Measuring, preventing and counteracting corruption in Italy
Este paper tiene por finalidad analizar la corrupción como fenómeno internacional, el cual se extiende por varios países y afecta la transparencia y la legalidad de la Administración Pública. En particular, se intenta dilucidar la forma y la percepción de las prácticas de cohecho en Italia, de acuerdo a las estadísticas judiciales y al índice de percepción, así como analizar la eficiencia de las medidas preventivas y las fortalezas y las debilidades de las actuales estrategias represivas
Etymologically speaking, the term ‘corruption’ derives from the Latin word ‘corruptum’, which recalls something irremediably broken, and – to quote Shakespeare’s sonnet 94 – ‘Lilies that fester smell far worse than weeds’.
The United Nations ‘Convention against Corruption’ Resolution states that corruption is an endemic and pervasive phenomenon that has significant negative effects on the economic development of a country, as it creates an illegal route that damages those who follow legal business processes. It therefore facilitates an unfair business environment that disincentives private investments.
So, it is vitally important to really understand and measure corruption, but today there is as yet no common view on defining its global and shared indicators.
Currently, there are two types of indicators: one subjective and the other objective.
The subjective one is based on how the phenomenon is perceived and could actually be somewhat inaccurate as it depends on the personal experience of each participant responding to a survey and their specific circumstances at the time of responding. The objective one, on the other hand, is related to current opinion as reflected in the media and social networks.
In reality, both ways of approaching the problem have their strengths and weaknesses.
On the one hand, ‘perceptions’ are easy to measure, but they are profoundly influenced by an individual’s personal view of society and the way the media report phenomena of this type. To cite an example of how the individual perception is formed, we might consider the Italian criminal justice system, where prosecutors are legally obliged to carry out an investigation every time a possible crime is reported, so, essentially, prosecutors cannot use their discretion on whether or not to proceed with regard to a crime that may have been committed. Consequently, obligatory inquiries lead to very frequent media coverage during investigations, especially those relating to corruption offences, which may tend to colour the population’s subjective perception of Italy as a ‘profoundly corrupt country’.
In fact, despite significant improvement, the latest data gathered by the 2017 Corruption Perception Index drawn up by Transparency International still place Italy at the bottom of the European ranking with a score of 50, where 0 means a country perceived as completely transparent and 100 stands for a country seen as endemically corrupt. Italy is followed by only Slovakia, Croatia, Greece, Romania, Hungary and Bulgaria, and thus stands at 54th position in the Global Ranking.
On the other hand, objective indicators may underestimate the phenomenon, being related either to reported personal experience or judicial data, and, naturally, not every crime is discovered or reported. This is particularly true in countries where there is a lack of faith that the criminal justice system will ‘do something’ and corruption is perceived as widespread. In other words, lack of faith in justice affects crime reporting, while either the parties’ shared interest in keeping quiet about bribes or the misapprehension that ‘everyone does it’ seems to lead to the increasing tendency for malpractice to go undiscovered and implies that news about court cases should be handled cautiously. In fact, in comparison with the widespread perception of the above-mentioned phenomenon, court statistics paint quite a difference picture, as the number of convictions related to bribery offences in Italy has remained relatively stable over the years and is fairly low, not exceeding a narrow range of 650 to 900 per year.
As I mentioned before, this could be linked to the failure to report instances of bribery, which in turn depends on the following factors:
• Cost-Benefit Analysis when deciding whether or not to go ahead with the bribery option, as the kickback to pay is usually more economical than awaiting the outcome of slow and over-bureaucratised legal machinery. Indeed, excessive rigidity and/or bureaucracy might encourage the circumvention of legal requirements;
• The criminogenic effects of deep-rooted corruption. As clearly shown by the social experiment carried out by Philip Zimbardo in his Broken Windows Theory, the more a community passively accepts misconduct, the more it contributes to its general systemisation. As businessmen answered when questioned during important surveys: ‘This is the system. You can only choose whether to accept it and work, or withdraw, accepting the risk that someone else is going to take your job’.
• Distrust of the Criminal Justice System. Public trust in the Criminal Justice System plays an important role in public cooperation and therefore affects reported crime and compliance with the law, as well as people’s sense of responsibility when they attend Court (as witnesses, for instance). Unfortunately, following the result of a survey carried out by the European Commission and published in November 2013, only 33% of Italians have faith in their Justice System. On the other hand, 63% of them have no confidence in their Justice System, and 4% do not have a clear idea. These numbers place Italy at the bottom of the EU ranking.
There is another problem in analysing the two types of indicators to measure corruption: they have a different focus. In fact, from the point of view of perception of the phenomenon, corruption is understood in broader, sociological terms, encompassing any form of misconduct or abuse by those in public office towards private interests, including forms of unlawful practice not treated as criminal under the Italian Criminal Justice System. From the legal perspective, however, in the Italian criminal code, for example, corruption has historically been more solidly and precisely defined, and has only lately extended to borderline conduct. Historically, the offence of ‘corruption’ in Italy referred to an unlawful agreement between a public officer and a private individual, where the first performs a public service pertaining to his office in exchange for illicit payment by the second. Then, when the phenomenon took on a non-material connotation, including the exchange of mere promises, immaterial benefits, or unlawful lobbying activities (for example, consultancy, hiring a relative, political advantages), clearly far removed from the practice of offering a bribe, the criminal code adopted a zero tolerance policy, extending its scope to such conduct.
