The Mafia Capitale Trials Show Italian Municipalities’ Continued Vulnerability to Corruption by Organized Criminal Groups

Over five years ago, in November of 2014, Rome’s mayor, Ignazio Marino, blew the whistle on a massive corruption scheme in the city’s administration. Marino had become particularly suspicious of Salvatore Buzzi, the leftwing leader of a cooperative that controlled, among other things, the city’s recycling, trash disposal, and street cleaning services. Buzzi had been imprisoned in the 1980s for homicide, but was supposedly a thoroughly reformed champion of progressive causes. In fact, he was the right-hand man of Massimo Carminati, a former member of a neofascist terrorist group. Using collusion, exchange of favors, extortion, and intimidation, Carminati and Buzzi diverted hundreds of millions of euros intended for the improvement of Rome’s infrastructure to private bank accounts. And if this wasn’t enough, the group even skimmed resources from housing projects designed to shelter refugees, with Buzzi famously caught on a telephone intercept saying “Do you have any idea how much I earn on these immigrants? They’re more profitable than drugs.”

In sum, these Roman criminal groups, which are popularly known as Mondo di Mezzo (the World Between) or Mafia Capitale (Capital Mafia), had thoroughly infiltrated Rome’s municipal government. Indeed, their connections reached the upper echelons of Roman government, including former mayor Gianni Alemanno, who was ultimately convicted of corruption and illicit funding. Buzzi and Carminati, along with more than 40 other individuals, were ultimately brought to trial over these crimes. Prosecutors under magistrate Giuseppe Pignatone pushed for this organization to be recognized as a mafia—which is important, because under Italian law, there is a special, and especially severe, set of criminal laws reserved for mafia members and mafia-type associations. This past October, however, the Italian Court of Cassation ruled that the Mondo di Mezzo did not qualify, legally, as a mafia-type association (associazione di tipo mafioso).

This ruling has been controversial, and indeed much of the attention that Mondo di Mezzo has received has been based on the “mafia” element of this case. But whether or not Mondo di Mezzo is a mafia, this case has revealed the Italian capital’s vulnerability to corruption by organized criminal networks. In the words of Pignatone, the mafia is not Rome’s first problem. Instead, the most serious issues “are the crimes against the public administration and the economy. It is corruption, auction disruptions, bankruptcies, multimillion-dollar frauds. Mafia Capitale is just a piece of a much larger and more complicated mosaic.” And Mondo di Mezzo demonstrates that Italy must take concrete action to reduce the vulnerability of municipal governments to infiltration by criminal groups. Continue reading

Italy’s Mafia Corruption Laws Are Causing More Confusion than Clarity

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.

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Italy’s Statute-of-Limitations Reforms: A Helpful But Incomplete Step Toward Ending Impunity

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: Continue reading