
See 7.4 Discretion for Mitigation.
In recent Italian judicial news, there are many cases of corruption which could be considered as landmarks in case law.
Among them, it is important to highlight a recent proceeding launched by the Prosecutor's Officein Milan with reference to potential offences of corruption, disturbing the fairness of tenders, embezzlement and abuse in office. The case involves more than 30 individuals andeight companies (charged with administrative liability under Legislative Decree No 231/2001), which were part of an illicit system aimed at altering the fair courseof tenders for the innovation and maintenance of Milan's subway railways.
It isalsoworth mentioning that the Criminal Court of Cassation had the opportunity to examine some issues related to whistle-blowing.
In greater detail, two different principles are regularly affirmed by the case law:
See 7.6 Recent Landmark Investigations or Decisions Involving Bribery or Corruption.
In addition to the reports provided by the Court of Cassation concerning the general approach followed by criminal case law related – inter alia – to crimes against the public administration, it is important to point out that ANAC issues an annual report on the progress of its activities.
Such documents provide evidence of the results achieved and, simultaneously, highlight possible future initiatives aimed at preventing corruption.
In greater detail, the latest version of the report (released on 2 July 2020) describes positive outcomes arising from prevention activity, which have also been confirmed in the report released by anti-corruption organisation Transparency International with reference to 2019.
The report highlights that corruption in Italy is rather “pulverised and multifarious” and involves almost all the territorial areas of the country. Furthermore, the value of the bribe is frequently very low and is often not represented by a sum of money, but by a different utility (eg, hiring friends and relatives in breach of the law which regulates recruiting in public administrations, building renovations, vacations, etc).
With reference to potential changes to the applicable legislation or the enforcement body, it is important to point out that, on 13 February 2020, the Council of Ministries approved the draft of reform of the criminal trial.
The main proposed modifications concern:
Anti-corruption Regulation and the Approach of the Criminal Courts: All that Glitters Is Not Gold
Corruption is usually considered as an old die-hard disease of Italian society, which dates back to the beginning of the past century at least. This is why the Italian Code of Criminal Law (introduced in 1930 and still in force) has always provided a wide and substantial regulation of crimes against the public administration, and why such regulation has been subjected to a number of legislative reforms across the years. In recent times, the regulation of crimes against the public administration has been consistently strengthened. Today, crimes such as bribery, bid-rigging and others are among the criminal offences punished with the highest penalties in the field of white-collar crimes in Italy. Moreover, the regulation of corruption has been amended through the extension of criminal law provisions originally introduced to fight organised crime (as in mafia-type organisations).
The approach of the prosecutors’ offices has also changed over the years. The evolution of the prosecutors’ approach can be categorised in terms of a constant, progressive aggression towards corruption in all fields of society. In the course of the 20th century, the fight against corruption was basically limited to the ambit of public administration (for instance, bribery of public officials, as employees of public bodies). At the end of the 20th century, there came a turning point with the so-called "hands-clean operation", carried out by the Prosecutor’s Office of Milan, that literally destroyed a large part of Italian political parties, leading to the end of a historical phase of Italian politics. At that point in time, the paradigm of anti-corruption changed forever: the execution of extensive investigative activities (in the form of massive wire taps and cross-border investigations) and the striking use (in many cases, the abuse) of pre-trial detention finally managed to obtain both confessions from the defendants and accusations against other individuals that left a deep scar in the Italian legal framework (and in the social framework as well), which is still far from healing. From that moment on, a fracture took place between, on the one hand, the need to properly prosecute corruption – which, as a matter of fact, dramatically affected Italy – and the need to act in compliance with the Rule of Law and the fundamental right to defence.
In recent times, the fight against corruption has focused on new horizons: from so-called academic corruption (ie, corruption among university professors in order to get chairs, publications, etc) to corruption in the pharmaceutical corporations’ field; from international corruption to private corruption.
In a nutshell, when we deal with Italian anti-corruption regulation, we deal with a constantly moving and changing juridical issue, with both old-time roots and innovative perspectives, always in the framework of a severe and rigid court practice.
