INDICE
DOTTRINA

Maria Immordino – Strumenti di contrasto alla corruzione nella pubblica amministrazione tra ordinamento italiano ed ordinamento brasiliano. Relazione introduttiva – 395
Emerson Gabardo – A nova lei anticorrupção brasileira: aspectos controvertidos e os mecanismos de responsabilização das pessoas jurídicas – 415
Fabrício Ricardo De Limas Tomio e Ilton Norberto Robl Filho – Controle do poder judiciário: estruturas teóricas da ccountability judicial e análise crítica da autuação do Conselho nacional de justiça – brasileiro de 2005 a 2013 – 427
Estefânia Maria De Queiroz Barboza – Corruzione e impunità in Brasile – 453
Eneida Desiree Salgado – Finanziamento ai partiti politici in Brasile: corruzione e democrazia – 469
Ana Claudia Santano – O desenvolvimento de políticas públicas e o direito fundamental de participação política. A regulaçãao da atividade de lobby no contexto democrático – 489
Luca R. Perfetti – Sulla distinzione tra procedimento e processo. Diritto brasiliano e tradizione giuridica italiana alla luce della riforma del procedimento amministrativo introdotta dalla legislazione anti-corruzione – 501
Nicola Gullo – La politica di contrasto alla corruzione in Italia ed i soggetti responsabili della prevenzione della corruzione – 521
Sandro Amorosino – Il Piano Nazionale Anticorruzione come atto di indirizzo e coordinamento amministrativo
Francesco Manganaro – Trasparenza e obblighi di pubblicazione – 553
Alfredo Contieri – Trasparenza e accesso – 563
Margherita Ramajoli – Inconferibilità e incompatibilità di incarichi nelle pubbliche amministrazioni – 577
Cristiano Celone – Le responsabilità e le sanzioni per la violazione degli obblighi di pubblicazione e delle situazioni di inconferibilità e incompatibilità degli incarichi nelle pubbliche amministrazioni – 591
Elena Quadri – I controlli antima ia e il giudice amministrativo – 617
Mariaconcetta D’Arienzo – Prevenzione e repressione della corruzione con particolare riferimento alla disciplina del conflitto di interesse ed ai connessi profili della responsabilità – 637
Jole Buggea – Le white list: strumento di prevenzione del fenomeno corruttivo e delle infiltrazioni del crimine organizzato nel settore degli appalti pubblici – 675
Marcella Tropia – La figura del responsabile della prevenzione della corruzione negli enti locali – 687

Abstracts

INSTRUMENTS AGAINST THE CORRUPTION IN THE PUBLIC ADMINISTRATION BETWEEN ITALIAN AND BRAZILIAN LAW. INTRODUCITON

by Maria Immordino

This paper examines the anti-corruption policies in the Italian and Brazilian law to underline the similarities and the differences. After having individualized the causes of the corruption according to the principal international searches, the article analyzes the remedies that have been experimented by the Italian and Brazilian legislator.

THE NEW BRAZILIAN ANTI-CORRUPTION LAW: CONTROVERSIAL ASPECTS AND PENALTY MECHANISMS OF PRIVATE ENTITIES

by Emerson Gabardo

The paper aims to study the new Brazilian anti-corruption law. The text makes a descriptive analysis of the liability of private entities that relate to the State. Among the issues addressed, are spotlighted: the scope of the law; typified conducts in the law; penalties provided for in Brazilian legislation; the problem of independence of instances; the fence to bis in idem; and, yet, the administrative process punitive. Finally, the text emphasizes the subsidiary character of the judicial process.

CONTROL OF JUDICIARY: TEORETICAL STRUCTURES OF JUDICIAL ACCOUNTABILITY AND CRITICAL ANALISYS OF BRAZILIAN NATIONAL JUDICIAL COUNCIL (CNJ) FROM 2005 TO 2013

by Fabrício Ricardo de Limas Tomio – Ilton Norberto Robl Filho

The debate on the Reform of the Judiciary (Constitutional Amendment 45^th) was made to implement better mechanisms of judicial accountability and the expedite judicial process. Brazilian Judiciary has a strong institutional and decisional judicial independence after the 1988 Federal Constitution. The performance of the National Judicial Council (CNJ), created by 45^th Amendment, mainly promotes a partial redesign of the power in the administrative, disciplinary and financial judicial powers. The article analyzes how the constitutional powers and institutionalization process of CNJ have determined major judicial accountability (institutional and behavioral) and judicial efficiency. The method used institutional variables (constitutional powers of the CNJ) and empirical data to expand the understanding of CNJ’s decision making and outcomes (administrative judgments and resolutions) which allowed the growth of accountability in the judiciary institutions. The judiciary has become more accountable after the creation of the CNJ, however, this did not result in greater procedural efficiency.

