18 Nov abuse of office

Among the most tormented cases of the penal code, the crime of abuse of office ex art. 323 c.p. over the years it has been the subject of a series of rewriting interventions that have significantly changed its original physiognomy.

With the most recent reformulation, implemented with the controversial technique of emergency decree by the legislative decree. 16 July 2020, n. 76, (c.d. “simplification decree”), converted into law 11 September 2020, n. 120, the legislator has significantly affected the application spectrum of the incriminating case through the remodulation of its objective element, constituted by the violation of the rules of action of the public agent. The rationale for this intervention was identified in the contrast to the so-called. “defensive bureaucracy" that is to say "fear of signing”.

Through these expressions we usually refer to administrative practice, established in recent years, aimed at determining the reluctance of public officials to make choices useful for protecting the public interest, for fear of incurring possible sanctions that active conduct could have resulted in.

Although the question thus posed may echo the phenomenon of the so-called. “defensive medicine” – which undoubtedly presents some similar profiles and which has made repeated legislative interventions necessary –, the "fear of signing" presents completely peculiar profiles that signal the opportunity to provide a preliminary historical reconstruction of the case in order to understand its intimate nature, so as to be able to make a full evaluation of the most recent regulatory intervention on the subject possible.

The original version of the case of «abuse of office» punished the public official (not even the person in charge of a public service) than by abusing their powers, to cause harm to others or to procure them an advantage, commits any act not foreseen as a crime by a particular provision of law.

It is clear that from its first formulation, abuse of office constituted a crime with a repressive function to close the set of crimes against the public administration. Its broad formulation, which in fact found in the subjective element alone - in particular in the specific intent to bring an advantage or damage to others - an element of circumscription of the criminally relevant conduct, From the first years of its existence it had generated particularly important doctrinal criticism, precisely in consideration of the excessive breadth of the incriminating rule.

Since the punishable conduct was considered excessively chaotic, the decision regarding the compatibility with the constitutional provisions of the then current art. was left to the Judge of Laws. 323 c.p.. The Constitutional Court, however, with sentence n. 7/1965 ruled in favor of the legitimacy of the case of abuse of office, considering the question as unfounded as presented by the referring judge.

Despite the ruling of the Court, which confirmed the legitimacy of the art. 323 c.p., the danger of the potential excessive interference of the criminal judge in the administrative choices of officials has determined the need for legislative intervention to "correct" this aspect.

In 1990, with law n. 86, the Legislator provided for the rewriting of the case of abuse of office in order to limit the punishable conduct within more certain and reasonable boundaries. Following this intervention - which on the level of active subjectivity extended the punishability also to those in charge of public service - the art.. 323 c.p. punished those whoin order to obtain an unfair advantage for oneself or others, to cause unjust harm to others, abused his office, when the act no longer constitutes a serious crime».

Even this version of the case - which retained the nature of a residual case in terms of crimes against the public administration - was not free from criticism; the reference to the generic notion of "abuse" (of the official's office), it did not seem to be limited within precise boundaries, certain and reasonable, the scope of the indictment.

As deduced from the letter of this provision, indeed, in concrete terms it was up to the judge to identify the conduct that constituted the "abuse". of the office» required by the incriminating rule. Thus opining, therefore, countless problematic questions arose regarding conduct “discretionary” of the public official.

The greatest interpretative conflicts arose precisely in reference to the acts expressing administrative discretion, since it was believed that this area could not be investigated by the criminal judge unless in the presence of serious violations.

In the wake of such ongoing criticism, the Legislator thus intervened with law no. 234/1997, substantially modifying the code provision relating to the crime of abuse of office. This version was further modified in 2012 only at the point of sanctioning treatment, thus remaining essentially unchanged - the incriminating case understood as punishable conduct - until the last legislative intervention through the aforementioned legislative decree. «Simplifications».

As already mentioned, the version introduced in 1997 was undoubtedly the most appreciable intervention in terms of delimiting punishable conduct.

