The financial penalties for corruption are too severe

The penal treatment of offences against the public administration is unconstitutional. The obligation on the convicted person to pay a sum equivalent to the benefit derived from the offence violates the principle of proportionality of punishment. Crucially, this is combined with the mandatory confiscation of the same amount, with other items of compensation for the damage caused to the public administration, and with the custodial sentence imposed for the offence itself. These are the conclusions of the Constitutional Court in Judgment 108, filed yesterday and written by Francesco Viganò.

In the Court’s view, the financial compensation provided for in Article 322-quater of the Criminal Code (most recently amended by the ‘Spazzacorrotti’ Act), has, on the one hand, ultra-compensatory effects (including in relation to non-pecuniary damages, such as damage to reputation) vis-à-vis the aggrieved public authority and, on the other hand, effects vis-à-vis the convicted person that go beyond the restoration of their financial position prior to the offence. This consequence is already ensured by the concurrent application of confiscation or by restitution and compensation paid voluntarily to the administration itself.

‘Having therefore ruled out,’ the judgement emphasises, ‘both the “compensatory” or ‘restitutory’ nature in relation to the injured party, nor the ‘restorative’ nature aimed at restoring the status quo ante with regard to the perpetrator, there remains no option but to recognise (...) that the measure in question, whilst not constituting a ‘penalty’ in the technical sense used in the Criminal Code, was introduced by the legislature as a further deterrent and a more severe sanction against the criminal conduct in question, compared with what the prison sentences already provided for in the event of conviction for offences against the public administration are capable of ensuring.”

In the Court’s view, therefore, when viewed in these terms, financial compensation does not satisfy the proportionality test for punitive sanctions laid down both in Article 3 of the Constitution and in Article 49(3) of the Charter of Fundamental Rights of the European Union.

It should in fact be borne in mind that the fine forms part of a set of financial measures which are imposed in addition to the custodial sentence and ancillary penalties (as well as the non-criminal consequences of the conviction itself). It suffices to note, on the one hand, that the sum owed to the relevant public authority by way of financial compensation coincides with the amount of the separate mandatory confiscation of money or assets at the convicted person’s disposal; and, on the other hand, that twice that amount is payable by the convicted public official to the same administration by way of compensation for damage to its reputation.