CORRUPTION AND IMPUNITY IN BRAZIL

by Estefânia Maria de Queiroz Barboza

This paper aims to analyze the problem of corruption in general in the Brazilian courts, going after, the specific issue of impunity in the judgments of corruption cases from these courts. Also, exposes the problem of impunity due to structural difficulties of Brazilian system for what concerns the punishment. The article treats, also, of the issue of electoral justice that, although plays an important and independent role, in the sense of the warranty the campaign finance undeclared. Finally, faced the issue of campaign financing by private persons, which creates an environment that favors corruption.

POLITICAL PARTIES FINANCING IN BRAZIL: CORRUPTION AND DEMOCRACY

by Eneida Desiree Salgado

Contradicting the dominant juridical thought, is believed that exist alternatives to the political parties models. The parties are established by the modern Constitutions and it is absolutely necessary to reflect about their functioning and especially about their financing, which is very important in the democracy because it involves corruption questions. This paper intents to analyze the political regulation in Brazil, the public and private financing and offer suggestions to reform the financing system.

THE DEVELOPMENT OF PUBLIC POLICIES AND THE FUNDAMENTAL RIGHT TO POLITICAL PARTICIPATION – THE REGULATION OF LOBBYING ACTIVITY IN DEMOCRATIC CONTEXT

by Ana Claudia Santano

This paper aims to demystify the lobby activity, which is very marginalized by the society, but at the same time composes one undeniable reality in the power spheres. Therefore, through specialized doctrine review, it was intended to expose some concepts which are wrongly used as a synonymous, as interest groups, pressure groups and lobby. After, the lobbies’ actuation dynamics was described, differentiating themselves of corruption and influence peddling, in a trial to deconstruct this stigma which prevents any impartial analysis. With a constitutional basis of lobby in Brazilian case, it was asked why there is not any regulation, considering the fight against corruption context. In light of this, it should be highlighted the lack of interest of congressmen, lobbyists and including the society of proceeding with it, as a result of a social capital deficit currently visible in Brazil.

ON DISTINCTION BETWEEN THE PROCEDURE AND PROCESS. BRAZILIAN LAW AND ITALIAN LEGAL TRADITION IN

THE LIGHT OF THE ADMINISTRATIVE PROCEDURE REFORM INTRODUCED BY ANTI-CORRUPTION LAW

by Luca R. Perfetti

The article refers to the tendency to approach the administrative procedure for the purpose and function of the process, resulting from the introduction during proceedings of typical institutions of the court by the law n. 190 of 2012 (so-called “anti-corruption law”). Such phenomenon, entirely new on the European scene, but not on to the Brazilian, leads the author to investigate the origins of the distinction between administrative procedure and process, and to analyze the subsequent developments, along the trail dotted by Hans Kelsen and, as regards Italy, by Feliciano Benvenuti.

THE ANTI-CORRUPTION POLICY IN ITALY AND THE SUBJECTS RESPONSIBLE FOR PREVENTION

by Nicola Gullo

This paper analyzes the contents of the politics against the corruption in Italian law and it examines the principal phases of the formation of the administrative organization responsible for the prevention of the corruption. The most important role is that of the Anti-Corruption National Authority, the authority that approves the Anti Corruption National Plan and that controls the application of the legislation against corruption by the administrations

THE ANTI-CORRUPTION NATIONAL PLAN AS ACT OF ADMINISTRATIVE DIRECTIVE AND COORDINATION

by Sandro Amorosino

The Anti-Corruption National Plan (PNA), approved in 2013, in an important instrument for the implementation of the italian law against corruption, approved in 2012. This paper takes into exam its nature and role to conclude it is an act of administrative directive and coordination – defined “act of directive” – and highlights its deficiencies and limits of effectiveness.

TRASPARENCY AND DISCLOSURE REQUIREMENTS

by Francesco Manganaro

Trasparency – principle of the Administrative Procedure Act and in the Brunetta’s law on the organization – emerges as comprehensibility of administrative action in the anti-corruption legislation. The excessive disclosure requirements, established by the anti-corruption legislation, not always guarantee transparency. But it is a prerequisite for anyone to exercise the new right of “accesso civico”, when the administration is in default to the disclosure requirements.

