In 2015, a Naples court found former Italian Prime Minister Silvio Berlusconi guilty of paying a senator €3 million to support Berlusconi’s Forza Italia party and sentenced him to three years in prison for this crime. Berlusconi did not serve a day. Under Italian law, defendants are typically entitled to two appeals, which must be resolved before the defendants begin serving their sentences (with a handful of exceptions). Moreover, the statute of limitations clock keeps ticking while these appeals are in process. In Berlusconi’s case, the statute of limitations ran out before his case made its way through Italy’s glacial judicial system—where criminal trials can last an average of four to five years in the court of first instance alone, and the appeals can add an extra three years to the process. This was not the first time Berlusconi had benefitted from Italy’s slow judicial proceedings (see here and here). Nor was he the first politician to do so. In 2004, former Prime Minister Giulio Andreotti famously escaped punishment for mafia association in part due to the statute of limitations.
Corrupt politicians and other white-collar criminals got off scot-free in these and other cases due to the combination of three factors noted above. The first is the extremely slow pace of Italian criminal proceedings. The second is the rule that defendants do not have to begin serving their prison terms until their appeals have been exhausted. And the third concerns the rule that the statute of limitations clock begins when a crime is committed and continues to run for the duration of a defendant’s investigation, trial, and appeal, with no option of suspension. The rationale for this approach to the statute of limitations has traditionally been that the prosecution should not be able to hold a defendant in legal limbo while the case wormed its way slowly through the courts. In practice, however, this system often served to guarantee impunity for corrupt politicians and other wealthy defendants who could afford the high-priced lawyers that would drag out the legal proceedings just long enough to ensure their clients could never be imprisoned.
Furthermore, under the traditional Italian system of calculating the statute of limitations, the clock starts ticking at the moment the crime is first committed, rather than from when the crime is completed. (These are generally the same time for simple crimes like homicide or robbery, but for complex white-collar schemes, such as a bid-rigging conspiracy, there may be a long gap between the moment the crime starts and the time when it ends.) This rule makes prosecuting corruption and other complex financial crimes even more difficult, because such crimes are hard to detect and the investigations often take considerable time. So, what seem to be technical rules of criminal procedure—rules that, in the abstract, might be defended as protecting private citizens from prosecutorial overreach—in practice helped to perpetuate the system of impunity for Italian officials and businesspeople that fuels Italy’s already extraordinarily high levels of perceived corruption.
But there are hopeful signs that Italy may finally be addressing these problems. In December 2018, the Italian Parliament adopted a new anticorruption law, popularly referred to as Spazzacorrotti (“Bribe Destroyer”). (For English-language analyses, see here and here.) That new law, which will be fully implemented in 2020, contains a number of important provisions, including increased penalties for corruption and incentives for voluntary self-disclosure and cooperation. Crucially, the new legislation also amends Italy’s statute of limitations law:
Under the revised law, the statute of limitations for completed crimes begins to run once the crime is completed, rather than when it is first committed. For attempted crimes, the statute of limitations now begins to run upon the cessation of criminal activity, and for ongoing crimes, with the cessation of the ongoing activity. In addition, the statute of limitations will now be “tolled”—that is, the clock will stop ticking—after the court of first instance renders its judgment. By changing the time at which the statute of limitations begins to run, Spazzacorrotti makes it harder for corrupt actors to shield bad behavior and gives investigators time to conduct more thorough investigations into corruption-related conduct. And the fact that the statute of limitations clock stops running while the first verdict is being appealed reduces the incentives for defense attorneys to drag out appellate proceedings, and hence may reduce the ability of those defendants with well-paid lawyers to leverage the country’s judicial inefficiency to secure their own perpetual impunity.
Unfortunately, as with most efforts to tackle corruption in Italy, optimism should be tempered with skepticism. For starters, there’s a pending constitutional challenge to the application of Spazzacorrotti to defendants whose alleged misconduct took place before the adoption of the law. While the Italian Constitutional Court may strike down the law, it may also provide an interpretation that brings the law into conformity with the Constitution, or it may strike down only specific provisions of the legislation. The constitutional concern is not trivial, but even if the Constitutional Court rules that the law as it stands is unconstitutional, Parliament could amend the statute to address the constitutional concerns, at least going forward.
But even putting the constitutional question to one side, Spazzacorrotti is not a panacea; opportunities to game the system remain. Defendants can still benefit from the statute of limitations if they are able to keep their crimes concealed or conduct them quickly, and defense attorneys will still have incentives to drag out proceedings in the court of first instance, particularly if the initial trial occurs near the end of the time limit. Such risks are probably not entirely avoidable as long as a crime involves a statute of limitations. Yet Spazzacorrotti certainly goes a long way towards improving the balance between the rights of defendants and the public’s need for prosecution of corruption. Nevertheless, Italy still needs substantial judicial reform that will streamline the system and reduce the amount of time it takes to process cases.
Corruption has been endemic to Italian politics for many years, and it will take much more than this law to eradicate it. Even so, it is important to recognize the potential for the reforms undertaken by Spazzacorrotti to make a real difference. In tackling the statute of limitations system, Spazzacorrotti reduces the ability of the wealthy and well-connected to distort the rules of criminal procedure to guarantee their own impunity from prosecution. As such, it has the potential to contribute to the fundamental fairness and equity of the Italian judicial system, and perhaps to allow Italians to have more faith that their institutions are functioning correctly. And if it means fewer nullified convictions for Berlusconi and other corrupt actors, so much the better.