Changes in legislation
Corruption and bribery crimes are regulated in the Second Title of the Second Book of the Italian Criminal Code. Such regulation is made up of two parts: crimes of public officials against the public administration and crimes of private citizens against the public administration. The regulation in question went through several changes over the years starting from 1990, 60 years after the publication of the Italian Criminal Code in the 1930 Kingdom of Italy Official Gazette of Laws and Decrees. The aim of the said changes was to adjust the criminal provisions to fit the new social and economic trends and, therefore, to effectively punish those behaviours which had a large impact on the state, by ensuring the correct functioning and fairness of the Italian public administration compared to international and European public administrations.
The first relevant amendment came into force with Law 86/1990. This law introduced new provisions into the Italian Criminal Code: Section 316-bis (crime of embezzlement against the Italian state) and Section 319-ter (crime of bribery in judicial actions). Amendments in several sections, already in force in the ambit of crimes against the public administration, were also introduced.
After the 1995 PFI Convention (on the protection ofcommunities' financial interests), in 2000 the Italian legislature introduced Section 316-ter into the Italian Criminal Code: the crime of misappropriation of funds to the detriment of the state (or other public entities or the EU).
Later on, in 2012 a new law (Law 190/2012) introduced further modifications, such as, increasing the period of detention set out for crimes of bribery.
The latter law also introduced a new provision: Section 319-quater, wrongful inducement to give or promise any utility, and the crime of unlawful illicit influences. Furthermore, this law amended Section 2635 of the Italian Civil Code, now named commercial (private) bribery, which can be both active and passive.
The reform at hand also introduced amendments to Legislative Decree 231/2001, the law that defines the liability of a legal entity for a crime perpetrated by an individual within the company.
Section 318 of the Italian Criminal Code was also modified by providing that, in this form of bribery (so-called, “proper bribery”), public officials do not have to perform a specific act related to their office – the crime will also be considered committed when public officials make themselves available to private interests in exchange for money or other utilities (without the perpetration of a specific act).
After the 2012 reform, another important change occurred in 2015, with Law No 69, which greatly increased the time of custodial sentence of the criminal provisions for bribery and corruption set out in the Italian Criminal Code. For instance, detention provided for the crime of misappropriation, committed by public officials, of money or other goods available to them due to their office or service (Section 314 of the Italian Criminal Code), was set from four years up to ten years and six months (instead of the previous penalty range of from four up to ten years).
In 2019 the legislature approved Law No 3/2019, which introduced new paragraphs into already existing criminal provisions and amended some of the existing ones. For instance, the crime of corruption for the exercise of a function, pursuant to Section 318 of the Italian Criminal Code, is now punished with a custodial sentence ranging from three years up to eight years (instead of the previous penalty of from one up to six years' imprisonment).
Relevant developments in court law
Corruption in Italy is not only a long-term problem, but also the subject of important criminal investigations. Aside from the historical case of hands clean in the 1990s, new criminal investigations are based on allegations of corruption that have been committed in totally new ways.
This is the case, for example, in the “academic corruption” investigation started by the Prosecution Office of Florence in 2017. According to the allegations, many Italian professors of tax law have illegally exchanged favours in the attribution of roles, publications etc to their collaborators. This is an extremely wide criminal investigation, still underway, that has deeply shaken the Italian academic world in the domain of tax law, also because the judicial authority has opted to ban precautionary measures during the preliminary investigations, in order to prevent the reiteration of the alleged crimes. The trend has been set and other prosecution offices have also started dealing with similar allegations: this is the case, for example, of the Catania Prosecution Office, which started a criminal investigation for academic corruption in 2019.
Another area under the frequent attention of the judicial authority is that of the “Pharma corruption” cases, ie, a number of criminal investigations based on the allegation that big pharmaceutical companies would have paid or offered benefits to doctors or other key decision-makers in the health sector in exchange for support of their drugs, both by choosing them in the everyday care of patients and by supporting them in the bureaucracy for obtaining authorisation for commerce in Italy. Notable cases are criminal investigations underway before the Prosecution Office of Parma, which contain references – again – to the fact that the professors involved in the investigation would have used their powers to attribute academic positions or research grants.
