Legal guide to the crime of corruption with all there is to know and the most significant jurisprudence, updated to the anti-corruption law 2018 Corruption is a phenomenon that occurs when a subject acts against his or her duties and obligations in the face of obtaining money or other benefits. Corruption is penalized by our system, tracing it back to the list of crimes against the public administration.
Corruption , governed by articles 318 and following of the penal code, is a multi-subjective (more precisely, bilateral) crime to be necessary. In simple terms, corruption occurs when a private individual and a public official agree that the former corresponds to the latter a fee (not due) for an act in various ways pertaining to the attributions of the latter .
The strongly damaging attitude of corruption towards the interests of the Public, and of the community in general, has determined the Legislator to decide to hit both parties involved in the criminal conduct. Here, then, is that in our corrupt and corrupting legal system they face the same punishment. The erroneous belief, on the part of the briber or the corrupt, that the compensation given or promised was due by law operates as an excuse.
With regard to active subjects, the cases belonging to the category of corruption constitute both their own and common crimes . Own , considering the side of the corrupt – necessarily a Public Official (or person in charge of public service, as per article 320): for example the judicial officer, a police officer etc .; common from the point of view of the corrupting subject – which can be any private citizen.
The hypothesis of corruption commonly considered more serious, and punished more heavily – since it is more harmful than the proper functioning of the administration – is the so-called one , regulated by art. 319 cp. This is the case in which a public official or public service officer accepts the gift or promise of money or other benefit to omit or delay the completion of an act of his office, or to perform an act contrary to the duties of his office.
Instead, improper corruption is said – pursuant to art. 318 of the Criminal Code – the crime of a public official (or person in charge of a public service) who accepts the provision or promise of money or other benefits in exchange for the performance of an act of his office . In this case, in fact, the public official puts in place an act that he would have had to do anyway, and the negative value of the conduct lies only in the compensation.
The punishment currently envisaged for the crime of corruption is – depending on the various cases contemplated by the criminal code – imprisonment from 1 to 20 years. There is no need for a party complaint for the prosecution of corrupt and corrupt people, since it is also possible to proceed ex officio.
With the anti-corruption law, approved in December 2018, the penalties for corruption were tightened. In particular, the recent law has provided that for the corruption for the exercise of the function (so-called improper corruption), the penalty is no longer that of imprisonment from one to six years, but that from imprisonment from three to eight years.
We speak (often in our country) of environmental or endemic corruption , when within a given system – administrative structure, etc. – corruption is not a criminal act isolated, but poses as a real practice: a modus operandi and even vivendi widespread, such as to establish to establish a permanent induction towards said criminal case. A typical example is that of the clamorous Italian cases of the 90s, commonly known under the name of Tangentopoli .
Corruption between private parties pursuant to art. 2635 of the Italian Civil Code occurs when a person operating within a company seeks (whether or not he succeeds) to bribe mayors, liquidators, directors, general managers or managers in charge of preparing accounting documents.
From the crime of corruption, other types of crimes must be distinguished which, despite having similarities, have clearly diversified presuppositions and rules. For example, with regard to bribery (see the guide: The offense of bribery) it is a crime characterized by a constricting abuse of the public official who, abusing his quality or his powers, forces someone to give or unduly promise, to him or to a third party, money or other benefit.
Unlike extortion, corruption is characterized by an agreement freely entered into between a private individual and a public official.
Then there is the abuse of office which is governed by art. 323 of the Criminal Code and which occurs when the public official or public service representative, “in the performance of the functions or the service, in violation of the law or regulation, or failing to abstain in the presence of an interest of his own or of a next neighbor or in other prescribed cases, he intentionally procures an unfair financial advantage for himself or for others “.
The legitimacy jurisprudence has been expressed several times over the crime of corruption, distinguishing the similar cases and outlining the conduct necessary to integrate the crime. Here are some of the most important maxims of the Cassation regarding the crime of corruption:
With regard to the crime of instigation to bribery for an act contrary to the duties of the office (Article 322 of the Italian Criminal Code, paragraph 2), the statements of this Court remain firmly established and for which: a) the crime takes the form of simple conduct of the offer or promise of money or other benefits, as long as it is serious, potentially and functionally suitable to induce the recipient to perform an act contrary to the duties of the office, such as to determine a significant probability of causing a mental disturbance in the public official, yes that the danger arises that he will accept the offer or promise; b) the suitability of the conduct must be assessed with an “ex ante” judgment that takes into account the entity of the compensation, the personal qualities of the recipient and his economic position and any other connotation of the concrete case, with the exclusion of the crime only if missing the potential suitability of the offer or the promise to achieve the purpose pursued by the author for the evident and absolute impossibility of the public official to keep the unlawful behavior demanded.
With regard to the parliamentarian, it is never possible to define the crime of corruption (due to an act contrary to the duties of the office), prior and / or subsequent, provided for by art. 319 of the Criminal Code, prohibiting the combined provisions of Articles 64.67 and 68 of the Constitution … with regard to the parliamentarian it is configurable, subject to the regulatory requirements and without prejudice to the unquestionability of the expressions proper to the functional activity of the parliamentarian, the crime of improper corruption.
To distinguish the crime of corruption from that of undue induction to give or promise utility, the initiative taken by the public official, although it may constitute a symptomatic index of induction, does not assume a decisive value for the purpose of excluding the case of corruption, since the requirement that characterizes undue induction is the prevaricating conduct of the public official, which is followed by a condition of psychological subjection of the private individual.
The crime of undue induction to give or promise utility differs from corruption, since in the first the public official implements a prevarication behavior, which can also derive from the imbalance of position between the public official or the public service officer and the private and the induced accesses the illicit agreement conditioned by the fear of being prejudiced as a result of the exercise of the publicist powers, while in the crime of corruption the parties act in an equal position and the private party determines himself to pay for mere utilitarian calculation and not for fear.
For the purposes of configuring the crime envisaged by art. 86, second paragraph, Presidential Decree 16 May 1960, n. 570 (so-called electoral corruption), it is necessary that the illicit agreement between the voter and the candidate is carried out according to the vote to be expressed in a determined and upcoming electoral competition.
On the subject of corruption, the stable enslavement of the public official to the personal interests of third parties, with episodes both of acts contrary to official duties and of acts compliant or not contrary to these duties, constitutes the only crime, permanent, envisaged by the art. 319 cod. pen., with absorption of the less serious case referred to in art. 318 same code.
Integrates the crime of corruption in judicial acts “ex” art. 319-ter cod.pen. the promise or giving of money to the witness, and accepted by him, so that with his false testimony he favors part of the criminal trial.
With regard to precautionary requirements, art. 274, lett. c), cpp, in the text introduced by l. April 16, 2015, n. 47, requires that the danger that the accused commit other crimes must be not only concrete, but also actual; it follows that it is no longer sufficient to consider it highly probable that the accused returns to crime if the opportunity arises, but it is also necessary to provide that the accused actually has an opportunity to carry out further crimes of the same species.