TRASPARENCY AND CIVIC ACCESS

by Alfredo Contieri

The Legislative Decree No. 33/2014 introduced new requirements for publication on the web of documents, data and information access and a new form of civic access, distinct from the traditional access to administrative documents inspired to the principle of transparency. However the rules for publication in Italy are different from the American FOIA: it is not configurable an unconditional obligation to publication of all data and information held by public authorities, but only of documents contemplated by law.

INCOMPATIBILITY AND PROHIBITIONS FOR HOLDERS OF PUBLIC OFFICE

by Margherita Ramajoli

One of the most important innovations introduced by the overall and recent anti-corruption legislation (law no. 190 of 6 November 2012, and legislative decrees no. 39 of 8 April 2013) consists of the discipline of incompatibility and prohibitions for holders of public office. It constitutes a general tool for the prevention of conflicts between public interest and private interests, as well as a measure of subjective impartiality of public officials. The provisions concerning the incompatibility and prohibitions innovate deeply than in the past, as strike conducted previously admitted, and not concern all public employees, being taken into consideration only public managerial positions, internal and external, and other high-level office. The law marks a break with the past, even probably needs additions, clarifications and adjustments, as well as an inevitable break-in period.

ACCOUNTABILITY AND SANCTIONS FOR VIOLATION OF DISCLOSURE REQUIREMENTS AND INCOMPATIBILITY AND PROHIBITIONS FOR HOLDERS OF PUBLIC OFFICE

by Cristiano Celone

The adoption of the anti-corruption law, in November 2012, and two legislative decrees on transparency of information within public administration and incompatibility and prohibitions for holders of public office, in March and April 2013, represented a significant step forward in the fight against corruption in Italy. The law and the decrees require each public administration to put in place specific measures to prevent corruption. These include: the adoption of plans to prevent corruption and to ensure transparency and integrity within public administration; the online publication of many information on public administration and the correlative right of everyone to require their publication; strict observance of the rules on incompatibility and prohibitions for holders of public office. In order to ensure compliance with these provisions that aim to prevent corruption and to raise the level of transparency, efficiency and impartially within public administration, the legislature also implemented a supervisory and sanctioning system that acts as a deterrent relating to disclosure requirements and conflicts of interest for public officials. With regard to the sanctioning system, it will look at various types of liability and sanctions introduced by the laws in question.

THE ANTI-MAFIA CHECKS AND THE ADMINISTRATIVE JUDGE

by Elena Quadri

This article proposes to analyse the anti-mafia checks as introduced by anti-mafia legislation. These checks constitute an important tools for prevention of mafia infiltrations in the field of public procurement. In the first part, the author introduces different measures established by legislator, in particular the anti-mafia notice (“comunicazione antimafia”), anti-mafia alert (“informativa antimafia”), white list, integrity agreement (“patto o protocollo di integrità o di legalità”); the author shows, for each point, the main features and issues. Furthermore the author shows the emergency provisions for Expo 2015. Finally, the last part of the article focuses on the procedural viewpoint of anti-mafia checks.

PREVENTION AND REPRESSION OF CORRUPTION, WITH PARTICULAR REFERENCE TO THE RULES OF THE CONFLICT

OF INTEREST AND THE RELATED PROFILES OF RESPONSABILITY

by Mariaconcetta D’Arienzo

The article 6 bis of Law no. 241/90 emphasizes the prescriptive nature of the duties of absention and signaling conferred to the Official who is responsible of the proceedings and to the officials who are in the other situations prescribed in the Article 323 of the Criminal code. The provision emphasizes, more effectively than it has done in the past, the role and responsibilities of the recipients of those obligations, both in the investigative phase than in the decisional phase and it is characterized by the provision of a broad concept of conflict of interest that is also tackled only in its potential dimension. These considerations lead us to see in the analysed provision the conditions for annulment, even through administrative proceeding, of acts adopted in violation of those obligations, cause of responsibility for public damage, damages to the image and the prestige of the Public Authority (even just a potential level), for the outcry generated by the episode within the offices and on the relations between the Public Authority and citizens.

WHITE LISTS: AN INSTRUMENT TO FIGHT MAFIA INFILTRATION AND TO PREVENT CORRUPTION IN PUBLIC PROCUREMENTS

by Jole Buggea

Fundamental principles of public procurements such as competition, transparency as well as fair trading are affected by the phenomenon of corruption. This work focuses on white lists, that is an important instrument to fight mafia infiltration and to prevent corruption. Furthermore, it investigates the discretionary power of the Prefect and analyses the effects of simplification of the anti-Mafia law system.