And in 2020, we go back... to the future. It's been 28 years since the explosion of the hands-clean case, and Milan has again become caput mundi of corruption investigation cases with a new shocking investigation revealed last June: the “ATM case”, ATM being the public transport company of the municipality of Milan. Many people were arrested and put in jail or under house arrest in execution of a preventative measure to address an alleged system of corruption involving a key employee of the ATM company and many representatives of huge hi-tech corporations, who were interested in joining public tenders for work on the Milan underground lines and in obtaining help and support to win these tenders. Even if it is not as wide as the hands-clean case, the ATM investigation – still underway and far from over – has again shaken one of the city of Milan's fundamental institutions.
The portrait above clearly shows the – still – unhealthy state of the Italian system in terms of the fight against domestic corruption. New broad investigations of corruption arise every year, with huge scandals in the press, and it seems that the prosecution offices find bribes in every corner. However, on the other side of the coin, it must also be remembered that criminal proceedings are a matter of guarantees and presumption of innocence: none of the cases mentioned above has reached a final verdict yet, and it is definitely too soon to draw conclusions on the correctness and historical impact of these investigations. Fighting corruption also means being able to understand what corruption is not, and this requires time (and final judgments).
Corruption is a “transnational phenomenon that affects all societies and economies, making international co-operation essential to prevent and control it”. These are the words of one of the milestones in the worldwide effort to prevent and fight corruption: the United Nations Convention Against Corruption (UNCAC), which was adopted by the General Assembly of the United Nations on 31 October 2003 at the United Nations Headquarters in New York and came into force on 14 December 2005. Italy and 186 other states signed and ratified UNCAC.
UNCAC has played a key role over the years in worldwide anti-corruption efforts, and among its objectives (which include the prevention, investigation and prosecution of corruption, and the freezing, seizure, confiscation and return of the proceeds of bribery and corruption offences), a crucial one is to “promote, facilitate and support international co-operation and technical assistance in the prevention of and fight against corruption, including in asset recovery”. UNCAC addresses this in its Fourth Chapter.
UNCAC advocates that state parties should co-operate in criminal matters, as for instance in the extradition of an individual; in the case of the transfer of a sentenced person; in affording mutual legal assistance in investigations, prosecutions and judicial proceedings; and also by promoting co-operation between law enforcement agencies and relevant private entities.
On the European level, these principles were also applied, starting with the Treaties of Maastricht, Amsterdam and Lisbon, and the creation of a European judiciary space.
With the Schengen Agreement and the abolition of the borders between the European member states, the European legislature introduced a number of provisions to counterbalance the issues related to the safety of member states as a consequence of the free movement of people between them: judiciary assistance in the criminal law field, the application of the ne bis in idem principle, extradition and the transfer of criminal judgments. An important innovation concerned the creation of the Schengen Information System with the aim to guarantee – through a reporting system – that some people could not freely circulate between the borders.
Among the tools for co-operation between European member states, a key role is played by the European arrest warrant, introduced by the EU Council Framework Decision on 13 June 2002. In Italy, this Decision was implemented by Law No 69/2005 and provides that the European arrest warrant is a judiciary decision issued by a member state in view of the arrest and surrender of an individual, on the part of another member state, for the purposes of prosecution or enforcement of a sentence.
Furthermore, the co-operation between the member states is achieved with the European Investigation Order (EIO), an effective tool of judiciary assistance in the criminal law field between member states. On the EU’s side, this tool was introduced by EU Directive No 2014/41/UE and was then implemented in Italy through Legislative Decree No 108/2017. The EIO is a decision issued or validated by a national judicial authority that is forwarded to the judicial authority of another member state so that investigations provided by that Decree can be carried out.