This version, which in fact overturned the entire previous regulatory construction, introduced countless new elements in order to parameterize punishable conduct within well-defined boundaries. The rationale for the new intervention could, Once again, identify itself in the protection of the public official in order to avoid possible excessive jurisdictional interference in administrative action.

The case in point, in continuity with previous versions, it became a residual law in terms of crimes against the public administration whose main purpose is to protect the integrity and smooth running of administrative activity. However, after the intervention of 1997 the definitive abandonment of the specific malice scheme was established as the only element defining the illegitimacy of the public official's conduct. He was coming, indeed, punishable conduct has been identified limited only to violations of laws or regulations or in the event of failure of a public official to abstain in the presence of his own interest or that of a close relative or in other cases expressly provided for. Furthermore, as already stated, in terms of the subjective element, the scheme of specific intent was definitively overcome in favor of the figure of intentional intent; and what's more, the elements that previously characterized specific intent became the event of the crime in the "new" case, being required for the purpose of completing the punishable conduct the production of an unfair advantage for oneself or for third parties or the production of unfair damage towards third parties.

This formulation, as mentioned, remained substantially unchanged until the legislative intervention of the 2020, seemed to achieve appreciable results in terms of protection towards the public official so as to avoid the so-called. “fear of signature” or “defensive bureaucracy”.

As highlighted several times previously, indeed, the Legislator having set the violation of law or regulation as an express reference parameter for abuse of office, numerous interpreters have considered the hypothesis of the administrative act adopted in "excess of power" to be eliminated from the criminal judge's examination.

In this regard, the jurisprudential evolution seemed to accept this reading, believing that the criminal judge's examination should stop before acts that were not adopted in express violation of laws or regulations. By holding this opinion, the judge was no longer allowed to enter into the merits of administrative discretion because «regarding abuse of office, art. 1 of the law 16 July 1997, n. 234, which replaced the art. 323 cod. pen., has anchored the configurability of the material conduct to the violation of laws or regulations, so as to uniquely limit the conditions for punishable behavior into defined areas. It follows that, while in the previous system, in the silence of the law they took on importance, where the conduct resulted in the adoption of illegitimate administrative measures, and incompetence, both excess power, is a violation of the law, in the current system, for the purposes of abusive conduct, only the violation of laws or regulations and failure to comply with the duty to abstain in the presence of one's own interest or that of a close relative or in other prescribed cases are relevant".

The only case in which the criminal law deemed it not to anchor the official's criminal liability to a law or regulation was identifiable in the case in which he had adopted the provision «failing to abstain in the presence of one's own interest or that of a close relative or in other cases provided for».

This regulatory operation, although accepted by the jurisprudence cited last, was denied by a different interpretative approach aimed at recognizing the persistence within the scope of the punishability of the art. 323 c.p. of excess power. Furthermore, some rulings of the Supreme Court, have in fact "dangerously" once again expanded the scope of the punishability of the art. 323 c.p. considering also punishable the violation of the principle of impartiality deriving from the art. 97 Cost. which establishes the principle of good performance of administrative activity - considered a preceptive and not merely programmatic rule -. Thus opining, in fact, this hermeneutic direction, in continuing to consider discretionary administrative acts reviewable by the criminal judge, they determined, “in fact”, the revival of the previous legislation on abuse of office, re-presenting the question relating to the potential excessive interference of the judge with respect to the discretion of the public official in the exercise of his functions - a risk that the rationale of the legislative intervention aimed to obviate -.

Considering the continuing jurisprudential uncertainty regarding the reviewability by the criminal judge of the hypotheses of discretionary administrative acts, with consequent evaluation for the purposes of applicability of the art. 323 c.p. of excess power, the Legislator has recently chosen to intervene by making a further explicit narrowing of the area of ​​criminal relevance in terms of abuse of office.

