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