Fight against corruption build a resilient system Francesco

Fight against corruption: build a resilient system Francesco Rota 2018 IIAS International Congress (Tunisi, 25 th-29 th june 2018)

Premises Traditional approach of Public law • does not provide for a general regulation related to risky events; • generally faces these unexpected events introducing ex post special and tailored regulations with the aim of facing the emergency as effectively as possible. During last years European Countries • acknowledged the limits of an approach based on the recurring adoption of emergency measures • started to develop their own risk management regulation that aims at preventing emergencies (Simoncini).

Building a resilient system A resilient institutional system usually needs to find a balance between risk and emergency management. Recent years have witnessed an extension of the definition of emergency but it’s impossible to eliminate the risk: the higher purpose is the optimal government of risk situations (Rota; Tropea); Public decision related to how and if intervene in order to mitigate risks represent the result of political and legal evaluation on studies and issues not related to the legal system: to identify which risk shall be “regulated”, it is necessary to adopt an interdisciplinary approach. Risk management could be read as a specification of the precaution principle that shall always be balanced with other principles such as proportionality.

Measurability problems In order to draft a proper risk regulation sometimes there are measurability problems: Administrative law meets uncertain sciences. This is the case of fight against corruption (Gnaldi, Ponti).

Role of the perception The decisions are sometimes taken with an important role of the perception of a situation and with many difficulty of a reliable measurement BUT the perception is relevant because become behaviours and conduct and inspire the future: the perception and the illegality addiction could frustrate public policies (Patroni Griffi).

Fight against corruption in Italy A few years ago, in view of the critical situation connected with its place in international corruption ranking and because of international pressure, Italy realized it needed rapid and efficient emergency response interventions. So, Italy, according to OCSE Working Group on Bribery and to European commission suggestions, added preventive policies (ethical rules, awareness-raising measures, easy access to public interest information) to criminal law rules: the aim was to prevent corruption adopting taking a risk based approach and compliance models (Montanari).

A new idea of corruption? This approach is the fruit of a new idea of corruption that isn’t covered only by criminal law and includes even the maladministration (Arnone, Borlini). Behind maladministration there are infact illegality and a distorsion of public interest: conflict of interest, nepotism, patronage (Parisi). So International law (for example, Government Ethics Measures in OECD propose to use a risk based strategy: must reflects on bribery-risk resulting activity. OECD, Trust in Countries, 2000) every institution from its specific

This strategy has two phases: a risk assessment phase to verify the existence of risks, identifying risk factors; a risk mitigation and management phase to define measures to mitigate and manage it. The bribery in this widely interpretation is a multiform phenomenon but is usually based on models that are repetitive in their form and contents. So we need a multi-faceted strategy and a conscious direct. In this perspective corruption comes from frequent dysfunctions and needs general actions (Clarich, Mattarella) so we can explain the introduction of Italian preventive policy principal instruments.

Italian preventive policy principal instruments (l. n. 190 2012) Autority that fights corruption (ANAC); An Anti-Corruption Planning system; A responsible for the prevention of corruption; Ineligibility; The limits to give management positions in public administrations; Incompatibility for public manager; Transparency code; Protection of whistleblower; Codes of conduct on ethics and integrity for public officials.

Anac has Many function of control, prevention and fighting corruption in public administration and of surveillance and control over the effective application and efficiency of the measures adopted to prevent bribery and for transparency; Inspective powers; Powers of order; Sanctioning powers; Regulating powers (guide lines).

Italian anti-corruption planning system Anti- corruption plans contain guidance on risk mapping and valutation, sampling of the riskier procedures, managerial rotation, protection of whistleblowing. The plan contains the organizational changes necessary to prevent corruption. All the public administrations must take an anti-corruption plan, reflecting on bribery-risk resulting from its specific activity. Application of these tools is not easy and has no immediate effect. Furthermore there is the risk that they will be taken just as a fulfillment because civil servants don’t know how do in practice risk management (Patroni Griffi).

