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. Continue reading →