The Italian Supreme Court has, with its recent judgment no. 21701 handed down on May 7, 2013, held that the reform introduced by Law 190 of 2012 has not led to the repeal of the criminal conduct of extortion previously punished by art. 317 of the Italian Criminal Code.
A judge and a person known for being frequently appointed as an expert witness had been convicted, in both first and second instance, of conspiring in the attempted extortion of a legal representative of a partnership.
The story originated from the attempt of a well-known expert witness to induce and/or cause the legal representative of the company in question to pay a sum of € 15,000 to a judge with a view to promptly obtaining the provisional execution of a summary judgment for nearly 100,000 Euros, which had been opposed by the debtor. The company was in poor economic conditions and, subsequently, was declared insolvent.
In any case, one year after the filing of the statement of defense, the Judge granted, the provisional execution of such decree of injunction.
In the criminal proceedings that commenced subsequently, both the judge and the expert witness were convicted of attempted extortion and filed an appeal against such conviction before the Supreme Court, which rejected such appeal.
The aforementioned judgment is particularly interesting in having analyzed the relationship between the offense of extortion provided for under article 317 of the Criminal Code and the offense of inducing a third party to give or promise a benefit which is now punished by 319-quater of the Criminal Code (which was introduced by the aforementioned Law 190/2012).
The Court’s ruling appears to be justified in the light of the defendants’ defensive argument, according to which, the new rules would lead to the irrelevance of the criminal offense (induction) with which the defendants had been charged (which was however, considered to be groundless on the basis of the following considerations).
First, the Court noted that the recent reform had proceeded to split extortion into the offenses of extorting under duress (article 317 of the Criminal Code) and inducing unlawfully a third party into giving or promising a benefit (article 319 quater of the Criminal Code).
On this point it is stated explicitly that while the previous version of article 317 of the Criminal Code considered as alternatives of equal value the offenses of extorting under duress and inducing unlawfully someone into giving or promising a benefit for oneself or fpr a third party, taking advantage of one’s power, the new discipline has only kept under article 317 of the Criminal Code the offense of extortion, creating a new offense of induction (the latter offense being of a residual nature – i.e. “unless the fact constitutes a more serious offense” – punishing whoever promises money or other benefits, as provided foe under paragraph of Article. 319 quater of the Criminal Code.
The defendants,’ argument that the conduct of induction was not criminally relevant was groundless since such conduct was punished by the old article 317 of the Criminal Code, and is still punished under article 319-quater of the Criminal Code (as was made clear by the Supreme Court judges who ruled that there was contiguity between the old offense of extortion provided for under art. 317 of the Criminal Code and the new offense of induction punished by article 319-quater of the Criminal Cod)e
This is, moreover, confirmed by other very recent judgments of the Supreme Court, and in particular by judgment no. 8695 of 21 February 2013.
The Court, in particular, focused its analysis of the second paragraph of article 319-quater of the Criminal Code, according to which, in the cases provided for under the first paragraph thereof, whoever gives or promises money or other benefits shall be punished with imprisonment of up to three years. The legislator has imposed, for the first time. criminal sanctions on the person who gives or promises money or other benefits (which is a clear change from the old wording of Article. 317 of the Criminal Code which, as noted, did not punish the subject who was induced).
The Supreme Court has held that the person who gives or promises something which is not due, cooperates in helping the public official or civil servant gain an undue advantage and must, as a result, be punished for this.
In summary:
• The crime of inducing a third party pursuant to article 319-quater does not differ from the old offense of extortion by induction;
• The conduct of induction previously punished by article 317 of the Criminal Code, is now punished by art. 319-quarter of the Criminal Code;
• The person who is extorted into promising or giving an amount to a public official, is punished with a term of imprisonment of up to three years.
