SELECTED NOTES ON THE FIGHT AGAINST CORRUPTION IN ITALY AFTER THE SO-CALLED “MANI PULITE” (“CLEAN HANDS”) INVESTIGATION Eugenio Fusco In the nineties, several investigations on corruption and bribery revealed the exis- tence in Italy of an established system of kickbacks paid by entrepreneurs to support the costs of politics and obtain in exchange the awarding of public contracts, the prices of which were consequently kept higher and higher. The prosecutors’ investigations, which were named mani pulite (clean hands), erased an entire establishment: they caused the fall of the now emphatically called First Republic. Ever since the tangentopoli investigations of the nineties, the money from com- panies to public officers and politicians was transferred not only through hard cash but also through advanced systems: for example, payments to bank accounts held by off-shore entities or as fees paid for consulting contracts. Since that period, many things have changed on the subject of corruption. On the one hand, the system has become more efficient and, therefore, more im- pervious to investigation. We have often found out that the bribed official does not obtain from the briber a cash payment, not even through foreign bank accounts or with a formal justification, but the participation in the business, either through third parties or a cover-up com- pany. For example, when a company is interested in obtaining a large public contract, it often establishes smaller entities, which will manage collateral activities related to the main operations. It is not rare that those who have facilitated the awarding of the contract have an interest in these entities through shares or quotas received from the briber and held in the name of a trusted third party. It is evident that it is more difficult to investigate when there are no cash flows. Although these changes happened on the bribers’ side, several amendments were fortunately made to the law and regulations on corruption and bribery. The mani pulite experience, for its magnitude and the stir caused abroad, strongly influenced the public and, consequently, lawmakers. In particular, that experience: 227 EUGENIO FUSCO showed how much corruption burdens free competition; showed that many times the companies, which benefited from the crimes committed by their employees, did not pay any price; in Italy, several of the offenders who had plea-bargained their sentence, re- ceived their seized goods back, as at that time plea bargaining did not entail the confiscation of the proceeds from the crime1. At international level, the reply was prompt. In particular, I make reference to: the Convention against corruption involving officials of the European Com- munities or Officials of Member States of the European Union (signed in Bruxelles on 26th May 1997), And especially to: the O.E.C.D. Convention on combating bribery of foreign public officials in international business transactions (signed in Paris on 17th December 1997), which, among other, obliges the underwriting Parties to take such measures as may be necessary to provide that the bribe and the proceeds of the bribery of a foreign public official, or property the value of which corresponds to that of such proceeds, are subject to seizure and confiscation or that mone- tary sanctions of comparable effect are applicable. (art. 3, par. 3). The aim is that: crime must not pay. New types of crimes, methods of confiscation and, above all, the principles of the law regarding the liabilities of entities for crimes committed by their employees were introduced in Italy with law n. 300/2000, which implements in Italy the provisions of European Union regulations. In particular, the crime defined as “Embezzlement, extortion, corruption and in- stigation to corruption of members of EU bodies and officers of the European Com- munities and foreign States” was introduced with art. 322bis of the Italian criminal law code. It is the extension to international subjects of the existing provision of the code with reference to the Italian public officials. This provision is very important 1 Prior to the introduction of art. 322-ter of the Italian criminal law code, the sentence pur- suant to art. 444 of the Italian criminal procedure code did not entail the application of the optional confiscation, based on the existing wording of art. 445 of the Italian criminal pro- cedure code (later amended with law n. 134 dated 12th June 2003). Consequently, the pro- ceeds of the crime stayed with the offender and, if previously seized, had to be returned by the judge upon the issue of the sentence. Please note that the lack of an actual “reputation damage”, which should have followed the sentence – although by plea bargain – further depreciated the results achieved through the investigations. 228 SELECTED NOTES ON THE FIGHT AGAINST CORRUPTION IN ITALY AFTER THE SO-CALLED “MANI PULITE” (“CLEAN HANDS”) INVESTIGATION because it enables to conduct investigations and trials on relevant international tenders. Law n. 300/2000 also introduced, for crimes involving public officers, an impor- tant method of confiscation, which, in addition to making the confiscation of the proceeds mandatory, also provided for the confiscation of the “equivalent”, in the sense that when it is impossible to seize the goods which represent the proceeds from the crime, the confiscation may apply to other goods belonging to the offender for a corresponding amount (art. 322-ter criminal law code). The most important new provision included in Law 300 is the liability of entities for crimes committed by their employees. The provision was implemented with Legislative Decree n. 231/2001, which represents a turning point and sets a new balance by introducing the liability of the entities in addition to the liability of the individuals. This provision also includes the confiscation of the proceeds from the crime at the expense of the entity. This makes the confiscation more efficient as the assets of an entity are usually larger than the assets of an individual and are easier to be ascer- tained, being presented in the financial statements. In particular, art. 19 of Legislative Decree n. 231/2001 provides that with a con- viction sentence the confiscation of the price or proceeds of the crime always applies against the entity, save for the portion which can be returned to the damaged party. The rights acquired by bona fide third parties are excluded (paragraph 1). When it is impossible to execute the confiscation pursuant to paragraph 1, it applies to cash, goods or other valuable utilities for an amount equivalent to the price or proceeds of the crime (par. 1). In a recent sentence with reference to corruption, the Preliminary Investigation Judge (“GIP”) at the Court of Milan, while applying a sanction on request (art. 63, Legislative Decree n. 231/2001), expressly stated that confiscation, as an adminis- trative sanction pursuant to art. 9 with particular reference to art. 19 as opposed to its general application, represents a fundamental and unfailing instrument for the cancellation of the proceeds and price of the crime in order to paralyze or neutral- ize the exploitation of the offence for profit. Therefore, it must be applied, even during special proceedings, for an amount corresponding to the proceeds from the crime (Milan GIP, Sentence n. 1508 dated 25th July 2006, liable party SIEMENS A.G.). Another important aspect of this regulation should not be ignored: the application of the entity responsibility gives back to the criminal proceedings its original feature, which was getting lost: a strong censure, able to create a reputational damage. 229 EUGENIO FUSCO Since the early applications of Decree n. 231 we have understood that criminal proceedings cause a worse reputational damage to entities, especially the best-known companies, than to individuals. This strengthens the fight against corruption. 230.