What can be learnt from the shelving of the main strand of the Milanese investigation into town planning

To the Editor – The ‘reasonable suspicion’ that ends up taking the place that should rightfully belong to reasonable doubt is one of the features with which Claudio Cerasa, in these pages yesterday, effectively described – in the context of the request to dismiss the main strand of the Milanese urban planning investigation – the nature of modern judicial populism. When investigations are driven by the intention to uphold a moral code rather than to apply the criminal code, the shift from disapproval to accusation tends to be immediate and is underpinned by concepts capable of moving from one to the other without changing their name; amongst these, corruption is the most prominent, since a single term is used to denote both a social phenomenon and a criminal offence.

An exemplary illustration of this, right from the headline (“Se non è reato, non significa vada bene”), is the interview published yesterday in *Il Fatto Quotidiano*, in which Alberto Vannucci argued that there exists a form of corruption not covered by criminal law, consisting of any decision that deviates from the public interest due to specific influences; a broad concept, incorporated into the National Anti-Corruption Plan, which falls within the scope of administrative prevention. The effects become apparent when that concept shifts from prevention to criminal proceedings and becomes a criterion for interpreting the facts, thereby fostering a dangerous confusion between moral wrongdoing and criminal offence. In the Milan investigation, the Court of Cassation ruled out that the actions of a public official in a conflict of interest constitute, in themselves, evidence of corruption, and that the invocation of a systemic or environmental dimension can substitute for proof of an agreement. Article 318 of the Criminal Code, even after the 2012 reform removed the requirement for a specific act to have been performed, requires that the benefit be received or promised in connection with the exercise of official functions or powers, and thus a quid pro quo must be established in concrete terms. If this link is inferred from the context, the focus of the proceedings shifts from the individual act to the phenomenon as a whole, and the charge amounts to membership of a network of relationships with undefined boundaries, in direct conflict with the principle of individual liability in criminal law.

When shifted from the legal to the ethical sphere, the label of corruption – which persists even after the charges have been dropped – blurs the distinction between lawful and unlawful conduct, leaves the assessment of behaviour to a judgement devoid of predetermined criteria, and risks lending an apparently scientific veneer to the logic of suspicion. Anyone who has remained under investigation for over a year – sometimes subject to precautionary measures that were subsequently quashed – would not see their public image fully restored by any decision to drop the case if their conduct continued to be described as corruption, even if not in a criminal sense. The lack of transparency in town-planning procedures, where it exists, must be addressed with clearer administrative rules, the definition of which is the responsibility of the legislature and the authorities. The function of the criminal offence is different: it is called upon to mark, with the precision required by the Constitution, the point at which the reprehensible nature of an act becomes liability; a task it can fulfil only if that point is not shifted and redefined, from one alarm to the next, in line with the scale of the phenomenon one intends to combat. This is why the opposite of the title of the interview referred to holds true: ‘If something is wrong, it does not mean it is a criminal offence’.