Additionally, co-operation is carried out by EU member states through the mutual recognition of conviction judgments to custodial sentences and their transfer to another member state (EU Framework Decision 2008/909/GAI enforced with Legislative Decree No 161/2010).
Trends for the future
A first trend for the future is the increasing importance of internal corporate investigations in anti-corruption related matters. In the latest cases of criminal proceedings regarding bribery crimes, the role of corporate internal investigations has become crucial, especially when the criminal proceedings involve multinational companies. When the prosecutor challenges a bribe inside a company, the latter is immediately called upon to decide whether to initiate an internal investigation aimed at ascertaining the alleged illicit conduct enacted by its employees.
The situation at hand – which is absolutely ordinary in the Anglo-Saxon world – is indeed peculiar in Italy. Such peculiarity arises from the fact that the Italian legal framework does not set out any kind of self-reporting or non-prosecution, or deferred prosecution, agreement. The great obstacle is represented by the fact that prosecution, according to the Italian constitution, is mandatory. Hence, the scenario is very different from the one possible – for instance – in the USA or in the UK: the company cannot perform an internal anti-corruption investigation in order to avoid prosecution, but just in order to mitigate the potential damage arising from criminal proceedings.
To expand, when the company is served with a notice from the prosecutor’s office revealing the existence of a criminal case regarding corruption counts, it is strongly advisable for the company itself to start an internal investigation (the final report of which could then be filed with the prosecutor’s office). By doing so, the company may be able to prove the implementation of an effective organisational model pursuant to Law 231/2001 (liability of legal entities), which is necessary in order to avoid criminal sanctions, or to mitigate them. In many recent cases, after having conducted an internal investigation and having filed a final report, the company has reached a convenient plea bargain agreement with the prosecutor’s office.
Hence, since Italy does not provide for a non-prosecution agreement or deferred prosecution agreement, internal investigations have become essential in the management of corruption investigations conducted by the judicial authority.
A second trend of the future is represented by the application of prevention measures to corruption matters. In the Italian legal framework, talking about the “recovery of criminal property” does not mean only talking about traditional and ordinary recovery measures, such as freezing and confiscation. The Italian legal system sets forth another extraordinary legal category: the category of prevention measures.
In a nutshell, prevention measures are extraordinary precautionary measures. They were originally introduced by the Italian legislature as anti-mafia legal instruments. Patrimonial prevention measures, such as the anticipated seizure and confiscation of assets, were introduced in 1982. The particularity of prevention measures is the fact that they can be issued on the mere assumption of the apparent, social danger of the defendant. This is a crucial point, since such pre-condition – the “social danger of the defendant” – leaves a lot of discretional power to the judge in deciding whether the prevention measure should be issued or not.
Through the years, prevention measures have been constantly and progressively extended in the ambit of their application by the Italian legislature.
The seizure and confiscation of assets can be ordered when there are “sufficient clues” that such assets are the proceeds of a crime. In such case, it is up to the defendant to demonstrate the legitimate provenance of the assets. This is an obvious case of reversal of the burden of proof. Moreover, seizure and confiscation can also be applied to assets owned by third parties, which can reasonably be attributed to the defendant (eg, assets owned by relatives). Another focal point is the procedural one. Prevention measures are not applied in the ambit of ordinary criminal proceedings, but in the ambit of a parallel procedure, with extremely limited defensive guaranties.
The European Court of Human Rights has issued several rulings, stating that the Italian prevention measures legal framework is not in line with the fundamental principles of the Rule of Law and of the right to a fair trial.
Having said that, it should be highlighted that Italy's prevention measures have recently been amended. In 2017, Law 161 carried out a deep legislative reform of the so-called “anti-mafia code”. The reform extended the possibility to apply personal and patrimonial prevention measures against people under investigation in relation to crimes against the public administration (such as, bribery, corruption in public contracts, etc).
The Italian legal doctrine has hardly criticised this reform: with the extension of prevention measures to the crimes against the public administration, the Italian legislature expresses the concept that the mafia and corruption are the same thing and, consequently, they should legally be treated in the same way.