Prosecutors and politics: the poison of a counter-investigation

President Mattarella, in a message he sent to a conference of the National Magistrates’ Association a few years ago, used words which, in my capacity as a legal scholar, I have repeatedly cited because they could scarcely be put more eloquently: ‘The independence of the judiciary is a cornerstone of democratic society and is founded on a high level of professional competence, which must be accompanied by the comprehensibility of judicial proceedings’. The additional reference to the need for judicial proceedings to be comprehensible – not least to the public – is highly appropriate and worthy of emphasis. Unfortunately, even in recent times there have been cases where proceedings have been difficult to understand, leading to public confusion and a consequent rise in institutional mistrust.

Among these cases, one in particular is of special interest and, at the same time, gives cause for concern as it is symptomatic of abnormalities and abuses that are not confined solely to the judicial sphere. I am referring to the new investigations carried out, in close and unique collaboration, by the parliamentary Anti-Mafia Commission and the Caltanissetta Public Prosecutor’s Office to shed further light on the motives behind the Via D’Amelio massacre targeting Judge Paolo Borsellino. The press has reported extensively on the sharp disagreements and heated controversies raised by these investigations, which have even gone so far as to cast doubt on the legitimacy and transparency of the actions of certain well-known former public prosecutors from Palermo some thirty years ago. However, it has perhaps failed to highlight the most significant problematic aspects, which go beyond the debatable reconstruction of the facts and actually have a more general systemic impact: at stake, in fact, are the fundamental principles and operating rules of a constitutional democracy worthy of the name.

I shall begin with a summary of the abnormal or, at the very least, anomalous profiles.

1. The Anti-Mafia Commission, run by Chair Colosimo and the majority commissioners, is being used as a tool for political warfare, even against some of its own members belonging to the opposition (a case in point is the campaign waged against the former Attorney General of Palermo, Roberto Scarpinato, who currently sits on the commission as a Five Star Movement senator).

2. The Caltanissetta Public Prosecutor’s Office, in the context of renewed investigations into possible instigators of Borsellino’s murder, has gone so far as to charge the two well-known and respected retired magistrates, Gioacchino Natoli and Giuseppe Pignatone, with a hypothetical, implausible and defamatory offence of aiding and abetting the Mafia – an offence which, moreover, has long since become time-barred and is therefore not subject to investigation. As was to be expected, the Public Prosecutor’s Office ultimately requested that the case be dismissed (a decision subsequently granted by the investigating judge) both in respect of the main proceedings – due to a failure to uncover new evidence capable of identifying the sought-after instigators by name – and – as was even more predictable – in respect of the case brought against the two magistrates alleged to have aided and abetted the Mafia: whose reputations were, however, inevitably damaged both by the widespread media coverage of the opening of an investigation against them and, above all, by the unwarranted and discrediting remarks made about them by the magistrates from Nisseni, and even against other public prosecutors from the Palermo Public Prosecutor’s Office at the time, such as Scarpinato and Guido Lo Forte (who were not under investigation).

3. The extremely close collaborative interaction between the Anti-Mafia Commission and the Caltanissetta Public Prosecutor’s Office, which resulted in the validation and emphasis of the ‘Mafia-tenders’ line of inquiry as a definite contributing factor to Borsellino’s assassination, and the tendency, by contrast, to dismiss as ‘zero tagliato’ (as the Caltanissetta public prosecutor Salvatore De Luca put it, with obvious derision) judicial investigations conducted previously – and not only in Palermo – concerning the so-called ‘black trail’ linked to subversive right-wing circles. Is it a stretch to assume that Chairwoman Colosimo and the political bloc currently in the majority harbour a pre-existing political interest in neutralising evidence and dispelling suspicions relating to figures from the far right of several decades ago? In any case, the fact remains that the Nisseno public prosecutor, having been heard on several occasions by the Anti-Mafia Committee, not only emphasised the central role of the public procurement issue in motivating Cosa Nostra’s terrorist attack; but he has also, in open court, raised and reiterated suspicions of guilt and made harsh judgements regarding the two former public prosecutors who were unsuccessfully investigated on suspicion of aiding the Mafia, as well as their colleagues in the public prosecutor’s office headed by Pietro Giammanco: thereby delivering, in a parallel political-media tribunal, wide-ranging moral indictments instead of formulating legally impossible requests for conviction. All this was done not only without cross-examination and in the absence of any defence safeguards, but also by disregarding the fact that judgements of moral disapproval do not fall within the remit of a magistrate, whether as prosecutor or judge.

The aforementioned campaign against opposition member Roberto Scarpinato serves as confirmation that the commission has unduly acted as an instrument of political struggle. Beyond the individual targeted, the issue has broader implications. Scarpinato is likely being targeted because, as a former anti-Mafia public prosecutor and expert, he is a staunch and outspoken advocate of the need to consider possible motives for the Via D’Amelio massacre (as well as that of Capaci) that are broader and more complex than simply the Mafia’s desire to prevent Borsellino from investigating the public procurement system. Now, without a thorough investigation and without first seeking clarification from him, he is facing the discrediting accusation that, during telephone conversations with his former colleague Natoli – conversations which were intercepted, immediately forwarded by the Public Prosecutor of Caltanissetta to President Colosimo without taking into account the parliamentary status of one of the two interlocutors, and soon arbitrarily disclosed by the press – the content of false statements that Natoli himself was supposed to make at a subsequent hearing before the Anti-Mafia Committee. But there is more. Taking their cue from the aforementioned affair, the Chair and other members of the majority went so far as to draft a bill (Bill No. 1277) introducing an obligation for commissioners to recuse themselves in the event of a ‘conflict of interest’ that could ironically be described as cognitive: that is to say, commissioners who are presumed to be incapable of objective judgement simply because they possess prior knowledge and convictions regarding facts under parliamentary investigation, acquired in the course of their previous professional activities. In doing so, they not only improperly equate the members of the Anti-Mafia Commission with judges, despite the fact that the former are entrusted with fact-finding functions serving political purposes rather than the establishment of criminal facts within the context of criminal proceedings. It also leads to this paradox: if expertise on certain subjects were truly an obstacle to objective judgment, then, for the sake of consistency, doctors should be barred from participating in the work of the Health Committee, engineers from that of Public Works, lawyers from that of Justice, and so on.