THE OFFICIAL RESPONSIBLE FOR ANTICORRUPTION PLAN AT LOCAL LEVEL

by Marcella Tropia

Local level plays a strategic role in the fight against corruption due to the utmost importance of proximity to citizens and of local authorities’ responsibilities (public procurement, grants and financial contributions). Within this context, the Secretary of Municipality – who is the official responsible to ensure observance and implementation of anticorruption law in Municipalities and Provinces – is a key driver of this legal battle. The present article analyses the provisions related to this official responsible for anticorruption plan at local level through three different angles. Firstly the article lays out a review of the constitutional legitimacy of the rules regulating the division of powers between national and regional legislator (art.117 Cost.). Secondly, it sheds light on the reasons why the Secretary of Municipality. In other words, specific legal provisions do not apply to the Secretary of Municipality on one hand, and, on the other hand, applicable sanctions prevent form properly exercising his role and powers freely, hence placing him/her in a weak position.

L'articolo Nuove Autonomie 3-2014 proviene da Nuove Autonomie.

Indice
Dottrina

Antonio Ruggeri – Noterelle in tema di affido di minori a coppie di omosessuali – 5
Sandro Amorosino – Il Piano Nazionale Anticorruzione come atto di indirizzo e coordinamento amministrativo – 21
Mario R. Spasiano – Alcune riflessioni sul sistema universitario – 33
Roberto di Maria – La legge regionale siciliana di istituzione dei “liberi Consorzi comunali”: brevi note critiche sul processo di riforma dell’ordinamento degli Enti locali (e di governo territoriale) della Regione siciliana – 43
Lucia Corso – Populismo: un vocabolo ed (almeno) cinque accezioni – 67
Pierangelo Grimaudo – Il sistema integrato dei servizi sociali tra livelli essenziali, ruolo delle Autonomie, principio di sussidiarietà orizzontale e logiche di costo – 95
Paolo Tanda – Gli Organismi Indipendenti di Valutazione nelle Pubbliche Amministrazioni: disciplina ed aspetti critici – 117
Francesco Follieri – “Conflitti” e “collisioni” tra norme: tre domande al prof. Robert Alexy – 157

Giurisprudenza

Bruno Di Giacomo Russo – Regioni e concorso pubblico – 171

Abstracts

SHORT REFLECTIONS ON CUSTODY OF MINORS TO SAME-SEX COUPLES

by Antonio Ruggeri

The paper analyses as, according to a literal interpretation of the relevant legislation, to the homosexuals couplet should not be given the possibility to have in custody minors. Such conclusion should be reconsidered in the light of the principle of the prevailing interest of the minor involved, according to which the notion of family could subject to a reassessment, at least with reference to the issues of custody of minors. If the rule which admits the custody of minors only for the married couples should be unchanged, it could be sometimes wiser to admit different solutions. One of them could be the possibility to admit the custody of a minor for an homosexual couple in the hypothesis in which one or both partners would have a consolidate relationship with the child. In any case should be a new legislation which expressly provides this possibility.

THE ANTI-CORRUPTION NATIONAL PLAN  AS ACT OF ADMINISTRATIVE DIRECTIVE AND COORDINATION

by Sandro Amorosino

The Anti-Corruption National Plan (PNA), approved in 2013, is an important instrument for the implementation of the Italian law against corruption, approved in 2012. This paper takes into exam its nature and role to conclude it is an act of administrative directive and coordination – defined “act of directive” – and highlights its deficiencies and limits of effectiveness.

SOME REFLECTIONSON THE ACADEMIC SYSTEM

by Mario R. Spasiano

This paper takes as its starting point the analysis of the main reasons behind the decline which affected the Italian academic system over the last 30 years. Several endemic factors led to register serious decrease of the importance of the university role in the society, also in consideration of the general disaffection of the public opinion. The author points out how, in this context, recent legislative reforms do not appear suitable to generate substantial changes to overcome the current situation of academic crisis. After focusing on several aspects of the legislation (public funds assignment system; budget rules; academic recruitment procedures; research and teaching evaluation criteria) the paper highlights the risk of a further decrease of the social and cultural role of Universities: Italian legislation does not define a new and competitive academic project for the future, but, rather, aims to limiting public spending and subject Universities activity to heavier (…) processes of evaluation and control.

