Italy has a long history with organized crime, and that history has had a fundamental impact on the country’s experience with corruption. Italy has three traditional mafia associations (the Camorra of Campania, the ‘Ndrangheta of Calabria, and Sicily’s Cosa Nostra), along with a number of smaller groups. For decades, these groups have secured their power not only by exercising violence against local populations, but also by their ability to influence politicians. Historically, it has been common for politicians in mafia-dominated regions to engage directly with the criminal groups, for instance by exchanging lucrative public works contracts for vote mobilization (for example, see here and here).
In the 1980s and 1990s, following an explosion of mafia-related violence, the Italian government began to crack down on organized crime, and this crackdown included new measures that targeted the criminals’ political benefactors. In 1982, the parliament passed Article 416-bis c.p., which defined for the first time the crime of “mafia-type association” (associazione di tipo mafioso). With the passage of this law, anyone who was found to be a member of a mafia-type association could be punished with 10-15 years in prison. In order to be considered a mafia-type association, the group has to follow the mafia method—that is, the use of 1) the force of group intimidation; 2) subjugation; and 3) the code of silence (omertà)—to commit crimes. In recognition of the importance of political alliances for mafia crimes, the procurement of votes is explicitly mentioned in the law as a possible mafia activity. In 1992, the law was amended to more directly target mafiosi’s political allies by criminalizing a rather narrow set of corrupt relationships. In particular, the law specified that politicians who worked with mafia groups by exchanging vote procurement for money would be subject to 7-12 years imprisonment. This amendment (denoted 416-ter) was subsequently reformed in 2014 and again in May 2019, with the result that the culpable conduct for politicians was expanded to include the exchange of votes for money or other benefits. This change reflects the reality that politicians rarely give money directly to mafia contacts but are more likely to provide other benefits, such as securing government contracts or providing jobs.
However, this regime was deemed insufficient, as most government officials are not actually members of mafia groups, and there are many ways in which mafias may benefit officials that do not involve elections. For instance, one might imagine a magistrate who consistently provides favorable rulings for mafia defendants, or a police officer who provides information about ongoing investigations in exchange for money or other benefits. To address these gaps, Italian courts have developed the concept of concorso esterno (external participation). Concorso esterno is not a separate crime in the Italian criminal code, but rather a concept that courts have derived from the combination of Article 416-bis and Article 110 c.p., the provision that establishes that when more than one person is complicit in a crime, each is subject to the same punishment for that crime. Italian courts have reasoned that the conjunction of these two provisions implies that prosecutors may charge individuals who support mafia actors—including politicians and other government officials—almost as if they were mafiosi themselves, and those convicted may be subject to the harsh sentences that await convicted mafiosi.
The concorso esterno regime reduces the ability of corrupt officials to avoid prosecution, and empowers Italian law enforcement to target the political corruption that has undergirded mafia activity. Where the law is used effectively against high-level politicians, it may also help to combat the public perception that politicians who work with the mafia groups enjoy impunity. Moreover, by labeling politicians and other “non-mafia” criminal associates as functionally equivalent to mafiosi themselves, this approach sends a powerful symbolic message, one that is appropriate given the historic symbiosis between politicians and organized crime in Italy. Nevertheless, the concorso esterno theory, which has long been controversial in Italian legal scholarship (for example, see here and here), has some very real downsides.
There are two main concerns about the current version of the concorso esterno concept in Italian law. The first is that it is a judge-made doctrine without a firm foundation in the Italian code. Second, and partly for that reason, the scope and contours of this offense are so unclear that concorso esterno may function as a kind of “catchall crime,” enabling prosecutors to target those against whom they have no evidence of other criminal behavior. Indeed, for many years the Italian Supreme Court resisted the concorso esterno theory on the grounds that it contravened the principle of “nulla poena sine lege” (no punishment without a law), and though the theory eventually gained acceptance, doubts persist, including among some judges. (For example, in 2015 the Catania Tribunal refused to recognize the crime of concorso esterno, noting that the offense is not established in the criminal law.)