How can one explain that the Nissena Public Prosecutor’s Office, rather than immediately dismissing the case – in accordance with the Constitutional Court’s guidelines – regarding a hypothetical offence of aiding and abetting that had long since become time-barred, chose instead to investigate it? The justification provided by the Public Prosecutor’s Office, subsequently endorsed by the investigating magistrate who dismissed the case, can be summarised as follows. The bar on investigating during the preliminary investigation stage due to the expiry of the limitation period would be lifted if the investigative activity were found to be instrumental in shedding further light on extremely serious criminal acts not subject to a limitation period, such as mass killings: this is because a strong and widespread ethical and social need for the truth would make a judicial inquiry unavoidable. At first glance, this justification appears unassailable. Indeed, the need to shed light on points that remain obscure and to deepen our understanding of the causes, objectives and perpetrators of Mafia-perpetrated massacres is still very much alive and widely felt. On closer reflection, however, one realises that it is not a given that criminal proceedings are always, and in every case, the appropriate means of guaranteeing the so-called ‘right to the truth’, as interpreted by international courts. Indeed, a well-intentioned invocation of this right is not sufficient to legitimise breaches of domestic procedural law, since no judge is at liberty to determine, as they see fit, in which cases and to what extent the need for truth should take precedence over the protection of other fundamental rights also safeguarded by the legal system. Our legal system does not grant judges unlimited discretionary power. Criminal and procedural law cannot disregard the objective written rules and the binding principles established by the Constitutional Court, in this case in Judgment No. 41 of 2024. In this ruling, the Court not only makes no provision for any exception to the prohibition on conducting preliminary investigations into alleged offences for which the statute of limitations has already expired, but also precludes judges from doing precisely what the magistrates in Nisseni did in their requests and orders to dismiss the case and, as if that were not enough, during the hearing before the Anti-Mafia Commission: namely, to imply judgments of guilt or, in any event, to make disparaging assessments of the persons under investigation. During the preliminary investigation phase, in fact, the law does not allow the person concerned to waive the statute of limitations, nor does it provide them with adequate means of defence to prove their innocence; furthermore, there is a real danger – accentuated in this case by the high profile of the former magistrates involved – that doubts regarding guilt and negative assessments may become public knowledge due to media coverage, causing serious reputational damage. It should also be noted that all the investigations deemed necessary could very well have been carried out in Caltanissetta, without there being any need to keep a separate set of proceedings open for two years concerning an alleged offence for which the statute of limitations had expired.

However, beyond this important legal issue, what is most striking is how difficult it is – particularly for the public – to make sense of this bewildering, if not downright shocking, judicial drama which has, paradoxically, ‘convicted by dismissal’ two valiant and highly regarded former magistrates, whilst discrediting others (who are not under investigation) who are equally well-known for their long-standing and proven commitment to the fight against the Mafia: Unfortunately, one might even get the impression of a sort of ‘palace of poisons’ resurrected on the initiative of Caltanissetta, a posthumous settling of scores by today’s Caltanissetta Public Prosecutor’s Office against the Palermo Public Prosecutor’s Office of many years ago. Whilst trusting that this is not the case, the disconcerting spectacle we have witnessed certainly does nothing to foster confidence in the judicial system.

Equally negative is the image presented by the Anti-Mafia Commission, which operates – rather than as a credible body for political inquiry – as a tool for launching attacks even against internal members perceived as adversaries. This is a degenerative trend, which is also evident today in relation to other parliamentary commissions of inquiry and which has raised the question of whether such commissions still have a valid raison d’être (see the article by F. Bei in La Repubblica on 21 October).

What has transpired as a result of the pathological interaction between the political and judicial spheres gives cause for concern regarding the very real risk of a further loss of trust in public institutions – both political and judicial – stemming not least from the lack of clarity surrounding the findings of the renewed investigations into the Via D’Amelio massacre. It has long been assumed that Borsellino’s intention to delve deeper into the investigations into mafia involvement in public procurement may have been a contributing factor to his assassination, and the claim – or rather the presumption – by the Caltanissetta Public Prosecutor’s Office that it has proven the ‘certainty’ of this contributing factor adds little to this.

It would be desirable for the President of the Republic, in his role as the supreme guardian of the fundamental principles and values of our constitutional democracy, to continue to advocate – in the ways and forms most appropriate to him – for the need for not only judicial proceedings, but more generally the activities of other institutional bodies, to be understood by the public.

The Constitutional Court, whilst making no exception to the prohibition on conducting preliminary investigations into alleged offences for which the statute of limitations has already expired, prevents judges from doing precisely what the magistrates in Nissa did – including during hearings before the Anti-Mafia Commission – namely, implying that the persons under investigation are guilty.

What has happened as a result of the unhealthy interaction between the political and judicial spheres gives cause for concern regarding the very real risk of a further loss of trust in public institutions, stemming not least from the lack of clarity surrounding the findings of the renewed investigations into the Via D’Amelio massacre.