Malabu Saga: Anti-corruption experts express concerns over Italy’s actions against Milan prosecutors

The anti-corruption experts worried that it appears the two Milan prosecutors were being targeted to discredit them.

The removal of two senior Italian prosecutors from Milan’s International Corruption, who were handling the Nigerian oil block OPL 245 bribery case in Milan, has raised concerns about Italy’s commitment to enforcing international anti-bribery laws, Global Anticorruption Blog reported on Thursday.

A group of experts comprising prosecutors, lawyers, academics, anti-corruption advocates and leaders of anti-corruption-focused civil societies, among others, around the world raised their concerns in an open letter to the Antibribery Convention’s Working Group of the Organisation for Economic Co-operation and Development (OECD).

PREMIUM TIMES reported that an Italian court in Brescia went ahead to convict the two Milan prosecutors, Fabio De Pasquale and Sergio Spadaro, over charges arising from their conduct in the trial of oil giants, Shell and Eni, regarding the OPL 245 widely called the Malabu Oil saga in Nigeria.

The court, on Tuesday, handed down an eight-month suspended sentence to the prosecutors after finding them guilty of charges of refusal to perform a duty by withholding documents that could have better helped the defence of Shell and Eni, which were eventually acquitted in the trial.

The group of anti-corruption experts are worried that it appears the two Milan prosecutors were being targeted to discredit them.

It added that the development may undermine Italy’s role in global anti-corruption initiatives and could potentially breach its obligations under the OECD Anti-Bribery Convention.

Under the convention, the 38 members of OECD, the world’s richest nations, are bound to criminalise acts of offering or giving bribes to foreign public officials by companies or individuals, which are at the heart of the charges the Milan prosecutors pressed against Eni and Shell.

The case, part of which was investigated and prosecuted in Nigeria, is about alleged payment of bribes to Nigerian officials in a web of transactions to acquire the lucrative Nigerian oil block, OPL 245. Shell, Eni and their managers were acquitted in the OPL 245 case by an Italian court in Milan in March 2021.

The group of anti-corruption experts expressed concerns that Fabio de Pasquale, the former head of Milan’s International Corruption Unit, and his deputy, Sergio Spadaro, “were removed from prosecuting their appeal to the judgement in the OPL 245 case, prior to any formal proceeding having commenced against them.”

The experts said the “targeting” of the prosecutors constitutes a highly likely Article V breach of the OECD Antibribery Convention.

“We are very concerned that aggressive and multi-faceted attacks, including what appears to have been a concerted and related media campaign, targeting two prosecutors was very likely commenced as an exercise to discredit them,” their open letter read in part.

The group noted that they were removed from prosecuting their appeal to the judgement in the OPL 245 case, prior to any formal proceedings having commenced against them.

“Indeed, their targeting led to them both being removed – they were then replaced by a prosecutor who, in extraordinary judicial circumstances, surrendered the case before the appeal hearing even began,” the letter added.

It said apart from raising eyebrows across Milan judicial circles, “the impact of this act was to permanently end any further prospects for judicial examination of the facts associated with the corrupt deal for the OPL 245 oil block.”

The experts called for an investigation into the matter.

“There are many other highly disturbing elements to the targeting of these prosecutors, which the (OECD Working Group) should fully investigate,” said legal experts, emphasising the potential breach of Article 5 of the OECD Convention.

They expressed concern that what began as an effort to remove the prosecutors from overseeing the appeal may have evolved into a broader attempt to dismantle the Milan Public Prosecutor’s Office’s critical national role in fighting international corruption.

Concerns of political interference

The removal of Messrs De Pasquale and Spadaro, followed by the dismissal of the OPL 245 case, has raised concerns about possible political interference, particularly regarding Italy’s adherence to Article 5 of the OECD Convention, which mandates that anti-bribery prosecutions be free from undue influence.

The experts said the verdict in the high-profile case against the prosecutors was set to be delivered as the Working Group began its discussions in Paris on 8 October. As expected, the prosecutors were found guilty and received a deferred eight-month prison sentence.

“It is not lost on us that there have been no credible international corruption cases brought to trial in Italy since the bizarre ending of the OPL 245 case,” experts pointed out.

They noted that there appears to be “concerted effort to prevent the Italian judicial system from hearing international corruption cases has been underway,” the group stated.

“This becomes all the more disturbing when considered in the context of the increasing number of authoritarian governments coming to power across OECD member states, for which this is a likely welcome development,” they said.

Calls for probe, safeguards

In light of these developments, legal advocates and anti-corruption experts are calling for an investigation into the targeting of the prosecutors and the motivations behind the dismissal of the OPL 245 case. They advocate for reforms to safeguard the independence of those prosecuting corruption, cautioning that Italy’s recent actions could undermine global efforts to combat bribery.

The letter warned that Italy’s actions “now threaten the enormous progress made in curbing foreign bribery” and called on the OECD to act promptly.

“We therefore urge the Working Group to take immediate measures against Italy, including issuing a “due diligence warning,” and to investigate Italy for probable Article 5 offences,” the letter added.

Background

PREMIUM TIMES had reported that a Brescia court handed down an eight-month suspension sentence for withholding documents that could have bolstered the defence of Shell and Eni, who were ultimately acquitted.

The court found that Messrs De Pasquale and Spadaro had a legal obligation to ensure transparency in the judicial process by presenting all relevant evidence, regardless of whether it supported the prosecution or the defence.

The prosecutors contended that the law did not explicitly require them to submit the withheld documents, but the court determined that their actions violated the defendant’s right to a fair trial.

In March 2021, an Italian court in Milan acquitted Eni and Shell of allegations that they facilitated the payment of bribes to Nigerian officials through the OPL 245 transactions.

In a related development, former Nigerian Attorney General Mohammed Adoke, who facilitated the Malabu deal for the acquisition of the OPL 245 in 2011, was acquitted of any wrongdoing by Nigerian courts in April.