The Constitution of the Italian Republic defends dissent and punishes the abuse of public power, and therein lies the concreteness of democracy and the liberal state. So much so that when one measures the democratic health of a country, one considers not only the more or less formal exercise of voting, but the effective protection of citizens’ rights from the abuse of power by public officials and the effective guarantee of the freedom to demonstrate, even bitterly, against public power. The Italian government has decided that the abuse of public power is no longer a crime and at the same time has chosen to exacerbate the repression of dissent and social unrest, jumping feet-first on the values of our Constitution.
Law Aug. 9, 2024, no. 114, in Art. 1(1)(b)[1], with a few lapidary words (“Article 323 is repealed”) removed the indispensable center of gravity of crimes against public administration.
The choice of the current legislature results in an impairment of our criminal justice system with respect to the constitutional principles crystallized, first and foremost, in Articles 28 and 97 of the Constitution[2] (in particular with respect to the liability of public officials for acts done in violation of rights and the guarantee of good performance and impartiality of the Public Administration), but also with respect to the principle of equality, the right to defense and compliance with the obligations undertaken by our country in the European context.
The crime of abuse of office, in fact, constituted the highest expression of the criminal norms placed to safeguard the proper use of public power, which in a democratic system finds and must find balance both in the division among the powers of the state and in the limitation of the same and of the possible pathological repercussions on the citizens who do not exercise that power and are instead subject to it.
The negative narrative that has characterized abuse of office over time has originated from real or potential distortions in the application of a rule that was born with a very broad scope and that – over time – has been progressively circumscribed to limit the possibility of “too easy” challenges and to curb the much-cited risk of generating paralysis of public apparatuses, hostage to the well-known “fear of signing.”
In the communication that accompanied the proposal, the figure of numerous acquittals and dismissals against the total number of registered cases was also overstated, which was used to argue for an alleged futility of the case.
To report, as has been done, that in 2021 out of 5,418 proceedings 4,465 ended with dismissal for reasons other than the statute of limitations[3], is extremely misleading: the data published by the Ministry of Justice does not report the years of registration of proceedings and, therefore, it is not possible to assess what their path was and, above all, what the wording of Art. 323 c.p. in force at the time of registration.
In fact, the data on the outcome of proceedings pending in recent years-which, as reported, would almost all have ended without a conviction-is affected by the transition from the old to the new provision, which took place only in 2020: it is very likely (as well as logically evident) that much of the recent acquittals and dismissals stem from the decriminalization of conduct unrelated to the latest formulation of the rule, but which had been contested in proceedings entered before the novelty.
And in fact, the last wording of the rule that was finally repealed was particularly restrictive, allowing very limited room for inquisitorial maneuver, punishing only the conduct of the public official or public service officer who “in violation of specific rules of conduct expressly provided for by law or by acts having the force of law and from which no margin of discretion remains, or by failing to refrain in the presence of his own interest or that of a close relative or in other prescribed cases, intentionally procures for himself or others an unfair pecuniary advantage or causes unjust damage to others.”
It may well be noted that the repealed rule could not in any case lend itself to risks of abuse of interpretative discretion by magistrates, operating in such a circumscribed sphere, a minimum perimeter for the dutiful criminal reprehensibility of the public power’s actions.
In contrast, the case of Art. 323 c.p. stood as a boundary point and bulwark of tightness between legitimately exercised public power and a guarantee for citizens from abuses of the same power, thus allowing judicial control over the public official’s actions, even in the absence of strictly economic components.
Questions of constitutional legitimacy
Other criticism has been advanced in terms of constitutional legitimacy by the Reggio Emilia Public Prosecutor’s Office in the infamous Bibbiano trial,[4] which petitioned the court to refer the case to the Constitutional Court for violation of Articles 3, 24, 97 and 117 of the Constitution.
And in fact, it has been pointed out that the repeal of abuse of office is detrimental to the principle of equality, not overlapping at all with the scope of application of other norms still present in the Criminal Code (as argued by proponents of repeal), but rather constituting an inalienable structural element of the system, without which an unreasonable lacuna is created, a difference in treatment of conduct that is substantially similar in offensiveness, as well as a violation of the supranational obligations assumed by our country.
