The Public Prosecutor must prove that the criminal behaviour, which consists of offering, promising, giving, or in the case of extortion requesting money or other benefits to or from a public officer, took place and that the individual acted intentionally with regard to the elements of the crime.
Under Article 317 of the IPC (extortion by a public official1) a public officer or person in charge of a public service2 will be guilty of extortion (concussione) if he abuses his functions or power by forcing a person to unduly give or promise money or an advantage to him or to a third party.
Pursuant to Article 318 of the IPC (bribery for performing acts in an official capacity), it is an offence for a public officer, acting in an official capacity, to accept a promise for or receive, for himself or a third party, compensation in the form of money or any other benefit of value, not due, in order to induce him to do an act related to his office. Article 320 extends this offence to persons in charge of a public service.
Under Article 319 of the IPC (bribery with regard to acts contrary to official capacity), it is an offence for a public officer to accept a promise for or receive, for himself or a third party, money or any other benefit of value, in return for omitting or delaying an official act or for performing acts in breach of the duties of the office. Article 320 also extends this offence to persons in charge of a public service.
Under Article 319 quarter it is an offence for a public officer or a person in charge of a public service, to abuse his functions or power to induce an individual to unduly give or promise money or an advantage to him or to a third party (inducement).
A specific offence of judicial bribery is set out in Article 319 ter when a bribe is paid or promised in order to favour or damage a party involved in civil, criminal or administrative proceedings.
Under Article 346 of the IPC (trading in influence), a person who exploits his or her existing relationship with a public official or a person in charge of a public service, by receiving money or any other economic advantage for himself or a third party as consideration for his illicit intermediation with that public official or person in charge of a public service, will be guilty of trading in influence. The provision is also applicable to the person who gives or promises the money or economic advantage.
Article 321 of the IPC extends Articles 318, 319 and 319 ter to the person offering the bribe.
Article 322 extends Articles 318 and 319 to cover bribery of foreign public officials so that it includes “persons carrying out functions or activities equivalent to those performed by public officials and persons in charge of a public service within other foreign states or public international organisations”.
Historically, the provisions on bribery contained in the IPC did not expressly provide for cases of bribes made through intermediaries; however the courts have interpreted these provisions broadly so as to cover such circumstances.
1. Under Article 357 of the IPC, a “public official” is an individual who practices a legislative, judicial or administrative function and may include notaries, policemen, judges, bailiffs, sanitary inspectors and physicians working for the national health service. The term “administrative function” means a role that is subject to constitutional law or an Authority’s instructions, which is characterised by the implementation and the demonstration of the intent of a public authority (ie through the authorising and certification of powers). Accordingly, it is sufficient that the individual carries out a public duty or a public service.
2. A “person in charge of a public service” is an individual who provides a public service, save for merely executing duties, and may include nurses, clerks employed for sorting mail, school caretakers and drivers of public transport. The term “public service” means an activity carried out under the same conditions as that of a public function, but does not entail practicing the relevant powers typical of a public authority.