Through legislative decree no. 76/2020 (converted into law no. 120/2020) part of the provision referred to in the art. was thus rewritten again. 323 c.p., providing that the conduct of the public official can be considered criminally relevant only in the presence of violation of «sspecific rules of conduct expressly provided for by law or by acts having the force of law and from which no margin of discretion remains». It is clear that the rationale for the legislative intervention carried out with the so-called. decree «Simplifications» mean, again, determine the further narrowing of the scope of applicability of the case referred to in the art. 323 c.p., so as to prevent the criminal judge from any potential interference in administrative decisions, avoiding the phenomenon - considered harmful above all due to the historical moment in which administrators are required to respond quickly and effectively to the needs of the community - of the so-called. “fear of signing”.

It's necessary, first of all, specify that the regulatory change affected only the party (previously mentioned) relating to the reference parameter of the conduct carried out by the public official, without prejudice to the remaining provisions of the art. 323 c.p. essentially unchanged. This determines that what was previously stated regarding the structure of the case - constructed as an event crime -; structure of the subjective element – ​​conceived as intentional and no longer specific malice –; must irrefutably be considered as still existing.

Another aspect of particular importance, not affected by the reform, concerns the hypothesis of an act adopted by the public official in the event of a conflict of interest of himself or of a close relative or in the case of an act adopted in violation of «further requirements". As underlined several times, in such cases, the public official or person in charge of a public service is required to abstain from carrying out his/her duties. It is clear that the rationale for this obligation can be identified in the need not to "contaminate" the integrity of the administrative activity, which must always be carried out according to impartiality criteria.

This choice could be a harbinger of significant concrete meaning, since the assessment of failure to abstain would appear to be independent of the assessment of violation of specific regulatory rules by the public official, in consideration of the presence of the disjunctive conjunction «or». Thus opining, therefore, also according to the new incriminating case, the specific hypothesis of failure to abstain in the case of one's own interest or that of a close relative could lead to the criminal liability of the public official, despite the lack of identification of the specific law governing the specific case.

As underlined several times, therefore, interpreters and jurisprudence will be entrusted with the task of identifying the boundaries of the new punishable conduct, delimiting the new scope of punishment for abuse of office.

Without a doubt, the legislative activity has determined the further reduction of the area of ​​operation of the incriminating law, mostly, with respect to the relevance of the violation of rules contained in regulations, than under the post-reform regulations 1997 they were expressly mentioned among the conditions for the punishability of the official's conduct. Furthermore, in consideration of the new textual data, all acts in which there remain margins of discretion for the directors must be considered non-reviewable by the criminal judge, Furthermore, it is necessary to identify a "specific" law that regulates the necessary conduct - possibly not carried out by the official - for the purposes of checking the lawfulness of the behavior.

By rigidly interpreting the new regulatory data, the considerable narrowing of the scope of the art. 323 c.p..

Although the rationale for the Legislator's intervention can be considered acceptable in terms of protection for public administrators, probably the radical regulatory choice could have been parameterized differently.

It's not uncommon, indeed, that rules of conduct placed upon public officials are contained within regulatory sources, so these, due to the new regulatory provisions, they could no longer in any way constitute a reference parameter for punishable conduct. Furthermore, to exclude "ad we enjoyed"the criminal relevance of the acts carried out in expression of "discretion" could further be excessively reductive for the operation of the criminal law. He must, indeed, highlight that the tradition of administrative law has identified the existence of different categories of discretion: pure and technical. As is known, the hypothesis of pure discretion occurs when the legal system allows the public official to choose the path to follow to pursue the public interest between different options, all of which are abstractly legitimate.. It recurs, instead, the hypothesis of technical discretion where the public official must identify a "rule" of a technical-scientific nature to be applied to the concrete case in order to pursue the public interest, so the choice in this case cannot be considered completely "free", being the official independent at the time of choosing the "rule" to apply but being bound to it and its effects in its application phase, without being able to concretely modulate its effects.

Leaving aside the peculiar issues regarding administrative discretion, which would undoubtedly make this contribution bombastic, is more appropriate, here, limit oneself to the consideration relating to the greater favor compared to a regulatory intervention that had excluded the possible interference of the criminal judge only and exclusively with respect to the hypotheses of pure administrative discretion, so as to remove the "spectre" of excess power from the criminal legal landscape. Admitting, instead, the review of the criminal judge with respect to administrative action characterized by technical discretion, which undoubtedly must be considered more "constrained", and so, more easily reviewable.