Regarding the principle of equality (ex art. 3 of the Constitution[5]), the lack of reasonableness of this repeal is immediately apparent when the crime of refusal and omission of acts of office survives in art. 328 of the Criminal Code, which punishes “the public official or the person in charge of a public service, who unduly refuses an act of his office which, for reasons of justice or public safety, or public order or hygiene and health, must be performed without delay.” Where the omission or refusal was determined by the purpose of procuring for oneself or others an unfair pecuniary advantage or causing unfair damage to others, the conduct would fall within the scope of application of the more serious Article 323 of the Criminal Code.
As a result, of two related conducts the one of greater disvalue is elided.
At the same time, while the wrongful refusal or omission of an official act is still punished, the wrongful commission of an official act contrary to specific rules of conduct has instead become criminally irrelevant.
Similar reasoning comes to light with respect to the offenses under Articles 353 and 353 bis of the Criminal Code (respectively, disruption of the freedom of invitations to tender and disruption of the freedom to choose a contractor)[6].
Both rules protect the freedom of choice procedures, the former by intervening downstream of the start of the bidding process (protecting distortions in the application of calls for bids) and the latter upstream, when manipulations for customized calls for bids take place.
The moment a notice is not there or should not be there (from an internal procedure to private contracting in the area of direct awarding), there would be no protection against the abuse of power of the public official or public service appointee in the manner in which he or she chooses his or her contractor, in defiance of – for example – the rules from which there is no residual margin of discretion present within the Procurement Code.
What is more, with respect to the aforementioned Article 97 of the Constitution, the removal of criminal protection in relation to abusive and prevaricating conduct of the public official would leave the aggrieved private party (and only where there is one) with only remedies in the administrative courts.
Another non-secondary element of vulnerability, as mentioned, is the peculiar characteristic of abuse of office, which was the only norm that protected the citizen from the deviant behavior of the official regardless of the presence of the economic datum. The private individual’s right of defense(pursuant to Article 24 of the Constitution[7]) would thus be limited, and he would no longer be able to assert – in the face of conduct marked by a strong disvalue (otherwise sanctioned in the presence of economic benefits or damages) – his legitimate rights and interests.
Italy’s international obligations
Moreover, the repeal of abuse of office conflicts with Italy’s international obligations and, consequently, with the dictate of Art. 117 of the Constitution[8].
And on this point, based on the jurisprudence of the Constitutional Court,[9] there would be little obstacle to an in malam partem intervention with re-expansive effects of the repealed rule.
In fact, our country has ratified the United Nations Merida Convention (of 2003) against corruption, and in particular has taken on the obligation to work “in accordance with the fundamental principles of its domestic law to adopt, maintain and strengthen systems that promote transparency and prevent conflicts of interest.”[10].
This alone would be enough to see an irremediable contrast with the latest repeal, but there is more, because in Art. 19 of the ratification law, under the heading “abuse of office,” the commitment to consider “the adoption of the legislative and other measures necessary to confer the character of a criminal offense, when the act was committed intentionally, to the act for a public official to abuse his functions or his position, that is, to perform or refrain from performing, in the exercise of his functions, an act in violation of the laws in order to obtain an undue advantage for himself or another person or entity.”
Most recently then, in 2022, abuse of office had been included within the crimes covered by Art. 322 bis c.p., by which numerous offenses against public administration are extended to members of international courts or bodies of the European Communities or international parliamentary assemblies or international organizations and officials of the European Communities and foreign states [11].
And this is in order to implement EU Directive 2017/1371 on the fight against fraud affecting the financial interests of the Union through criminal law[12]; holding, therefore, that it was necessary to extend to this obligation assumed in the European context the protection offered by Art. 323 c.p., which within art. 322 bis c.p. has now been replaced by art. 314 bis c.p. (misappropriation of money or movable property, so-called embezzlement by diversion), which is of lesser scope and whose conduct, prior to its express reintroduction in the Criminal Code, was punishable precisely through the rule of abuse of office.
