Now that the political controversy seems to have partially subsided, it is worth returning to the all-Italian attempt to give oneself, or give oneself away, a sort of “autonomous law”, i.e. a system completely disconnected from both the European and the international regulatory framework. The Minister of Justice, who in recent weeks has shown himself to be excessively hyperactive in my opinion, has repeatedly declared and appears to have undertaken to repeal the law on abuse of office, even in the current weakened text, because it is a provision that would generate, in public officials and public service officers, an alleged “fear of the signature” which, in turn, would herald tremendous delays in the implementation and realization of the Pnrr projects.
I understand that sometimes we have witnessed an interpretation indeed zealousif not grotesque, of the abuse of office by diligent prosecutors who came to challenge a mayor for this crime after the jamb of a door of a school building had collapsed, skipping even the role of culpa in supervising janitors, employees, teachers, school principals, etc., but the reason given to favor the repeal of the law does not appear in the least appreciable, if only one thinks of the thousands of administrative proceedings that public officials process and conclude in the most absolute normality and fairness.
Evidently what is feared, rightly or wrongly, is the intervention of the magistrate in cases in which there is the most well-founded suspicion that the administrative procedure, whether it is a contract or a public tender, presents, so to speak, gray areas such as to integrate more than one criminal hypothesis. It appears at least that it is the mayors, through their most representative association, the Anci, who invoke this reform suspectedif only you read the daily news which very often see them involved in decidedly legal proceedings worrying.
What the minister does not say, however, is the existence of the Merida Conventionwhich our country proceeded to ratify with law 116 of 2009 which obliges us, in a clear and incontrovertible manner, to introduce, or to maintain, adequate regulatory provisions aimed at prosecuting precisely that abuse of office which one would like completely decriminalize. On the contrary, the law currently in force, recently modified to reduce the prosecutorial magistracy’s ability to intervene, is not without problematic aspects such as that concerning for example the Universitya sector in which the crime cannot be contested because it is sometimes the Regulations that are violated, sources excluded from the novella to the provision, does not appear at all compliant with the commitments undertaken by our country in the aforementioned Convention, because overly tolerant compared to what happens too often in our public administration.
“Each State Party shall consider adopting the legislative and other measures necessary to confer the character of a criminal offense, when the act was committed intentionally, on the act of a public official abusing his functions or position, i.e. to perform or to refrain from performing, in the exercise of one’s duties, an act in violation of the law in order to obtain an unfair advantage for himself or for another person or entity”, this is the text of the art. 19 of the Merida Convention which appears so clear that it does not deserve further considerations.
What is surprising, on the contrary, is the truly embarrassing attitude of the legislator, unfortunately sometimes without distinction of political affiliation, who does not grasp, or rather pretends not to grasp, the widespread sense of impunity which is perceived with respect to crimes against the public administration, obviously aggravated by the difficulty of carrying out effective and efficient investigations (for many crimes wiretapping and even less precautionary custody are not allowed), as well as by the new rules which provide for the non-admissibility after a certain period of time. In short, the current political class is very distant from the so-called civil society: while the latter invokes justice and certainty of punishment, the latter imagines decriminalizing certain serious crimes or weakening the activity of prosecutors or judicial police. With all due respect to the commitments made in Europe and elsewhere.