The ANM and the immunity of judges

A curious contradiction has emerged following the massacre in Modena. The deputy public prosecutor at the Bologna Anti-Mafia Directorate (DDA), Morena Plazzi, has ruled out the aggravating circumstance of terrorism in the case of Salim El Koudri, who ploughed his car into the crowd. Deborah De Cicco, the lawyer for Giovanni Esposito—the brother of Monica, who died following the attack—challenged the decision on legal grounds and by referring to the public stances taken by the prosecutor: her affiliation with a progressive faction and her signing of a petition in support of Gaza. The ANM Emilia-Romagna has come to the defence of Public Prosecutor Plazzi, describing the accounts of her personal and professional history as manipulative and calling for the Bar Association to take action against Ms De Cicco.

The principle is curious: does freedom of expression apply to magistrates, but not to lawyers? If a public prosecutor signs petitions and expresses their opinions, a lawyer is entitled to refer to those positions when challenging the magistrate’s actions. Naturally, without substituting legal arguments with ideological suspicion. But one cannot expect the opinions of the judiciary to be free when expressed and irrelevant when commented upon. There is also another paradox. The ANM protests, quite legitimately, when a government representative criticises a judicial decision, because of the separation of powers. But now it is not acceptable even if a lawyer does so on behalf of a victim: a request for disciplinary action is immediately triggered. Who is still authorised to criticise magistrates? Mr De Cicco recalled Giovanni Falcone: a magistrate must not only be impartial, but must also appear to be impartial. When one takes part in public debate, it is possible that this perception may be called into question. It is a risk that magistrates must accept when they decide to speak out. The independence of the judiciary is a guarantee for everyone, not a corporate shield. Otherwise, under the guise of defending independence, one ends up claiming something quite different: immunity from scrutiny.