In the future perspective, moreover, there will also be a problem with the proposed European directive “on combating corruption, replacing Council Framework Decision 2003/568/JHA and the Convention on the fight against corruption involving officials of the European Communities or officials of Member States of the European Union, and amending Directive (EU) 2017/1371 of the European Parliament and of the Council.”[13].
In Recital no. 13, in fact, the proposal notes that ” the crime of abuse of office in the public sector should also be defined as the omission of an act by a public official, in violation of the law, in order to obtain an undue advantage. To comprehensively combat corruption, this directive should also cover abuse of office in the private sector “.
Next, the text includes a specific article titled “abuse of office” that requires member states to punish, when intentional, ” the performance or omission of an act, in violation of law, by a public official in the performance of his duties in order to obtain an undue advantage for himself or a third party;” as well as ” the performance or omission of an act, in violation of a duty, by a person who in any capacity performs managerial or employment functions for a private sector entity in the course of economic, financial, entrepreneurial or commercial activities in order to obtain an undue advantage for himself or a third party.”
At the time of the drafting of the proposal, among other things, it was found that the 25 states that participated in the drafting (Denmark and Bulgaria the absent members) already had the crime of abuse of office in their legal systems.
Finally, the European Commission’s Rule of Law Report 2024.[14], in response to Italian arguments in favor of repealing Art. 323 c.p., stated that ” the criminalization of abuse of office and trafficking in unlawful influence is provided for in international conventions on corruption and is therefore an essential tool for law enforcement and prosecutors’ offices in the fight against corruption. Stakeholders have noted that the repeal of the crime of abuse of office could result in decreased levels of detection and investigation of fraud and corruption “.
The repression of dissent
At the same time, while the legislature is concerned about “power paralysis,” with the latest security measure passed by the House and under consideration by the Senate (DDL no. AC 1660-A [15]), there is an exacerbation of the criminalization of forms of expressing dissent against that same power.
And in fact, the narrative of the risk of pan-penalism as a justification for expunging abuse of office from our legal system stands in stark contrast to the constant broadening of the criminal orbit regarding the manifestation of dissent and social unrest. In particular, the new urban security provisions crack down with unusual detail and pervasiveness on a set of offenses, introducing, aggravating and anticipating the punishability of many conducts attributable to modes of expressing dissent: symbolic occupation of public land, obstruction of free movement on the street, tightening of penalties for resisting a public official, defacement of public buildings “for the purpose of harming the honor, prestige or decorum of the institution,” the introduction of the crime of rioting inside a penitentiary institution and equal discipline with respect to detention and reception facilities for migrants, where any form of even passive disobedience is considered rioting.
Reading the text of the bill, one seems to be able to visualize, like a stop-motion movie, all the news cases of recent years that have highlighted social unrest and thrusts of dissent of various kinds. Such hardships, instead of being the recipients of judicious management oriented toward an examination of causes and a lucid vision of the future, are thus met with the repressive, disheveled and almost stymied reaction of absolute and unquestioning power. The same power that apparently does not feel that it is deserving of judicial scrutiny and limitation (the crime of abuse of office) to its actions.
So, on the one hand, power is loosed from binds to feel freer to “do,” and a tool for citizens to counter its abuse is taken away from them; on the other hand, the same citizens are discouraged from expressing forms of opposition to power, increasing the risk of seeing their conduct fall more easily (and more severely) into the pool of the criminally relevant: legalization of abuse and criminalization of dissent.
References
[ 1] https://www.gazzettaufficiale.it/eli/id/2024/08/10/24G00122/SG [2] Art. 28: ” Officials and employees of the state and public agencies are directly liable under criminal, civil and administrative laws for acts done in violation of rights. In such cases, civil liability extends to the state and public entities .” Art. 97: “Public administrations, consistent with European Union law, shall ensure the balance of budgets and the sustainability of the public debt.Public offices shall be organized in accordance with provisions of the law, so that the good performance and impartiality of the administration are ensured.In the organization of the offices, the spheres of competence, powers and responsibilities proper to officials are determined.Employment in public administrations shall be by competitive examination, except in the cases established by law.” [3] See, among others, F. Boschi , Abuse of office, the numbers of a crime that does not hold up, Il Giornale, 13.01.2023; C. Guasco, Justice reform, for abuse of office 80% of filings. , The Messenger, 06/18/2023. [4] Read the brief filed by the Reggio Emilia Prosecutor’s Office . [5] Art. 3: “All citizens have equal social dignity and are equal before the law, without distinction of sex, race, language, religion, political opinion, personal and social conditions. It is the duty of the Republic to remove obstacles of an economic and social nature, which, by effectively limiting the freedom and equality of citizens, prevent the full development of the human person and the effective participation of all workers in the political, economic and social organization of the country .” [6] Article 353 of the Criminal Code: “Anyone who, by violence or threat, or by gifts, promises, collusion or other fraudulent means, prevents or disrupts the bidding in public auctions or private bidding on behalf of public administrations, or turns away bidders, shall be punished by imprisonment from six months to five years and a fine from 103 to 1,032 euros.
