The ANM’s awkward silence regarding the judge attacked by Scarpinato

The paradox surrounding the Scarpinato case is now complete. All members of the High Council of the Judiciary (with the exception of Vice-President Pinelli, the First President and the Attorney General of the Court of Cassation, as is customary in such circumstances) in fact called yesterday for proceedings to be initiated to protect Santi Bologna, the investigating magistrate of Caltanissetta, who has been the target of attacks by Senator Roberto Scarpinato, a former public prosecutor and now a member of the Five Star Movement – the party that has made the defence of judicial independence one of its key causes. That cause, too, has now fallen by the wayside. Before the CSM councillors spoke, the centrist faction Unicost and the Youth Council of ‘Magistratura Indipendente’ – the moderate group of judges – had already intervened. The left-wing faction ‘Area’, however, remained silent. But what carries more weight than anything else is the silence of the National Magistrates’ Association (ANM), which has always been at the forefront when a magistrate is attacked by politicians. The situation is made even more curious by the fact that the ANM is chaired by Giuseppe Tango, himself a member of ‘Magistratura Indipendente’. Tango, however, is not making a move for the time being; he is standing still and keeping quiet (held hostage by ‘Area’?). 

According to Il Foglio’s sources, the president of the ANM has, in fact, taken a stand within his own faction against the idea of issuing the statement of solidarity in Bologna. If confirmed, this circumstance would add a surreal twist to an already rather unusual affair: the president of the association that is supposed to represent the judiciary finds himself reining in his own faction just as it is coming to the defence of a magistrate who has come under fire from a former colleague who is now a Member of Parliament.

And so Magistratura Indipendente speaks out, Unicost speaks out, the CSM speaks out, but the ANM remains silent. Its president, whose role is to give voice to calls for the protection of the judiciary, seems to have nothing to say on this particular occasion.

The story stems from the order to dismiss the case with which the Bologna investigating magistrate closed the proceedings concerning the 1992–1993 massacres relating to the ‘Mafia-contracts’ strand. A ruling running to over six hundred pages in which the judge reconstructed the course of the investigation and also levelled very harsh criticisms at Scarpinato, referring to “misleading tactics” employed by the M5S senator within the parliamentary Anti-Mafia committee, in particular by influencing the testimony of former public prosecutor Gioacchino Natoli. Scarpinato responded by contesting the investigating judge’s account. He described the accusation as “grossly false”, arguing that it was the judge’s ruling itself that was “misleading”. Scarpinato then accused Bologna of seeking to “revive the Mafia-procurement line of inquiry” and added that the ruling “effectively bolsters the political bullying” of which he considers himself a victim.

A scathing attack, which, paradoxically, comes from a former magistrate, and which has inevitably provoked reactions within the judiciary. Unicost spoke of ‘deep concern’ and pointed out that criticism of the measures is legitimate, provided it does not become an attack on the professionalism and impartiality of magistrates. The Youth Council of Mi described it as “unacceptable” for an individual magistrate to be publicly accused of “falsehoods” or of having “aided and abetted institutional bullying”. The members of the High Council of the Judiciary (CSM) were divided. The judges from ‘Independent Judiciary’ and the lay members from the centre-right noted that it is one thing to debate a judicial ruling publicly, but quite another to “describe a judicial ruling as a tool that supports ‘political bullying’: in this way, the exercise of jurisdiction is placed within a political conflict and is attributed a function other than that of ascertaining the facts and applying the law”. A portrayal, the signatories further emphasise, “which takes on particular significance because it comes from someone who has long served as a magistrate and who, precisely because of their professional experience, is well aware of the difference between criticism – even radical criticism – of a ruling and attributing to the judge who issued it a role within a political conflict”.

A further 13 judges, mainly representatives of the Unicost, Area and Magistratura Democratica factions, have instead focused on the accusation levelled by Scarpinato against the Bologna investigating magistrate of seeking to ‘revive’ the mafia-procurement line of inquiry: ‘Such a statement does not, in fact, merely challenge the arguments used in the ruling, the assessment of the evidence or the conclusions reached. It shifts the criticism from the content of the ruling to the aims pursued by its author, portraying the decision as serving to reaffirm a pre-established investigative theory. Thus, despite the specific nature of this case, an issue that has already arisen on other recent occasions resurfaces: judicial rulings may be subject to the broadest and most rigorous public scrutiny; it is quite another matter to attribute to magistrates intentions, aims or interests unrelated to the assessment of the evidence and the application of the law, thereby calling into question their impartiality in the exercise of their duties”.

In short, at the moment it seems to be Scarpinato himself who is playing the bully, and against a magistrate at that. Curiously, the only organisation not to have noticed this is the National Magistrates’ Association.