The abolition of abuse of office is not unconstitutional

The repeal of abuse of office, one of the cornerstones of the criminal policy of the Meloni government,is not unconstitutional. This was decided by the Constitutional Court in a ruling that has so far only been anticipated by a communiqué, with the grounds to be filed in a few weeks. In the meantime, however, two conclusions can be drawn from the communiqué: the Court, with the rapporteur being perhaps its best criminal lawyer, Francesco Viganò, considered the questions raised by the 14 judges of merit and the Court of Cassation to be admissible, and this was not to be taken for granted. That is to say, it considered that it could intervene in the merits of the legal objections raised, despite the fact that its pronouncement of the unconstitutionality of the abolition of abuse of office (in force for less than a year) would have had the effect of worsening treatment (in malam partem) for suspects and defendants.

Central to the issues raised by the judiciary was the transgression of the international commitments undertaken by Italy with the accession to the Merida Convention on the fight against corruption, from which, the numerous orders of referral to the Constitutional Court claimed, would derive a specific obligation to preserve in the Italian legal system a specific criminal sanction to punish conduct previously covered by the offence of abuse of office.

The Court was not of this opinion because in the meagre communiqué issued it emphasised that neither the obligation to provide for the offence of abuse of office, nor the prohibition to abrogate it if it is already present in the national legal system, can be derived from the Convention. In essence, there is no obligation to incriminate, and this was one of the points argued in the public hearing by the Avvocatura dello Stato, from which Italy would have shirked by the choice of the Nordio administration.