If the culprit is a person in charge by law or authority of the aforementioned auctions or bidding, imprisonment shall be from one to five years and a fine from 516 euros to 2,065 euros.
The penalties set forth in this article shall also apply in the case of private bidding on behalf of private individuals, directed by a public official or legally authorized person; but shall be reduced by half.” [7] Art. 353 bis of the Criminal Code: “Unless the act constitutes a more serious crime, anyone who with violence or threats, or with gifts, promises, collusion or other fraudulent means, disrupts the administrative procedure aimed at establishing the content of the notice or other equivalent act(2) in order to condition the manner in which the public administration chooses a contractor shall be punished by imprisonment from six months to five years and a fine from 103 to 1,032 euros.” [7] Art. 24: “Everyone can take legal action to protect his or her rights and legitimate interests. Defense is an inviolable right at every stage and level of proceedings. Means for acting and defending oneself before every jurisdiction are ensured to the indigent through special institutions. The law determines the conditions and methods for the redress of miscarriages of justice .” [8] Art. 117: “Legislative power is exercised by the state and the regions in compliance with the Constitution, as well as with the constraints arising from the Community order and international obligations. (…)” [9] Const. court no. 8 of 18.01.2022; Const. Court no. 37, 06.03.2019. [10] See Law 116/2009 – Ratification of the Merida Convention. [11] Art. 322 bis c.p.: “The provisions of Articles 314, 314-bis, 316, 317 to 320 and 322, third and fourth paragraphs, also apply to: 1) to members of the Commission of the European Communities, the European Parliament, the Court of Justice and the Court of Auditors of the European Communities; 2) to officials and servants employed by contract under the Staff Regulations of Officials of the European Communities or the Conditions of Employment of Servants of the European Communities; 3) to persons seconded by the Member States or any public or private entity to the European Communities, who perform functions corresponding to those of officials or agents of the European Communities; 4) to members and employees of bodies established on the basis of the Treaties establishing the European Communities; 5) to persons who, within other member states of the European Union, perform functions or activities corresponding to those of public officials and persons in charge of a public service; 5-bis) to judges, the prosecutor, assistant prosecutors, officials and agents of the International Criminal Court, persons seconded by the states party to the Treaty establishing the International Criminal Court who perform functions corresponding to those of officials or agents of the Court, members and employees of bodies established on the basis of the Treaty establishing the International Criminal Court 5-ter) to persons exercising functions or activities corresponding to those of public officials and public service officers within public international organizations; 5-quater) to members of international parliamentary assemblies or of an international or supranational organization and to judges and officials of international courts 5-quinquies) to persons performing functions or activities corresponding to those of public officials and persons in charge of a public service within non-EU states, when the act offends the financial interests of the Union. The provisions of Articles 319-quater, second paragraph, 321 and 322, first and second paragraphs, shall also apply if the money or other benefit is given, offered or promised: 1) to the persons specified in the first paragraph of this Article; 2) to persons performing functions or activities corresponding to those of public officials and public service officers within other foreign states or international public organizations. The persons specified in the first paragraph shall be assimilated to public officials, if they perform corresponding functions, and to persons in charge of a public service in other cases.”
[12] Directive (EU) no. . [13] Proposal no. . [14] See, in particular, Chapter on the Situation of the Rule of Law in Italy. [15] See Text of the bill and Preparatory work on the bill.