This hesitation is understandable: Given the severity of Italy’s anti-mafia legal regime, it is important that crimes of mafia-related corruption be clearly defined so as to put on notice those who can reasonably expect to be prosecuted. Moreover, there are a variety of ways that individuals (including but not limited to politicians and government officials) may interact with mafiosi, and it is not always obvious at what point of involvement an individual is liable for prosecution. Courts have held that the accused must have contributed to the mafia groups knowingly and willingly, but beyond this caveat, the jurisprudence on this this crime has been mixed. For instance, in the 2000 Frasca case, the court held that the mere agreement between a politician and the mafia to exchange votes for favors rendered the politician liable for prosecution. In the 2005 Mannino case, the Court held that concorso esterno could not be applied to a politician’s agreement with the mafia absent evidence that the mafia derived concrete benefits from the agreement. And in the 2007 Tursi Prato case, the Court again upheld a conviction for an agreement made without proof of causal benefit to the mafia. In addition, even in those cases where one is confident that the defendant did indeed collude with the mafia, there is a wide array of types of collusion, and it’s not clear they should all be punished equally harshly. Perhaps, for example, the mayor who makes an agreement to allow mafiosi access to a public construction contract should be punished at a lower level than the police officer who gives information about an investigation that leads to the murder of a magistrate. Yet the current system makes no distinction between the two.
The concorso esterno system exists for a good reason—it is a response to the realities of Italy’s experience with organized criminal corruption of the political, social and economic sectors. Yet the version of that offense that exists today rests on shaky foundations, and is simultaneously too vague and too inflexible. By developing this crime through piecemeal and contradictory judicial rulings, the courts run the risk of establishing a system that is confusing to the point of being unjust. The Italian legislature should therefore explicitly codify the concorso esterno crime, and in doing so should specify the actors who can be prosecuted (for instance, politicians, government officials, and businesspeople), the conduct that is criminal, mitigating and aggravating factors, and so forth. That clarification will secure this important legal tool on firmer foundations, and help ensure its appropriate and proportional application
GAB | The Global Anticorruption Blog 
Good article; explains a lot. But surely the policeman in the example in your penultimate paragraph would also be prosecuted as an accessory to murder (if the neceesary mental element can be established) thus making him liable to much more serious penalties than the mayor? In other words is there not the option to prosecute as a joint perpetrator of the principal offence (where there is the possibility of proving knowledge of that offence, that is) thus accessing the required range of penalties?
Thank you very much for your comment. You are right to point out that distinctions between these activities do exist in Italian law, and that there are certainly avenues by which prosecutors can (and do) pursue more aggressive sentences based on the nature of the crime. My critique applies exclusively to the concorso esterno system itself. Since this crime is not encoded in legislation, it is difficult to tell exactly how it should be applied in different situations. In practice, this may not be a huge obstacle to prosecution, since, as you note, in many cases prosecutors may be able to combine charges to achieve just sentences. The question becomes an issue where, for example, concorso esterno is the main charge available. In these cases, it would be useful to provide more information on how distinctions in penalties should be made for different kinds of concorso esterno-related offenses.
Yes, I see what you mean. Thanks. It is easy to imagine degrees of gravity of the offence of concorso esterno (separate and distinct from the gravity of any specific principal offence that may have been assisted) but as long as the offence remains uncodified I can see that matching those degrees of gravity with an appropriate penalty will be difficult.
Where the link with any particular principal offence that occurred as a result of the concorso esterno cannot be shown to amount to participation (aiding, abetting etc) then the defendant can’t be tried as an accessory and personally I feel the gravity of that principal offence should be regarded as irrelevant. Though I can see that recklessness as to the effects of your concorso esterno might aggravate your offence. If, for instance, you knew and didn’t care that your new business associates were a gang of bloodthirsty assassins, rather than a bunch of small-time fraudsters.
Thanks again.
