Introduction
The upcoming constitutional referendum of March 23 concerns the new laws enacted by the government regarding the reorganization of the judiciary (separation between prosecutors and judges, random selection for the higher judicial councils). In reality, however, the underlying issue concerns the relationship between the judiciary and politics. Much is said about the independence of the judiciary from political power, but this approach seems to us to reverse the problem.

What has been discussed for the past 30 years, more or less everywhere, is something else: do magistrates (sometimes, only sometimes) overstep into the political arena, or not?

Saying that everyone is equal before the law is something no one denies: it is a truism, like saying that the sun rises in the morning. But the debated issue is: is justice equally applied to politicians as well?

In short, the problem is whether politics is conditioned by the judiciary; it has never happened that the judiciary has so far been conditioned by politics.

 

Charges and Verdicts

It seems essential to us to make one consideration. Since the days of Mani Pulite, we have witnessed a flood of trials against politicians, but virtually no convictions (or almost none).

Now, when a defendant is acquitted, it means that either the public prosecutor or the judges were wrong. But can one really think that investigating magistrates are unable to assess whether a given act constitutes a crime or not? They are certainly not unprepared or inexperienced people, absolutely not.

It should also be considered that sometimes facts are uncertain and that new elements may even lead to the revision of judgments that have already become final; but in the cases we are discussing, the issue is deciding whether a fact constitutes a crime or not, not evaluating the existence of new factual elements.

The acquittals (which occur almost always) are not due to doubt about the facts, but to the fact that the act is not a crime, as the ruling reiterates.

The conclusion seems evident to me: investigators have made political use of investigations. One might then say that, in the end, the judiciary did not convict the accused and therefore justice was done anyway. But it must be considered that the timing of the judiciary differs from that of politics and, indeed, of life in general: an acquittal that comes after years—generally many years—finds the accused already out of the political arena. What remains in people’s minds is the news of the charge, while the acquittal often goes almost unnoticed.

It has happened that many politicians under investigation have challenged the conduct of the judges, accusing them of being politicized, and thus remained in the field (think of the striking case of Silvio Berlusconi or also Matteo Salvini). Those politicians who instead waited for the long course of justice, when they were acquitted, were already out of the political arena. Think, for example, of the case of Giulio Andreotti or the sensational but little-known case of Antonio Bassolino, indicted 19 times and acquitted 19 times: he even tried to return to politics, but unsuccessfully; by then it was too late.

Let us clarify that trials against politicians may concern crimes committed in political acts or personal acts carried out in the exercise of political activity.

For example, taking a bribe to prevent migrants from disembarking would be different from doing so for political reasons (which as such may then be criticized). In the second case, it seems to me there has never been a conviction, and in the first case only occasionally.

 

Some Examples

Charge of kidnapping against Matteo Salvini for not assigning a port for migrants to disembark: it seems entirely evident that such a crime cannot be configured and that there is no crime consisting in prohibiting the landing of illegal migrants.

Charges of aiding and abetting against Giorgia Meloni and others for the repatriation of Al Masri, the head of Libyan prisons: but how can one think that Italian politicians were accomplices of Al Masri, when it appears entirely evident that there was concern about avoiding retaliation against our personnel in Libya? Certainly, one may criticize this measure, but one cannot consider it aiding and abetting.

Giuseppe Conte was accused over measures concerning Covid and also for having used a public car for his partner. In the first case, these were scientific assessments of the Covid danger, which may not be shared, but certainly cannot be considered crimes; in the second case, it appears that even family members of high state officials are entitled to public protection: that it was not his legal wife but a partner seems a truly pretextual subtlety in our times.

Antonio Bassolino was indicted 19 times and acquitted 19 times on charges of administrative irregularities: but these were evidently acts that may be considered inappropriate, yet not against the law.

There were also many accusations against Matteo Renzi and even against his father, all proceedings ending in acquittal.

Certainly, the most striking case was that of Silvio Berlusconi: investigated in 40 trials (or 139, depending on how one counts them), he was convicted only once. Consider, for example, the trial of the so-called “olgettine”: certainly not morally acceptable conduct, but not crimes. Everything was based on the fact that the famous Ruby was six months short of turning 18; but there was no evidence that Berlusconi had had sex with her nor even that he knew her age, and yet there were 12 years of trials.

Let us also recall that even Antonio Di Pietro, the hero of the Mani Pulite trials, had to resign as minister because of accusations later shown to be entirely fanciful by another investigating magistrate, Salamone.

The list could be endless. We have mentioned only some of the best-known examples.

Credibility is lost when judges of first, second, and third instance contradict one another: how is one to know who is right? Above all, one wonders when the Corte di Cassazione closes the case without even remanding it, stating, after two judgments, that the trial should never even have taken place.

On the other hand, did anyone truly think that a court would send Matteo Salvini or Giorgia Meloni to prison?

 

Justice and Legality

There is no “red conspiracy,” as Silvio Berlusconi used to say, nor is the judiciary against the right wing. The fact is that some magistrates overflow into the political field, sometimes for noble ideal reasons or for personal interests. In the latter case, it should be noted that the most important appointments are assigned according to membership in factions (as Luca Palamara teaches), and this happens both for left-wing factions and for others.

It is also a problem that magistrates are the only professional category not held responsible for what they do (perhaps teachers as well). Indeed, even magistrates who have pursued baseless trials, as later ruled by the Court, have certainly not been marginalized but have obtained prestigious positions.

The task of magistrates is to ascertain, beyond any reasonable doubt, whether someone has violated the laws enacted by politicians, not to establish what is just. Justice, in the legal sense, means conformity to the laws (which may also be unjust or horrific: think of Nazi antisemitism or Stalinist purges). Above all, the law does not take consequences into account: it applies the law and nothing else.

Justice is something different: it is a philosophical conviction, always debatable; and especially in politics, consequences are taken into account. Now, when a judge thinks he is pursuing justice in itself (and not conformity to the law), he goes beyond his task, stretching the meaning of laws and thus trespassing into the political sphere.

But who is entitled to judge the political acts of a government: voters or magistrates?

 

Conclusion

The essential point is that the judiciary must not enter the political arena, and on this there should be unanimous agreement.

It seems to me that the discussion throughout Italy has focused on entirely secondary aspects, on legal quibbles with which one can argue everything and its opposite, as in fact happens (was it a mandatory act or a voluntary one?).

The real problem, however, seems to me to be the relationship between the judiciary and politics, not only domestically but also internationally. Is it possible for national or international magistrates to condition politics?

This, it seems to me, is the real issue.