Thus, for corruption offences, the Italian criminal code now not only punishes the public official who forces or induces someone to promise or make an illicit payment, but also the private individual who gains a benefit.
This is the background against which it is necessary to evaluate national strategies to combat corruption. They have led to global reform, introducing new preventive measures and strengthening the existing system of countermeasures.
It is worth highlighting the efforts made to build up an effective anti-corruption system in Italy through the introduction of another supervisory body, the National Anti-Corruption Authority (ANAC), in order to provide general guidelines to be followed by all bodies of the public administration. This seems to generate a virtuous circle, sharing and spreading best practices within the Public Administration. In addition, following the example set by compliance programmes in the private sector, all branches of the Public Administration are now obliged to draw up an Anticorruption plan containing rules built upon a risk-based approach. In theory, this should lead to improved efficiency, as everyone should now know in advance what to do and how to act. The reality, however, seems more complicated. Firstly, these rules should be partially combined with about 110 thousand regulations already existing in Italy (according to the latest official report). So, rather than reassuring public officials as they perform this function, the new rules could actually create greater uncertainty, as they may be contradictory and indirectly paralyse the public services as officials seek clarification from the national Authority or their superiors in the office before acting.
One of the most remarkable innovations introduced in 2012 was the enactment of a specific statute attempting to protect public employees who ‘blow the whistle’ on wrongdoing in the Public Administration from any form of retaliation or harassment that could affect their working-life. The law contains a generic clause to protect whistleblowers from any reprisal related to reporting malpractice within workplaces.
In terms of the punishment system, the Italian Penal Code cites two versions of the offence of corruption: on the one hand, there is ‘corruption for the performance of a service’ and, on the other, ‘corruption for an activity contrary to the duties of an office’. The main difference is that, while the first punishes public officials who basically ‘sell’ the services they are legally bound to provide, the second punishes him for performing a public service improperly. Besides, the first offence owes its particular structure to probatory elements: in this case, the Prosecutor only has to demonstrate that a party made an undue payment to a public official in exchange for a public service, and for which no adequate explanation can be given. On the other hand, it is more difficult to demonstrate the specific activity against public interest committed by a corrupt public official. To better understand these difficulties, let us think about an exemplary case already well-known in case law: it regarded a public official who received a ‘small gift’ from a private individual after the former had performed a service within the scope of his duties without any previous illicit agreement. In this case, the judges reasonably acquitted the public official, as the ‘gift’ would have been unable to persuade him to act as such, as he had already carried out his duty.
Returning to sanctions, I should mention the more stringent measures introduced in 2017 extending the so-called ‘law and order’ policy, applying the confiscation regime already in place in the Anti-Mafia Code for those suspected of conspiracy to the majority of corruption offences. In this regard, in order to counteract the perception that ‘corruption still pays’, Italy has recently introduced legislation to allow for the confiscation of any economic benefit, property, or profit suspected of being the proceeds of corruption. This means that, in order to confiscate, instead of prosecutors having to prove ‘beyond reasonable doubt’, they only need to provide evidence that the economic benefits in question derived from acts of corruption.
It is clearly debatable whether it is appropriate to treat mafia activity and corruption alike. In fact, while it may seem reasonable to link any asset to organised crime, as it seems more reasonable and technically accurate to assume that an organised group generates economic benefit through criminal activity in order to survive, the same cannot be said for corruption. Instead, it would seem fairer not to consider an entire public office to be affected by deep-rooted corruption merely because one of the officials has been found to have received a bribe.
In conclusion, the Italian solution to the corruption issue eminently relies on a range of legal instruments aimed at preventing, discouraging, or imposing sanctions for the phenomenon, mainly establishing anti-corruption authorities or implementing anti-corruption legislation. Despite the admirable intent to ‘find a solution’, this approach is likely to generate more complexity within the public administration and even become a subtle cause of endemic corruption. Unnecessary legislation can, in fact, have an unintentionally criminogenic effect, as ‘obscure legislative provisions, burdensome overregulation and unfair or too bureaucratic procedures indirectly contribute to the systemisation of corruption at large’. Unconsciously, the more legislation is perceived as unreasonable and unjust, the less anyone is willing to abide by its requirements. Therefore, as well as issuing new rules, I would suggest, on the one hand, the simplification of regulation of relations between the State and the public, informed by the principle that the citizen is not the enemy of the State or vice versa. On the other, the introduction of specific training in good administration and best practices for public officials. I believe, in fact, that implementing a culture of care regarding good, fair, and efficient administration is, all things considered, the winning strategy for a satisfying solution to this problem. As the GRECO report on Italy states: ‘combating corruption has to become a matter of culture and not only rules; this requires a long-term approach, continuing education throughout all sectors of society as an indispensable component of the anticorruption strategy and sustained political commitment’.
 On the other hand, someone believes these phenomena can be compared in some way. See, Davigo, Il Sistema della corruzione, Laterza, 2017, 29.
 See, L. Pasculli, Corruptio Legis: Law as Cause of Systemc Corruption, in 6th Annual International Conference Law, Regulations and Public Policy (LRPP 2017), 5-6 June 2017, Singapore, pp. 2251-3809.