Today’s guest post is from Roberta De Paolis, a post doctoral fellow in Criminal Law at the Sant’Anna School of Advanced Studies of Pisa.

For nearly a hundred years, the Italian criminal code included an “abuse of office” offense. Public officials committed this crime when, in the course of performing their duties, they acted in a way that was otherwise unlawful or entailed a conflict of interest, and in so doing secured a monetary advantage to themselves and/or inflicted monetary damage on others. For example, if a public official rigged a public procurement auction, steering a government contract to a relative or friend, that public official would not only have violated the rules on competition procedures, but would also have committed the crime of abuse of office. But the crime could apply more broadly. For example, if a local official denied a citizen a building permit for self-interested reasons, the official may have committed the abuse-of-office crime.

On its face, the abuse of office offense seems like a potentially powerful anticorruption tool. But it had proved to be controversial. Many, including Justice Minister Carlo Nordio, claimed that the crime was too vague, and potentially too broad. For example, in many small Italian towns, many people—particularly at the elite level—know each other socially and often have family ties, and as a result many decisions that local politicians make could be characterized as helping their friends or relations or otherwise involving a conflict of interest. Consider a mayor who announces a tender for public construction project, and the best bid comes from an acquaintance of the mayor. If the city government accepts that bid, the local political opposition could report the decision to the authorities and assert that the mayor abused her office by favoring an acquaintance in the tender procedure. As a result, according to critics of the abuse-of-office offense, many local public officials were discouraged from implementing socially valuable public works projects, out of fear of ending up under criminal investigation. The critics also pointed out that, despite the large number of prosecutions for abuse of office, these prosecutions rarely produced convictions: the most up-to-date statistics report that about 5,000 criminal prosecutions for abuse of office resulted in only nine convictions. This is suggestive evidence that many of the investigations were meritless, and possibly politically motivated tools of harassment.

That, at least, is what critics of the law argued, and this past August, those criticisms carried the day: Parliament voted to repeal the abuse-of-office offense. But was that the right decision? Many experts say no. Notably, the President of Italy’s National Anti-Corruption Authority, Giuseppe Busia, asserted that repealing the abuse of office offense leads to impunity in cases of conflict of interest like favoritism in public competition or tenders. Similarly, a spokesman for the European Commission claimed that the repeal of this law “decriminalizes an important form of corruption and may have an impact on the effectiveness of the European fight against corruption.” (Indeed, it is worth noting that 25 of the 27 EU countries have criminal laws prohibiting abuse of office.) Supporters of the repeal respond that these concerns are overblown because other provisions of the criminal code, as well as Italian administrative law, still apply to the egregious cases. But that is not obviously true, and, worrisomely, the repeal of the criminal abuse of office offense has not been counterbalanced by the introduction of new administrative offenses to address the problematic conduct.

Indeed, the critics are correct to object to the repeal of the abuse of office offense. While the law may have been imperfect, and perhaps should have been reformed, its outright repeal is short-sighted, and poses threats to the credibility and legitimacy of the Italian legal and administrative system. Numerous cases demonstrate why the abuse of office offense, or something like it, is essential. For example, the Italian media has recently reported on the case of an aspiring judge who, with the help of an exam commissioner, rigged the competition for access to the judiciary. There have also been many reports of prosecutors protecting their friends or relatives, but launching sham prosecutions against their competitors or political rivals. In far too many cases, public officials award contracts based on personal relationship rather than objective, merit-based criteria. (As for the claim that the law was too vague, and led to politically motivated prosecutions and overdeterrence, these concerns were substantially addressed by a 2020 amendment to the law, which made clear that the public officials could be criminally liable under this law only when acting in violation of  non-discretionary legal duties or in the presence of a conflict of interest.)

Though the Italian legislature has formally repealed the abuse of office offense, its fate is still uncertain because critics of the repeal have lodged a constitutional challenge, arguing that the repeal violates both the Italian Constitution and Italy’s obligations under various international agreements. In particular, Article 19 of the so-called Merida Convention requires signatory states to introduce criminal offenses that punish public officials’ abuse of power in exercising their functions. The case has been referred to the Italian Constitutional Court. The Court ought to hold the repeal to be unlawful. But even  if the Constitutional Court does not hold the repeal of the abuse of office crime as unlawful, it may not be enough to close the Italian debate. If the recent EU Proposal for a Directive of the European Parliament and of the Council on Combating Corruption comes into force, Italy will be called to reintroduce the abuse of office offense under Article 11 that requires Member States to criminalize the actions or omissions of public officials when the powers granted to them are exercised not in accordance with laws and other legal acts but for self-seeking purposes or exceeding their authority.