Prosecutors fighting major corruption cases in Italy now risk criminal charges
by https://euobserver.com/author/drago-kos/ · EUobserverIf Italy becomes a country where corruption is no longer effectively prosecuted, then corrupt business will flow to it, encouraging other countries to weaken their own anti-corruption efforts (Source: ECB)
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By Drago Kos,
Vienna
,
On Thursday (18 June), Italy’s Supreme Court will decide whether prosecutors can be criminally punished for exercising professional judgment in corruption cases.
The ruling, arising from the fallout of a Nigerian oil-field bribery trial, could fundamentally weaken anti-corruption enforcement in Italy, and send a dangerous signal internationally that prosecutors themselves may become targets when politically-sensitive corruption investigations fail.
At issue are recent Italian court rulings that criminalised two prosecutors for exercising their discretion within the rules that have been the bedrock of judicial independence, destroying prosecutorial independence and discretion as a central plank of Italian justice.
Trial prosecutors must prosecute without fear or favour — and until now, the rules have provided autonomy to prosecutors, enabling them to manage their cases, protected from criminal sanction where their decisions have been made in good faith.
Complex corruption cases frequently involve numerous, complex documents, and to handle these well, prosecutorial discretion is critical.
This is because decisions must be made about which documents must be included in the case file, enabling courts to focus on core case issues, avoiding the consequences of irrelevant materials compromising prosecutions.
The result is extraordinary: prosecutors may now face criminal liability for procedural decisions made in good faith during complex investigations.
How could this happen?
The story begins with a high-profile anti-corruption case against oil majors Shell and Eni and senior executives for allegedly paying $1.1bn [€950m] in bribes to secure an offshore oil field (known as OPL 245) in Nigeria.
The defendants were all acquitted in 2021, in a judgment that was subsequently ruled by the OECD’s Working Group on Bribery to be at odds with the OECD Bribery Convention.
Following the acquittal, Fabio de Pasquale and Sergio Spadaro, the lead prosecutors in the OPL 245 case, were charged with withholding an undercover video from the defence.
When it emerged that Eni already had the video while the prosecutors themselves did not, other charges were laid.
On five further occasions the charges were withdrawn and amended.
Eventually, the authorities settled on a single charge of “refusing to perform an official act,” based on alleged failure to file documents by a deadline – even though the cited documents were never actually in the possession of the two prosecutors.
Many anti-corruption campaigners internationally have raised concerns that the trial was politically motivated.
Indeed, in separate cases, associates of Eni have been convicted for conspiring with state officials to “pollute” the investigation into the alleged bribery, and a former senior legal counsel for the company, is currently being prosecuted for the same offence.
One of those convicted has alleged that the aim of the “pollution” scheme was to terminate the OPL 245 prosecutions; to discredit and discipline the trial prosecutors; and to reduce the effectiveness of the specialist anti-corruption unit within the Milan Prosecutors’ Office – outcomes that have all come to pass.
Those allegations and others are to be reviewed by the OECD Working Group on Bribery later this year.
In the meantime, de Pasquale and Spadaro have been convicted – a conviction which was subsequently upheld by the Appeal Court.
Prominent Italian jurist Nello Rossi – a former attorney general at the Supreme Court and member of the High Council of the Judiciary – has described the convictions as based on “questionable conjectures” and “illogical reasoning”, describing the decision as in contrast with established precedent.
No other court has interpreted the official rules governing disclosure to require prosecutors to disclose all materials received relating to a case regardless of its source, relevance, or its credibility.
Chilling effect already apparent
Meanwhile, the number of international corruption investigations underway in Italy has decreased sharply.
This is understandable, given many prosecutors will be deterred from initiating investigations, let alone prosecutions, thanks to potentially ending up as defendants at the court because a file was left out of the case file or, as in this case, excluded in good faith for reasons of irrelevance.
Thus, a key plank of the rule of law has been sawn through and a central pillar of the rule of law is now at risk. If prosecutors can be targeted for good-faith procedural decisions, corrupt actors gain a powerful new weapon: turning the justice system against those investigating them.
The fact that Italian prosecutors can now be targeted and criminalised by corrupt actors claiming irrelevant and polluting materials should have been included in the case file, would appear to be contrary to Italian law, in particular Article 53 of the Italian Code of Criminal Procedure, which provides “full autonomy” to the prosecutor.
But given that Italy, as a signatory to the OECD Anti-Bribery Convention, must defend prosecutorial discretion, it is now incumbent on the Supreme Court to provide clarity to these inconsistencies.
If Italy becomes a country where corruption is no longer effectively prosecuted, then corrupt business will flow to it, encouraging other countries to weaken their own anti-corruption efforts.
The OECD Anti-Bribery Convention was established for the express purpose of preventing such a race to the bottom. It is high time that the OECD Working Group on Bribery, as guardian of the Convention, used the tools available to it to prevent that downfall.
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If Italy becomes a country where corruption is no longer effectively prosecuted, then corrupt business will flow to it, encouraging other countries to weaken their own anti-corruption efforts (Source: ECB)
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Author Bio
Drago Kos is the former chair of the OECD Working Group on Bribery, which acts as the guardian of the OECD Anti-Bribery Convention.
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