The enthusiasm for the investigating magistrate who released Siher and the hypocrisy surrounding the excessive number of botched investigations

As in the best cases of serendipity, the adventurous, hasty but also faltering investigation launched by Milan public prosecutor Francesca Crupi and countersigned by prosecutor Marcello Viola against Youssef Siher – complete with a request for his arrest, which was then spectacularly rejected by investigating judge Tiziana Landoni – has also produced some positive outcomes, albeit unintentional. In fact, it will certainly be difficult to find anyone among the traditional and ossified ranks of the judiciary’s die-hard supporters willing to admit the obvious: even public prosecutors make mistakes. Big ones. They sometimes make investigative blunders, and at other times they fare even worse when it comes to precautionary measures. It is a general truth, but coincidentally, within the Ambrosian ritual of the Milan Public Prosecutor’s Office, it carries a certain statistical weight (perhaps it is the genetic memory of the days when Tonino Di Pietro, rather than aspiring to the CSM, was running riot in Via Freguglia). Now that the latest victim of the public prosecutor’s office’s adventurous approach has been a favourite of the insurrectionist left, everyone has celebrated the decision to release Siher with a sense of relief: hurrah for the investigating judge who defends freedom of expression. Many have even gone so far as to say that her case proves that the separation of careers is unnecessary. It is regrettable that this hypocrisy conceals an unspoken truth that is nonetheless plain for all to see: the realization that the public prosecutor had made a mistake. 

And that prosecutors should, at the very least, scrutinise more carefully the substance of open cases and hastily formulated charges in order to assess, on a case-by-case basis, whether the actions of the judiciary could be handled differently and more effectively. The Siher case could well become a textbook example. Will this be the case? If an investigating judge – or, in other instances, a review court – dismisses an indictment without much ceremony, might this not also prompt reflection on how investigations are structured? In this respect, the ‘Ambrosian rite’ case serves as a textbook example. Serendipity, however, comes up against two stumbling blocks. The first is Giorgia Meloni’s tirades against the investigating judge, which have served only to shift the focus onto her pointless meddling. The president of the court, Fabio Roia, and the head of the investigating magistrates’ office, Ezia Maccora, wrote that ‘shame concerns other spheres of social life’, using Meloni’s outburst as an opportunity to avoid questioning the ‘shame’ of an arrest based on flimsy allegations. The second stumbling block is that the media, and many political circles, have always taken the public prosecutors’ arguments – even the most reckless ones – at face value or passed them off as gospel truth. A notice of investigation becomes a conviction; the media pillorying now being denounced in Siher’s case affects thousands of innocent citizens. Social media is the seething cesspit.

Then Siher comes along, and it turns out that even public prosecutors make mistakes. And that, on the contrary, investigating magistrates who apply due-process rules are not the ‘bad judges’ of Acchiappacitrulli: who remembers the outcry when the investigating magistrate in Brescia dismissed the investigation into the deputy public prosecutor of Pavia in the Garlasco case, just to stick to the facts? And what, on the other hand, of the dubious criticisms when the Milan Review Court bluntly overturned the decisions of the investigating magistrate, who had merely accepted the prosecution’s arguments on town planning uncritically? The Review Court, later upheld by the Court of Cassation, harshly criticised the prosecutors’ arguments – which had been endorsed by the investigating judge – as a ‘degrading oversimplification of the argument’ and a ‘confused factual picture’. Is there or is there not a problem with the quality of the legal reasoning? Is there, or is there not, a need for investigations to be conducted with due regard to the facts, so as not to be dismissed as ‘a confused factual picture’? The Milan case is not the only one, but it is indicative of a hasty approach to investigations, particularly those driven by the media and fuelled by public sentiment. How many proceedings have been opened amid media hype only to come to nothing?

Just yesterday, the Court of Cassation definitively dismissed an appeal by the public prosecutors against the lifting of the seizure of a building site, the Torre Brera, which had already been upheld by the Council of State. Why such determination to drag out a case that has already been clarified and on which the prosecution has clearly erred? Or the investigations into the sale of the Meazza stadium? The Review Court quashed the seizure of the suspects’ chat records, criticising the method used: one cannot comb through the entire contents of mobile phones in the hope of finding evidence of a crime (this applies to Siher – why not extend the same principle to the managers?). What about the investigation into the ownership of AC Milan, which came to nothing? And ‘Arbitropoli’, which was allowed to drag on for so long yet yielded no evidence, only to be dropped for lack of substance within a few months? Or, to move on to more serious matters, the investigations that seek to hold companies directly liable for any irregularities committed by those working under subcontracts? Or the recent Foodinho-Glovo case, where the public prosecutor’s office sought to impose an obligation to employ delivery riders as employees, a move which the investigating judge rejected as unjustified? How many cases are there where we ought to question the nature and methods of the investigation?

Certainly not to restrict the freedom to investigate, or ‘the responsible and difficult exercise of jurisdiction’. Instead, one might question the method of launching investigations – or allowing them to proceed in formal silence (implicit consent) – by forcing allegations of criminal offences that often prove to be unfounded. Just as was the case with the charge of ‘incitement to commit a criminal offence aggravated by the aim of terrorism’ brought by Public Prosecutor Crupi and countersigned by Prosecutor Marcello Viola. Yet too many such forced investigations are invariably welcomed by the press, and by the politicians concerned, on a day-to-day basis. Until, that is, it becomes apparent that the public prosecutor was mistaken. Is this the moment for active repentance?