La bellezza è negli occhi di chi guarda: diverse prospettive per combattere la corruzione

Relazione tenuta alla Northeastern University di Boston il 23 gennaio 2020

Beauty is in the eye of the beholder: each one of us has a personal and biased view of things and society, including the perceived number of crimes, the perceived number of immigrants and – last but not least – the perceived levels of corruption.

It may be a coincidence, but, on the one hand, the Corruption Perception Index 2018, drawn up by Transparency International, places Italy at the bottom of the European ranking with a score of 52, where 0 indicates a country perceived as completely transparent, and 100 stands for a country seen as endemically corrupt. So, Italy stands in 53rd position in the Global Ranking and is number one of the OECD Member Countries, with the highest level of perceived corruption.

On the other hand, a very interesting piece of research carried out in 13 Countries, involving around 50,000 respondents, draws up the ranking of the countries with the most distorted perception of reality[1], where Italy emerged as the country with the most relevant gap between perception and reality, followed by the USA, France, Australia, Belgium, Canada, Spain, Poland, United Kingdom, Japan, South Korea, Germany, Sweden.

This result is confirmed by judicial data on corruption, which draws a very different picture, as the number of convictions relating 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. In addition, the proportion of prisoners incarcerated for bribery offences is extremely low, totalling only 0.6%.

The number of detainees for corruption crimes (committed by public employees) has remained quite stable over the years: considering that from 2012 to 2019 we had three anti-corruption laws, there is a gap of only 22 detainees.

Nevertheless, the National Authority on Anticorruption Report from 2016 to 2019 detected 152 corruption cases (about 1 per week).

Instead, according to the Italian Statistical Institute[2], recording to actual personal experience – rather than perception – of corruption, only 7.9% of Italian families interviewed declared they had experienced corruption.

Those data may, of course, be read from a double perspective: either a) Italians overestimate the phenomenon; or b) Italians overestimate the ability and the effort made ‘to fight’ corruption, which remains underestimated and undetected.

On the other hand, we should consider that both of those statements could in fact be true, and they actually seem to be interrelated in a way that leads to a dangerous ‘vicious circle’.

In fact, from the point of view of how the phenomenon is perceived, corruption is understood in broader, sociological terms, encompassing any form of misconduct or abuse by those in public office to favour personal interests, including forms of unlawful practice not treated as strictly criminal under the Italian Criminal Justice System. In this way, perception of the phenomenon is also linked to the peculiarity of the Italian Criminal Justice system, which has an independent Anticorruption Authority, where prosecutors are legally obliged to carry out an investigation every time a possible crime is reported and where there is a high level of media coverage of criminal proceedings (even at the investigation stage). All these factors, where a particular role is played by the excessive length of criminal proceedings in Italy, with consequent failure to offer public opinion a swift response from the judiciary, increase the perception of a deep-rooted phenomenon, which does not necessarily match the reality.

Nevertheless, although the Italian Criminal Code has historically provided a robust and precise definition of corruption, judicial data may lead to underestimating the phenomenon, as instances of reporting bribery may be negatively affected by a cost-benefit analysis, fear of retaliation for disclosure, and/or a lack of confidence in the judicial system really ‘doing something’.

In other words, since there is no common view on the real form and the precise extent of corruption, how can a nation effectively fight it?

Moreover, there are a number of reasons why lack of knowledge about the phenomenon may also lead to the ‘Penelope paradox’ within Anticorruption strategies. These include:

  1. the growth of a populist sense of punitiveness to answer the public call for security (which seems to be jeopardized by a distorted perception of the phenomenon);
  2.  the consequent increase in criminal proceedings and pre-trial detention, due to the renewed “law and order” approach to legal enforcement;
  3. the alarming perception that the phenomenon is growing (due to daily investigative news coverage emphasized by the media);
  4. and, lastly, in the mid-to-long term, the circle will be closed by further legislative measures enacted to placate public opinion on corruption.  

So, as Penelope wove her web during the day and undid it during the night, the Italian anticorruption system empathizes or creates itself an enemy and then tries to fight it in a never-ending vicious circle.

As confirmation, let us recall that over the last seven years there have already been three anticorruption laws in Italy, all of them driven (sometimes exclusively) by the aim of creating new offences and increasing the rigorousness of sanctions, which ended up treating corruption in general and mafia activities in the same way under the Italian criminal system.

On the other hand, massive administrative rules were put in place in order to limit discretionality within the public administration. As a result, Italy has been referred to as the «Country with over 200 thousands laws, many of which are useless»[3].

Together with a stifling bureaucracy, these “law & order” campaigns against corruption have increased the number of criminal proceedings, due to the constitutional obligation for prosecutors to bring all crimes committed to court, and they have laid a pall of suspicion over the public administration, which has led to some other paradoxical misrepresentations, as ‘The Kafka paradox’, which arises when too many rules created to limit the autonomous decision-making of public officials causes confusion among those unable to clearly establish whether a decision they make breaches a rule or may lead to criminal allegations. Consequently, public officials are less willing to take prompt decisions for fear of being involved in criminal proceedings. In other words, it creates a pass-the-buck attitude, which contributes to the systemisation of laxness, over-bureaucracy, and slowness in the public administration.

Perhaps an example could help to clarify. This is the story of the former Minister of Infrastructures and Transports, Mr. Danilo Toninelli, whose washing machine took 8 months and about 3 thousand euros – when the average price of a new washing machine is about 4 hundred euros - to repair and then replace his washing machine due to bureaucracy, which required a long, complex and expensive public procurement procedure[4]

In other words, this approach could also foster the so-called “defensive approach” from public office holders, which means public officers not taking decisions, seeking for useless double-checks, seeking for unnecessary authorizations in the fear of being involved in a criminal proceeding for Misconduct in Public Office offence.

