Pecuniary reparation for corruption crimes: the Constitutional Court referred the assessment on the legitimacy of the sanction

On November 7th, Ordinance no. 36356 of the Sixth Section of the Italian Supreme Court was filed, which raises the question of constitutional legitimacy of Article 322-quater of the Italian Criminal Code. This article imposes pecuniary reparation on those convicted of the corruption crimes.

Pecuniary reparation for corruption crimes was originally introduced into the Criminal Code by Law no. 69/2015. Its regulation was further tightened following the amendments made by Law no. 3/2019 (so called “Legge Spazzacorrotti”). These amendments included the extension of Article 322-quater to the corrupting party and the amendment concerning the definition of the quantum subject to reparation, which shifted from the "unduly received amount" to the "sum equivalent to the price or profit of the crime".

As observed by the Supreme Court, the scope of the pecuniary reparation substantially coincides with that of the confiscation provided for the same crimes by Article 322-ter of the Criminal Code.

The Italian Legislator did not regulate any provision aimed at governing the relationship between the two institutes, for example, by providing for their alternative application. Consequently, in fact, confiscation is ordered together with pecuniary reparation, thus duplicating the obligations on the convicted person, which, although different in nature, ultimately have the effect of subtracting from the offender a value double that which was unduly obtained from the crime.

According to the Court, the suspicion of a violation of the principle of proportionality lies in this duplication. Although the limit of proportionality of the penalty has been affirmed by the Constitutional Court only in relation to custodial sentences, this does not preclude the same principle from being asserted also in relation to a pecuniary sanction.

Although the need to deprive the perpetrator of the corruption crime of illicit profits is not questionable, the imposition of a pecuniary sanction additional to that inflicted with confiscation and measured on the same value as the ablative measure, results in the violation of the principle of proportionality.

Considering these arguments, the Supreme Court deemed the question of constitutional legitimacy raised by the defendant's defense relevant and not manifestly unfounded. The defendant had been jointly hit by both confiscation and the pecuniary reparation sanction for the same act of corruption.

Therefore, we await the decision of the Constitutional Court, to which the documents have been transmitted, to find out how the sanctioning measures concerning corruption will be applied in the future.