How Draghi will change gear on anti-corruption rules

10 May 20213 years ago babelfish

'Corruption can find nourishment in the excess and complication of laws. Therefore, regulatory simplification is generally an effective remedy to avoid the multiplication of corruption phenomena '', reads the Pnrr of the Draghi government. Will it finally be the beginning of a turning point? Cazzola's comment

One of the most important innovations that Mario Draghi introduced in the political debate is contained in the speech given by the premier at the opening of the judicial year of the Court of Auditors a few days after his government had obtained the vote of confidence of the chambers.

In my opinion, on that occasion Draghi hit the mark and indicated one of the points of the malfunction of the Public Administration. '

'There are two key words in this relationship (between Europe and Italy in the context of the NRP, ed ): trust and responsibility. Trust between institutions and the people who make them up, responsibility towards citizens. It is always necessary to find – added Draghi – a balance point between trust and responsibility: a search that is not simple, but necessary. Indeed, it is necessary to avoid the paralyzing effects of what is called the "flight from the signature", but also regimes of irresponsibility in the face of the most serious offenses for the treasury. Furthermore, taking into account that, in recent years, the legislative framework that governs the action of public officials has been “enriched” (the bitter irony is evident, ed ) with complex, incomplete and contradictory rules and with further responsibilities, including criminal ones. All this has ended up by unloading disproportionate responsibilities on public officials which are the result of faults and defects upstream and of a legal nature; with heavy concrete repercussions, which have sometimes jeopardized the effectiveness of the procedures for the awarding and construction of public works and private investments, many of which are of relevance ''.

In essence, Draghi in that speech highlighted the real “ external constraint '' that blocks the country: the action of the judiciary that has transformed criminal law into an arbiter of every action and initiative, including economic policy, on the basis of a presumption – often absolute as far as the investigating magistracy is concerned – to thwart omnipresent phenomena of corruption.

In this regard, Filippo Sgubbi – in his “ Total criminal law. Punish without law, without truth, without guilt. Twenty Theses '' published by Il Mulino in 2019 – had denounced the anomalous behavior of the judiciary and the effects produced at the expense of a normal civil life.

'' The criminal apparatus – explained Sgubbi – built to define the area of the offense and to legitimize the application of sanctions, becomes the support for the adoption of economic and social decision-making decisions ''. The '' institutional distortion '' was explained as follows: '' The jurisprudential decision becomes – according to the jurist – a decision not only of a legislative nature, as a rule of conduct, but also of economic-social governance centered on contingent opportunity ''.

But the criticism ('' the penal norms thus assume an unprecedented role. They are factors not of punishment, but of government '') did not stop there. '' The seizure of areas, buildings, a company or one of its branches, the seizure of an industrial plant and the like directly affect the rights of third parties. With these real precautionary measures – continued Sgubbi – the judiciary frequently enters into the merits of business choices and activities, censoring their correctness on the basis of widely discretionary and sometimes completely arbitrary parameters of the public administration ''.

These are pertinent reflections when the country is preparing to participate in a major operation of an economic nature supported by important resources capable of changing the course of its history. Obviously, the requirements of legality and administrative correctness are not in question, nor the vigilance and repression of possible infiltrations by criminal organizations. But it is a different matter to demonstrate – as it has been attributed to Piercamillo Davigo – the following orientation: '' It is no longer easy to send an undercover criminal police officer – here is the Grand Inquisitor's proposal – to participate in a competition 'contract and when someone wins it, saying' 'you don't have to win this race' 'stop it so let's do it first?' '.

If we do not want the Pnrr missions, even before Brussels, to be examined by the prosecutors, it is necessary to change mentality and disarm the rules that allow abuses (this is if you notice how the theorems of prosecutors often end up in null – or in the non-existence of the fact – when it comes to the sentence of a third judge). The PNRR seems to want to promote a different orientation.

Under the title '' Repeal and revision of rules that fuel corruption '' we find written: '' Corruption can find nourishment in the excess and complication of laws. Therefore, regulatory simplification is generally an effective remedy to avoid the multiplication of corruption phenomena ''.

Basically, it seems to understand (and share) that it is the anti-corruption rules that fuel its spread. In fact, the text continues by denouncing that: '' There are, in particular, some laws that can favor corruption more than others. It is therefore necessary to identify some of these norms as a matter of priority and to repeal or revise them. For example – the document continues – the rules on public controls of private activities, such as inspections, must be reviewed and rationalized, which from antidotes to corruption have often become an occasion for corruption. Duplication and interference between different types of inspections must be eliminated. ''

Then we arrive at the sancta sanctorum of the Severino law, the real populist slip of the Monti government: '' We need to simplify the rules of law no. 190/2012 on the prevention and repression of corruption and illegality in the public administration; and the provisions of the legislative decree n. 39/2013, on the non-transferability and incompatibility of positions held by public administrations and private entities under public control. At the same time, it is necessary to avoid that some rules created to counter – the music of the target does not change but reaches higher tones – the corruption impose on public administrations and private entities of public importance too heavy burdens and obligations. This is the case of the provisions on transparency which envisage – among other things – obligations to publish numerous acts; obligations not always justified by the actual needs of citizens to know and very onerous for the offices, especially for smaller entities. This is also the case of the rules that contemplate three types of access to documents and administrative information. A single platform for administrative transparency will ease the publication obligations of the various administrations on their own platforms; a single access to public information is capable of having obvious security effects ''.

Very conveniently, this passage – the timing and methods of application follow – is not found in the chapter of the Justice Reform, but in that of Simplification and Competition; proof that the theoretical framework against corruption not only produces opposite effects but represents most of those obstacles on the path of the economy and development that are usually defined, generically and euphemistically, '' bureaucratic delays ''.

This is a machine translation from Italian language of a post published on Start Magazine at the URL https://www.startmag.it/economia/come-draghi-cambiera-marcia-sulle-norme-anti-corruzione/ on Mon, 10 May 2021 04:08:05 +0000.