The never-ending saga of abuse of office

The legislator tried again in 1997, further narrowing the scope of abuse of office. Which now only occurs if, in order to procure unfair advantage or damage, the official acts 'in breach of the law or regulations'.

The aim is clear: to limit criminal control over administrative action to cases where a specific rule is violated. That is to say, the reform intends to take away from the judiciary the power to decide on the basis of evanescent criteria of morality which behaviour of the official is censurable.

At first, the judiciary goes along with the spirit of the reform: there is abuse of office - the Supreme Court confirms - when rules are violated that are not merely principled, but specifically prohibit precise conduct. The separation of powers is thus respected.

The good weather, however, is short-lived. The wind picks up as early as 1998. According to the Roman judges, abuse of office is also abuse of office when general rules and the very vague principles of good performance and impartiality under Article 97 of the Constitution are violated: obviously interpreted on a case-by-case basis, according to subjective criteria, by the decision-makers. In short, the 1997 reform is thwarted by case law.

In 2020 came the legislature's response, limiting abuse of office to cases of 'violation of specific rules of conduct expressly provided for by law or acts having the force of law and from which no margin of discretion remains'. However, the intervention did not have the desired effects.

The twists undergone by abuse of office have contributed to concretising the bleak image of a 'total' criminal law evoked by Filippo Sgubbi in his 2019 book of the same name: 'where what counts more than the result is the manner in which the case is conducted and the purposes instrumentally pursued: that is, to achieve through the process collateral effects, such as the consolidation of political supremacy, education and the mobilisation of the community through fear'.

This is today. The legislature's reaction is strong: it does not once again amend the rule on abuse of office, that is, it does not give the judiciary one last chance to moderate interference in administrative activity. Instead, it eliminates that figure of crime.

In response, fourteen judges - most recently, the Court of Cassation - are calling for the restorative intervention of the Constitutional Court to bring abuse of office back to life. In vain.

Now there is a protection gap, which could generate yet another judicial counter-reaction, consisting of the expansion of the areas covered by far more serious crimes, such as corruption. Is this the lesser evil? I believe the saga is not over.