Sanctions against corruption to the Council
Cassation's move: cumulation of confiscation and reparation too heavy. The issue concerns all major offences against the Pa
The punitive treatment for corruption and all offences against public administration is too heavy. So much so that the Constitutional Court has been called into question. It is the Supreme Court of Cassation, with Order 36356 of the Sixth Criminal Section, in which doubts are raised as to the constitutional tightness of the possibility of cumulation between confiscation and pecuniary reparation provided by Article 322 quater of the Criminal Code. Too much, objected the Court of Cassation, which intervened on the case of a member of the Guardia di Finanza, sentenced for bribery both to direct confiscation and equivalent of the price of the crime and to reparation in an amount equal to the amount subject to confiscation.
The most recent regulatory intervention on the subject is to be attributed to the "spazzacorrotti" law, No. 3 of 2019, by which the scope of application of the institution of the pecuniary reparation was also extended to the private corruptor. In addition, instead of the original provision that referred to 'what was unduly received', it was stipulated that the obligation must be parameterised to a sum equivalent to the price or profit of the crime.
The orientation of the Supreme Court
The Supreme Court emphasises how the interference of the rules has the consequence that confiscation, whether direct or for equivalent, must be ordered together with the pecuniary reparation. The consequence of this is that the convicted person is subject to a doubling of obligations that, even if of a different nature, have the effect of depriving the convicted person of twice the value of that unduly obtained from the crime.
Thus, if "the need to deprive the offender of the illegally obtained proceeds is not disputable", nevertheless "the further imposition of a pecuniary sanction, based on the same value, becomes detrimental to the principle of proportionality to the extent that the offence is already assisted by a suitably afflictive sanctioning kit".
Punitive repair function
The Court of Cassation, moreover, supports the thesis of an essentially punitive function of pecuniary compensation. The latter, in fact, does not depend entirely on the request of the injured party, entails an obligation to pay a predetermined amount and is not subject to graduation by the court and, moreover, is in addition to a particularly afflictive set of penal sanctions. The addition of the pecuniary reparation, on the one hand, erodes the sentenced person's assets by depriving him of value equal to that already taken from him by confiscation, on the other hand, adds a punitive sanction to a treatment already considered adequate.