Instead, the choice made by the Legislator, as highlighted, would seem to have led to the excessive and unjustified reduction of the scope of punishment in relation to hypotheses that could well lead to a significant damage to the legal good protected by the incriminating rule.

The restriction of the area of ​​operation of the art. 323 c.p. would have thus determined a partial the abolition of crime limited to facts committed in violation of the regulations; or in violation of legal provisions from which specific and express rules of conduct cannot be derived; or in violation of rules of conduct that leave margins of discretion (without distinction administrative or technical).

Consequentially, should this reconstruction be accepted by jurisprudence, the partial abolition of the criminally relevant conduct would impose - pursuant to art. 2 comma II c.p. and the art. 673 c.p.p. – the dismissal of pending proceedings during the investigation phase; the acquittal of the accused in ongoing trials; as well as the revocation of sentences that have already become final and issued on the basis of assumptions that have now been removed from the regulatory data.

In order to avoid excessively disruptive consequences in terms of the protection of the protected legal asset, however, a different solution could be envisaged which would effectively lead to the mitigation of the abolishing scope of the legislative innovation currently under discussion. As previously highlighted, indeed, the second part of the first paragraph of the art. 323 c.p. was not affected by any regulatory changes, so that jurisprudence could use the "viaticum" constituted by the phrase «failure to abstain" in case of "own interest or that of a close relative or in other cases prescribed» to recover application space in favor of the incriminating rule.

The presence of the disjunctive conjunction «or», as previously highlighted, in fact, it allows the presence of an explicit violation of the law to be considered as an alternative for the purposes of configuring the crime (as indicated in the first part of the provision) o, Conversely, the presence of one of the circumstances subsequently described by the regulatory provision (in case of failure to abstain where there is an interest of the public official or one of his close relatives or in other prescribed cases).

Adhere to the last of the proposed reconstructions, therefore, would determine the continuation of the broad scope of application of the case referred to in the art. 323 c.p.; what has been said could constitute a reversal of direction, reached in via pretoria, with respect to the rationale of the legislative intervention. For the reason highlighted last, it will be an arduous task for jurisprudence to find the most suitable balance between opposing needs: protection of the protected legal asset and remedy the so-called. “defensive bureaucracy”; leaning towards the interpretative reconstruction aimed at rigidly applying the new regulatory provision thus considering it partially abolished, and therefore largely scaled down, the scope of applicability of the art. 323 c.p.; that is, preferring the last proposed reading aimed at recovering application space for the regulation of abuse of office.

However, what emerges from the examination of some recent judicial rulings makes a final critical consideration necessary.

The Jurisprudence of the Supreme Court, indeed, beyond some arrests, since the first years following the reform of 1997 seemed to have firmly supported the interpretative line aimed at eliminating the scope of the art. 323 c.p. the hypotheses of conduct implemented by the public official in the exercise of his administrative discretion. As recently clarified by the Court of Cassation with sentence no. 49485/2019 «on the subject of abuse of office, the violation of the law can be found in all cases of conflict between the provision and the regulatory provisions contained in primary or secondary sources which define the restricted profiles, formal or substantial, of power and otherwise, instead, excess of power"^[10]. This direction would demonstrate the awareness of the Legitimacy Jurisprudence aimed at obviating any possible excessive interference within the administrative prerogatives whose review is, at most, referred to the knowledge of the administrative judge. What was last stated would prove, therefore, how the particularly incisive intervention implemented by the Legislator could have been implemented - and indeed could perhaps have achieved a more effective result by balancing the interests in question even better - through regulatory mechanisms of a different nature, or in any case it could have been better thought out in order to overcome the inconveniences that such a reform with great impact on the case referred to in art.. 323 c.p. can generate.

In conclusion, in light of the hermeneutic considerations highlighted above, we can only await the subsequent jurisprudential interpretation of the Supreme Court in order to resolve any potential interpretative doubts that pertain to the partial abolition and the new application boundaries of the troubled case of abuse of office.