THE SICILIAN LAW REGARDING THE CREATION OF THE “LIBERI CONSORZI COMUNALI”: A SHORT CRITIC ON THE PROCESS OF REFORM OF THE SICILIAN LOCAL BODIES OF GOVERNMENT (AND OF THE LOCAL GOVERNMENT AS WELL)

by Roberto Di Maria

The Sicilian Parliament has recently approved a text named «Istituzione dei liberi Consorszi comunali e delle Città metropolitane». Coming after other two laws, regarding the same subject matter – that is modifying, or else abolishing the intermediate level of government: the “Province” – such text takes place, on one side, among the legislative measures bound to pursuit the rationalization of public expenses and, on the other side, aims to improve the responsabilità of the Institutions on guaranteeing both civil rights and public services. This Sicilian legislative initiative – or better, the whole process of institutional reform – is the occasion, then, to analyze both the financial topics connected to the “spending review” and the more general questions, regarding the revision of the Italian multilevel system of government. Finally, it may be assumed a synthesis on role and functions of the “Province”, and on the opportunity of their abolishment as well.

POPULISM: ONE WORD AND (AT LEAST) FIVE MEANINGS

by Lucia Corso

The essay aims at proposing five meanings of the term populism and at identifying underlying assumptions common to all. By signaling the difference between the US and the European approaches to the concept of populism, it will be advanced the claim that the predominance of the negative meanings, typical of the European tradition, has its roots in a deep distrusts in ordinary people’s moral and political wisdom.

THE EVOLUTION OF THE SOCIAL SERVICES INTEGRATED SYSTEM BETWEEN “ESSENTIAL LEVELS”, TERRITORIAL AUTONOMIES, HORIZONTAL SUBSIDIARITY, AND COSTS

by Pierangelo Grimaudo

This paper deals with the evolutionary paths of the Italian Model of Social Services since the entry into force of the Republican Constitution until the recent reforms of 2000 (l. 328/2000) and 2002 (l. 289/2002). The Author criticizes the mechanisms of control and of public expenditure because they have lowered the levels of protection of all fundamental rights somewhat linked to social policies.

INDIPENDENT ORGANIZATIONS FOR THE EVALUATION IN THE PUBLIC SECTOR: DISCIPLINE AND CRITICAL ASPECTS

by Paolo Tanda

This paper investigates the synergy between the Independent Organizations for the Evaluation (Organismi Indipendenti di Valutazione – OIV, the so-colled supervisor people), the National Anti-corruption Authority for the evaluation and transparency of the Public Administrations, (Autorità Nazionale Anticorruzione per la valutazione e la trasparenza delle Amministrazioni Pubbliche – ANAC), the management system and the staff (executives and clerical). The last one is subjected to the monitoring and the supporting and not to a real control, which is peculiar to the systems and not to the people. This synergy is provided for by the complex system of measurement and evaluation of the performance introduced by the Legislative Decree n° 150/2009. It is pointed out how the legislator moved from the external auditing of the State Audit Court they moved to the financial auditing and to the operational auditing to come to the current performance internal auditing. Then it has been analyzed the competences – of the utmost importance for the complex system under examination – given to the Independent Organization for the Evaluation and to the connected uses related to how to determine the Public Administrations concerned with the organization of the OIV and with their real independence. Finally, the paper examines closely the system of rules provided for in the Legislative Decree n° 150/2009 as to the appointment of the members of the Independent Organizations for the Evaluation, as it is one of the most important aspects through which the decree of reform wants to guarantee the basic nature of independence of the OIV.

“CONFLICTS” AND “COLLISIONS” AMONG NORMS: THREE (PROVOCATIVE) QUESTIONS TO PROF. ROBERT ALEXY

di Francesco Follieri

The Autor discusses Alexy’s distinction between rules and principles and his theory about how collisions among principles and conflicts among rules are (or ought to be) solved by judges. The analysis is conducted in the light of two examples of rules defeasibility. The paper shows that the judge balances by proportionality test even when rules collide with other rules or with principles. And, at least in the case of rules defeasibility and teleological interpretation, judges decide by rules taking into account underlying values and interests: in these cases rules “become” Optimierungsgebote. So three questions artise: 1) Is conflict among rules just a matter of validity? 2) How can you distinguish conflicts between rules and collisions between principles? 3) Can you still distinguish rules and principles just because the latter are Optimierungsgebote?

L'articolo Nuove Autonomie 1-2014 proviene da Nuove Autonomie.