The lesson from the Tortora case

There is a misunderstanding that needs to be cleared up regarding the very concept of a ‘judicial error’, in order to shed light on the discussions and controversies that have arisen around the bill establishing the commemorative day named after Enzo Tortora, which was recently approved by the Chamber of Deputies. There is, in fact, a strictly technical definition, set out in the Code of Criminal Procedure, according to which a miscarriage of justice is one recognised by an acquittal following a review of a final conviction. Beniamino Zuncheddu, for example, was the victim of a miscarriage of justice. How many such miscarriages of justice are there? Very few; the number of review judgments each year can be counted on the fingers of one hand. However, according to this technical definition, Enzo Tortora’s case was not a miscarriage of justice, given that Enzo – who was arrested in disgrace, detained for a long time, humiliated and convicted at first instance – was subsequently definitively acquitted in the subsequent stages of the proceedings. But let us ask ourselves, please, whether, in the context of the Tortora affair, we could ever celebrate and honour a justice system that functioned properly and triumphed. That legal case was a scandal, because Tortora’s arrest – the result of inexcusable and astonishing investigative shortcomings and lack of transparency – subsequently became a ‘truth’ that the Public Prosecutor’s Office and the first-instance judges themselves felt compelled to defend in order to save the credibility of the entire, colossal investigation (many hundreds of arrests, the Camorra dismantled according to the media and judicial narrative of the time). What is wrong with the idea of making that case a recurring warning, so that it may never again happen that justice could be transformed into such a monstrosity? Similarly, all the thousands of pre-trial detention orders – whether in prison or under house arrest – are rightly considered ‘miscarriages of justice’, as subsequent trial outcomes will reveal that they were issued in complete disregard of the legal requirements, to the extent of giving rise to financial compensation (borne, moreover, by the public purse) in favour of the victims of such abuses. This is, unfortunately, a widespread phenomenon on a large scale, and is particularly acute in certain Italian regions, where it appears that the public prosecutors’ offices there are unable to conduct investigations, bring charges or pursue criminal proceedings without first depriving the suspects of their personal liberty. We are not speaking of opinions or points of view, but of official statistics on convictions handed down by the State for wrongful imprisonment; statistics which – in a most telling manner – are brazenly called into question solely by the public prosecutor Nicola Gratteri and his die-hard followers. Here too, the virtuous nature of establishing an annual commemoration that invites all citizens to reflect on the non-negotiable value of personal liberty is evident, as is the need for its deprivation prior to a criminal conviction to constitute an absolute exception, not the arrogant rule. It should be an exceptional tool for protecting and safeguarding investigations, not for the arbitrary imposition of punishment prior to the trial phase. It is therefore thought-provoking, first and foremost, to note the clear opposition to this welcome parliamentary initiative on the part of the Italian judiciary – or rather, on the part of its political representatives. The objection here is that a day dedicated to judicial error would amount to an annual trial of the judiciary. We have all by now come to recognise this uncontrollable cultural reflex among our judges: any critical thought regarding their conduct becomes, in their eyes, an act of aggression, intimidation or delegitimisation. They do not, I believe, adequately reflect on just how deeply ingrained the perception is, in public opinion, of this privileged state of impunity that accompanies the work of investigators and judges. Sticking with the two examples I mentioned earlier (Zuncheddu, Tortora), the investigating and trial magistrates in Naples were all – all of them! – promoted with commendations to higher posts, and I am not aware that any of the investigators or judges involved in the Beniamino Zuncheddu case have been called to account for anything. It would therefore be desirable for this 17 June to become an opportunity for collective reflection by all citizens, and for dialogue and discussion, first and foremost, with the judiciary and its representatives. Furthermore: that 17 June each year must become an opportunity for a salutary ‘civic education’ on the very concept of criminal proceedings – that is, on this complex system of rules, prohibitions, time-limits and restrictions on the admissibility of evidence, which are often difficult for most people to understand, and all too easily reduced, by the prevailing populism, to ‘loopholes’ through which ‘the guilty get off scot-free’. Instead, ever since humankind, throughout its millennia-long history, chose to regulate criminal justice through public authority, that conceptual endeavour of social organisation has had a single, unchanging objective: to ensure, as far as humanly possible – even at the cost of allowing a guilty party to go unpunished – that we do not run the risk, or rather, I would say, commit the supreme injustice against a human community, of convicting an innocent person. Anyone who opposes (even if only by abstaining in a ‘Pilate-like’ manner) this simple, crystal-clear principle is making a very specific cultural and political choice, and legitimises the belief that political debts incurred during the ‘No’ referendum campaign – a campaign outsourced to the judiciary – are now being settled. Every choice is legitimate, provided that hypocrisy is banished and things are called by their proper names.