This offence punishes the public officers who, in the exercise of his or her function or power, wilfully achieve an undue economic benefit for himself/herself or another person or a detriment for another person in the breach of a statutory or regulatory rule.

As anyone can imagine, from complex, contradictory and massive regulations could easily flourish a criminal allegation for the public officer due to the “breach of rules” requirement.

Obviously, one could say that the mentioned public officer could be acquitted on his/her good faith. This is also true, as shown by the data collected during our research project, which showed that over 100 proceedings for Misconduct in Public Office offence in the Judicial District of Salerno only 12 of those ended with a guilty decision.

Nevertheless, due to the exceeding length of criminal proceedings in Italy, which is about 7 years, this will not repay the defendant from the social and personal “stigma” as it depends on the investigation, which Italian Prosecutors have no discretion in deciding whether or not carry on when an alleged crime is reported.

Thus, instead of taking the risk of breaching rules while taking prompt decisions, Italian public officers will “pass the buck” to each other until they are sure that the decision received ‘green light’ from several Offices.

The FPA Report in 2017 confirmed the defensive approach, as it launched a survey among public officers on whether this approach existed and eventually on which reasons it was linked. The answers were quite illuminating since 67% of respondents related this approach to the exceeding number of rules; 62% of respondents said it was created by contradictory rules and 58% of those believed it was due to sudden change of rules.

In addition, from an anonymous interview of public employees working at the Campania Region, asking if and how much when performing their duties they were affected by the fear of being involved in a criminal proceeding for Misconduct in Public Office offence, resulted that 65% of respondents were relatively or highly affected. Moreover, 61% of respondents confirmed the FPA Report result, as the aforementioned fear turned out to slower the decision-making process.

The second distortion arising from the aforementioned Anticorruption strategies is ‘The Pinocchio paradox’: it emerges when overregulation and severity regarding a specific issue spread the perception of public officials as being incompetent or, in the worst cases, corrupt. On the contrary, it is overregulation itself that creates unpredictable risk and thus mistakes. Hence, the contemporary Pinocchio, alias public officials, become the first ‘victims’ of anticorruption penal policies. As Pinocchio was always considered a liar or a “bad boy” even if he acted properly, so public officers are considered suspected or incompetent even when they did their best.

This approach is likely to generate more complexity within the public administration and may 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 excessively bureaucratic procedures indirectly contribute to the systematization of corruption at large’. Unconsciously, the more legislation is perceived as unreasonable and unjust, the less anyone is willing to abide by its requirements[5].

In this light, we should try to offer a different cultural approach to preventing and counteracting corruption: since over the last years “passing new laws” has revealed to be a failing strategy, actually creating more confusion and complexity within the Public Administration, why not try to make compliance more attractive rather than creating new compelling rules?

First of all, it is necessary to set up a common and scientific system to assess levels of corruption. Otherwise, any efforts to tackle the problem will be futile and, has we have seen, could even worsen the problem.

Then, we may profitably borrow a well-known marketing strategy, the ‘nudge’, which is used in stores and online. Basically, managers direct people – without coercion – in their customer choices, locating the selected product in a better and more visible position. In other words, the decision about what kind of item to promote affects people’s choices, because of a subtle and psychological ‘cognitive illusion’. Essentially, people believe they are making a choice, while in reality they are being induced to make one in particular.

Transferring this concept to anticorruption strategies, we may approach the problem from a diametrically opposed standpoint, promoting virtuous examples in the Public Administration. As mentioned earlier, if policy makers and the media nudge people in the direction of best practices rather than threatening public officials with punishment for every mistake, or practically emphasizing only the investigative phase of corruption cases (with the allegations having to be proved at trial), it is more likely that a virtuous circle will be created that is finally able to break the sub-cultural prejudice whereby “this is the way we act, this is the system, we cannot do anything about it” and perhaps discourages the ones really affected by the corruption germ, as they will be marginalized by the majority consisting of the virtuous custodians of the public interest.

At the beginning of this “cultural revolution”, the nudging approach should be integrated by a massive simplification of rules and decision-making processes within the Public Administration. On this ground, a great help is offered by the AI, which could provide algorithms capable of giving the public officer the due decision for a particular case or narrowing the number of options due to circumstances in case of discretionary power. The Italian High Court on Administrative cases (Consiglio di Stato) recently (2019) admitted this possibility as the algorithm will not exclude the power to check whether the decision adopted is fair by the person in charge of the power or the function.

We should promote the reform of Misconduct in Public Office offence in order to better guarantee the predictability of the scope of the offence and its functioning only to serious breaches, which really deserve to be criminalized.

 

[1] B. Duffy, The perils of Perception, 2018, p. 220.

[2] https://www.istat.it/it/files//2017/10/La-corruzione-in-Italia.pdf

[3] S. Cassese, Troppe norme, spesso inutili. 200.000 leggi dal 1861 in poi, in Corriere della Sera, 12.02.2018.

[4] F. Bechis, La lavastoviglie di Toninelli come esempio patologico di una burocrazia che fa sprecare tempo e soldi pubblici, ItaliaOggi, 29 agosto 2019.

[5] See, A.R. Castaldo, Measuring, preventing and counteracting corruption in Italy, on International Symposium on Establishing the International Cooperation Mechanism Regarding Persons Sought for Corruption and Asset Recovery – Collected Papers, 2018