Hope OCSE believes that the suggested measures make it possible to modernise the public service in general, and in particular to make the regulations more stringent, to ensure transparency in the administration and in financing political parties

Reality In a context where the rules are complex and unclear, like in italian context, civil servants are more likely to make mistakes. So they tend to escape from decisions or use a defensive approach in their work: In the first case, the adiministrative activity can come to a standstill; in the second case, the adiministrative activity is delayed asking for preliminary wiews, to avoid responsibility for the choice. So, the multiplication of law sources with an over-regulation (laws, secondary sources, soft law acts –including for example Guidelines of the Italian National Anti-Corruption Authority-, and case law) and the multiplication of decision makers (judges, autohority) may become a cause of maladministration.

Fight against corruption: the role of citizens Bribery doesn’t like transparency of decision-making processes of public administrations and engenders distrust of citizens in public institutions and in democratic legitimation mechanisms. The transformation of rights in privileges and the lack of confidence in the value of the worth contribute to the spread of the phenomenon (Patroni Griffi). Accountability, integrity, public ethics, transparency are instruments to fight corruption in a systematic way. It’s very important that citizens attribute to bribery negative value and that they have an active approach, superintending public activities.

What about? 1/3 The introduction of preventive policies had the merit of introducing an intervention useful to prevent bribery but had a negative impact on complexity of administration and on certainty of the rules governing the correct exercise of public powers. (Situation is being further exacerbated by staff quality and by understaffing of ANAC). In this context civil servants are often afraid of deciding. So this system encourages maladministration and maladministration is one cause of the bribery. The interpretation of anti-corruption planning activity as an bureaucratic procedure not aimed at performance is part of this problem.

What about? 2/3 In Italy in the past there has been an unjustified enlargement of the application of rules established to face the emergency. So emergency has been enlarged involving even not-emergency situations (for example big events like Milan EXPO). To introduce simplified procedures is a perfectly natural physiological response to emergency situations but an unjustified expansion of this use contribute to maladministration. The implementation of procedures needed to prepare anti corruption plans is a massive effort for public administrations and has little effects in front of systemic corruption.

What about? 3/3 Italy still has not done enough to fight political corruption: the policy funding, conflict of interests, political ethical codes, lobbies, transparency and democracy of the parties aren’t regulated with a problem of political accountability. Another difficulty is the relationship between political leaders and administrative management. In Italy, there is a system inspired by spoil system but frequently the target are individuated in a form wich doesn’t permit a real check on management results with a negative impact on the performance (Cerbone, Esposito, Rota).

The fight to bribey between risk and emergency management In the fight to bribery the balance between risk and emergency management sees predominantly risk management policies represented by preventive policies and criminal law rules. The Italian Constitutional Court requires that all the measures respect principle of proportionality and principle of reasonableness and must consider constitutional values and human rights. But recently in a case law of (administrative) national courts (Councile of State, V, n. 1286, 2018) with regard to “interdittive antimafia” (anti-mafia banning, an instrument against criminal organisations. When there are indications –but not evidences- about a connection of an economic operator to a criminal organization is possible block him and don’t let him conclude contracts with administrations), the Council of State has enlarged the scope of the law and in absence of preconditions normatively planned, has applied the legislation and banned a President of counsil of a town for a incompatibility regarding his brother and not him. The enlargement of the scope of the law is justified by the court with the presence of mafia in the city and the lack of political neutrality. Scholars have criticized this case-law and consider it in contrast to the fundamental values of the system (Pinto). So the emergency perspective enter in the Italian system of fighting corruption.

Conclusions In Italian legal framework there are many tools to fight corruption with an approach risk oriented. Usually a resilient institutional system needs to find a balance between risk and emergency management. The fight against corruption is different: we don't need emergency rules but an efficient system. Quality of regulation, efficiency of administration, proper conduct of open competitions are the basis for a resilient system. This is the paradox of fighting corruption: the bribery is based on maladministration and the bribery is a consequence of maladministration.

How to get out? Doing what we can. Firstly by strengthening ethics of citizens and of civil servants. But is difficult because ethic is an abstract concept; but It’s possible to enforce citizens' confidence in democratic institutions and the rule of law and in the value of the worth. Secondly improve the quality of regulation and of administrative procedures.