That a nation with the third-largest economy in the European Union and the eighth-largest in the world would be countenancing bribery in today’s world seems beyond the pale. Yet an analysis of recent case law and record of convictions shows just that. Done by the Italian NGO ReCommon and submitted on a confidential basis to the OECD’s Working Group on Bribery, it concludes that it is “nigh on impossible to obtain a conviction in Italy for international corruption.”
The group’s conclusion rests not only on Italy’s dismal record of convictions of Italian companies and nationals for bribing foreign public officials, but decisions in three recent cases. All raise a virtually insurmountable hurdle to a conviction for bribery. In any case. No matter whether the bribe-taker is an official of a foreign government or of the Italian government. In all three, courts have ruled that to prove bribery, the prosecution must show there was an express agreement to bribe.
In today’s world, just how many businesses send a letter to an official saying “I will pay you X in return for your providing the company Y”? As an American Supreme Court justice observed some 40 years ago, were the law to impose such a requirement, it could be easily frustrated “by knowing winks and nods.” Yet an express agreement to bribe is exactly what Italian judges now demand to convict bribe-takers and payors. Why has the Italian judiciary, historically one of the most renowned in the civil law world, decided to frustrate the prosecution of bribery cases?
Italy’s compliance with the OECD Antibribery Convention will shortly be reviewed by peer nations. It simply cannot be found in compliance so long as its courts require an express agreement to bribe to find defendants guilty. The OECD reviewers should follow ReCommon’s analysis, which in the public interest is revealed here, and condemn the recent turn in Italian law making the nation a safe haven for bribery.
Spot on. We should not have bribe payers getting away with it!
Interesting to note that adding additional elements to bribery may be a violation of the OECD Anti-Bribery Convention per se.
Just looking over the ReCommon report, it also looks like the requirement that there be an explicit agreement to bribe is fairly long standing in Italy, but that the judiciary has recently raised the bar on what is necessary to meet that requirement fairly dramatically. I’d be very interested in any insight as to when and why this development occurred, as well as why the requirement that there be an explicit agreement wasn’t so much of a problem in the past (especially as I’m somewhat limited in looking into it, as I can’t read Italian).
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As someone who has monitored this case from a practitioner’s view point, I think it is important to read the full judgment of the court. I had the rare privilege of reading a translated English version
Some actions preceding the so called “settlement payment” under the resolution agreement signed between Nigeria and the other parties may have prejudiced the minds of the judges. However, it will be interesting to hear what the appeal court have to say.
I would dare to make a clarification.
I’m afraid that some concepts may have been misled for (frequent) issues with translation.
In Italy is not required that “the prosecution must show there was an express agreement to bribe.”
Conversely, the Italian law requires to show there was a causal nexus between receiving an unearned reward by the public official and the act contrary to their official duties.
Indeed, if we consider one of the last cases of international corruption, judges explained that the offered benefit to public officials “represents only a logical indication that the undue behavior of the public agent was the cause of the remuneration paid by the private”. Consequently, the critical point is not whether the agreement to bribe was explicit, but whether it existed as the Italian law requires.
Undoubtedly, one may argue that results do not change because, since the inherently transnational nature, it is difficult, if not impossible, to prove the international agreement to bribe, its exact content and the subjects between whom it took place.
However, it is crucial to outpoint the actual terms of the issue on prosecuting international corruption in Italy.
The primary issue is that the Italian “international bribery” offense was born as a subjective extension of domestic corruption crime. However, if the Italian legislator has provided specific and autonomous crimes for the domestic context when some elements of bribery offense are missing ( like the causal nexus above mentioned ); it does not happen with the international corruption offense. Consequently, when there are cases in which it is difficult to prove to the fullest the international agreement to bribe, the judge must end up declaring that there was no case to answer.