This is such an interesting, clear and informative post. While the arguments for need for codification to prevent its misapplication as a “catchall crime” are persuasive, I wonder whether the legislature is best placed to do this. Codification would imply getting into the weeds of actors and scales of punishment, and purely on a skill and knowledge level, might that not be best left to the bureaucracy/administration/larger legal fraternity to come up with? Also curious to hear your thoughts on whether the political will to pass such a legislation exists. If it does get legislated upon, would there not be a risk of watering down the current provisions to remove politicians as a category from it all together?
Thank you very much for your comments, I really appreciate it. And you bring up some very important questions for this process. While I take your concerns about the legislature to heart, I do think that, at the end of the day, they are the body that will need to deal with this issue. This is primarily due to the principle that there can be no punishment without a law. It is very unusual to have a crime in the Italian context that is not codified. This has led to a lot of the resistance concorso esterno has faced. For a crime as significant as this one can be, I tend to think that it should be enshrined in the same manner as other criminal laws, which the legislature is certainly competent to enact. I don’t think there’s any reason Parliament would be less capable of developing a concorso esterno law then they are of developing other criminal laws. For instance, 416-bis actully defines what a mafia is, something sociologists and others have been fighting over for decades. Such legislation would then be interpreted and, presumably clarified in some sense by the courts, so other legal bodies would be involved in the larger process. Of course, that leaves your second question, and I think this gets to the crux of the problem. I’m certainly not the first person to suggest this law should be codified, and there have been efforts to get it enshrined in law, but the parliament has never been able and/or willing to do it. Any serious effort would presumably be highly controversial, and I think the risks of a watered down bill being passed are very real. I didn’t get into details in this post about what such a law would ideally include, since I think the politics of this are the subject of a pretty lengthy discussion, but I think this gets to the heart of the current situation. Any bill that would be passed would have to be closely scrutinized to ensure it didn’t have the problems you mention, and that it wasn’t opening the door to other problems. I’m not particularly optimistic that the will to write such legislation will exist in the near future, but I certainly hope I’m wrong on that front.
it would be useful to provide more information on how distinctions in penalties should be made for different kinds of corruption:
https://www.academia.edu/41119756/Corruption-involving_criminal_acts_and_legal_corruption_-_economic_and_legal_aspects
Thank you for your comment and for sharing this work. This is certainly a fascinating legal question, and one that I agree would be the subject of interesting analysis. There are a number of different axes on which we could imagine distinctions being made. For instance, extent of involvement with the criminal group or the nature of the corrupt transaction could all be bases for distinctions in penalties. Without offering a comprehensive schema for categorizing corruption offenses, I’ll suggest that one particularly important distinction important to the concorso esterno regime might be the reasonable foreseeability of acts of violence resulting from the aid offered–so if the external associate relates to a mafia group in a manner that is particularly likely to cause violence to another person, this might be a significant aggravating factor in sentencing. This goes back to the distinction between my hypothetical corrupt police officer and mayor. If the the former gives information that he might expect will lead to the murder of the magistrate (for instance, telling a mafioso about the daily patterns of the magistrate), he should face a higher penalty than the mayor who knowingly secures a public contract for a mafia-connected business. Of course, this is just one dimension, but given the centrality of violence in this particular form of corruption, it does bear mentioning.
A statute regulating the concorso esterno should be approved by politicians in the Italian Parliament. The problem is that politicians are usually unwilling to take measures that can damage themselves afterwards. That is the difficulty of anti-corruption legislative reforms in corrupt countries like Brazil and Italy. A better development of courts’ precedents on the subject seems to be more feasible.
Thanks for your comment Rodrigo. I agree that in principle a coherent development of precedent could do the trick. Unfortunately, despite more than 30 years of jurisprudence, this precedent remains inconsistent. So I’m not sure that the judicial clarification path is as feasible as we might be inclined to expect. Of course, your point about politicians’ incentive is completely on-point. It is admittedly a difficult tradeoff, and I’m not sure we will get a productive solution anytime soon.
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