Sunday, July 10, 2016

Italian Justice: Describing A Fine System And How To Improve It

Posted by Machiavelli

[Revered prosecutor Paolo Borsellino was assassinated 1992 with probable political connivance]

Trashing Of Justice System Gets Worse

Does this Reuters report capture Italian justice correctly?

We linked to it on 30 June and it seemed to have some key points missing. For example it omits, as English-language reports tend to:

    (1) that the system as originally designed strove above all to be fair,

    (2) that crime rates in Italy are low and murder rates lower and levels of incarceration and recidivism tiny by European standards.

    (3) that the police and justice system remain more popular and trusted than other institutions in Italy.

More On The Hard Facts

If we look at the facts, we could say that while it is true that Italian Justice System is somewhat dysfunctional as far as prosecuting white collar crimes and corruption - that is, politicians like Verdini - in fact if we read carefully, the precise reasons are:

    (1) It’s not the system itself but some of the laws, designed by politicians precisely in order to protect themselves, against the demands of the judiciaries;

    (2) The system is slow because, among other things, there are these unreasonable guarantees in favour of defence rights, which entail the right to series of appeals even on minor charges; besides making trials too long this also leads to a multiplication in the number of trials and of lawyers that embark on time-buying strategies and technicalities;

    (3) The main problems are the short statutes of limitations, which are designed in synergy with the aforementioned features. I would add another legal aspect:

    (4) The lack of an aggressive anti-corruption law; in Italy, judiciaries are basically prevented not only to effectively try corruption charges but also to even investigate them, because the law binds their hands; they are heavily restricted in their possibility to collect evidence, such as searching homes or wiretapping phone calls; they can do this only under certain limited conditions and only for just a few types of crimes.

    (5) Moreover, there are the political reasons: magistrates are under threat by the political system. The problem, here, is not the judiciary but the political system that has been trying to curb the independence of the judiciary for 25 years by various means, including laws and expedients, so that in fact there is an infiltration and an influence, as we know, and there is a chilling effect on magistrates that may have reasons to prosecute powerful people but naturally prefer to avoid problems.

A very important thing to point out: it is not true that all of the judicial system requires some big “reform” - in fact, it requires only modest reforms, and reforms not of the judiciary but to just to the criminal law, would suffice.

Such modifications should include reform of the statute of limitations, and better anti-corruption law that provide prosecutors with investigation tools.

As for the procedure code, a cut to the number of charges that can be appealed. And in the penal code, a cut to the number of irrelevant charges that need to be tried by criminal courts (which could be settled elsewhere) leading to the notorious overloading of the system.

One small, peripheral “reform” dealing with the political issue, could be simply a law that prevents judges from political activity in order to advance their career in the judiciary.

We saw the classical example of Fifth Chambers Judge Gennaro Marasca: a politician who came back working in the justice system after spending years exchanging political favours and getting involved in financial scandals as the minister of budget in his administration, and then was legally allowed to exploit his previous political career and make it count in his resume as if it was a judicial career, so he got onto the Supreme Court. 

But the big problem in Italy, as Judge Piercamillo Davigo has put it, is not the Judicial system. It’s society. The problem is that no system actually works if the members of the society do not intend to make it work, if there is a lack of political ethics.

And also, there is no system or group that, in the long run, is not affected by the problems of the society it belongs to. When there is a regime, part of the judiciary always follows suit, because they don’t have real alternatives, individuals must comply with the system they are part of.

If a society is politically corrupt, part of the judiciary will become politically corrupt as a consequence, they have no alternative and it’s unavoidable.  There is no law or reform itself that can change personal behaviours alone, we do not live under constant surveillance: an internalization of values is needed, the behaviour of citizens and people in power needs to be ethical, in order to have efficient justice.

As for the Five Star movement: I wouldn’t call it “pro-justice-reform”, as we can see, there is not really a political debate in Italy or in the Party about the need for any big reform, it’s attention to just some laws that are needed, among them that anti-corruption law.

The Five-Star movement has an anti-corruption stance and an anti-establishment stance. But rather than pro-reform, they are pro-justice, and generally pro-magistrates. This means they tend to side with the positions of judiciaries against the demands of the traditional political forces.

Judge Piercamillo Davigo is Director of Criminal Chambers II and the Penalties Joint Section at the Court of Cassation . Since April 2016 he has also been president of the National Magistrates Association (CSM).  He is an idol of the Five Star movement’s voters - albeit he does not have a political position.

On a practical level this could be seen as if the Five Star movement would like to see more criminals in jail and the prosecutors prosecuting more, while the Democrats and their allies and the other traditional parties would like the power of justice to be limited (they are the ones who designed the “inefficient” features of the system to their advantage, after all). 

Once again, the problems of inefficiency etc, in Italy does not come from the judicial system; they come from the political system. It’s the political system that has become inefficient, stuck and unstabile. There has been a lack of dynamic democracy for decades. Once the political establishment of Italy was related to mafia in many areas and there is still a murky system of power.

The “inefficiency” of the judicial system is only a mirror of this problem, that is the effect of the political establishment trying to take control of the system, or to block it or hinder it when control fails.

Both the political powers and organized crime have long also employed other methods when the previous failed, such as ad personam attacks against specific magistrates.

Former prosecutor Luigi De Magistris - the mayor of Naples - is an example of the political powers striking back against a magistrate who investigated them: they managed to ruin his career with the help of other complacent judges who waged war against him, and forced him out of the judiciary.

But they did not blow his popularity: the people supported him and he was elected mayor, antagonizing the national political powers.

It’s important to point out that what happened to Dr Mignini is exactly the same: he was prosecuted for alleged non-existent abuses because he disturbed powerful circles with “destabilizing” investigations into the Narducci case, then all charges were dropped, and the investigation proved illegitimate, but they managed to block the investigation on the Narducci case and hindered his career somewhat.

Other judges were less lucky: Paolo Borsellino for example was killed with the probable help of the Italian state. Many others died also.


Machiavelli is one of the best observers I have ever encountered at describing the essentials of complex situations.

Its very important to have a status-quo “picture” that everybody of every political hue can buy into before any realistic change scenarios and change processes begin.

UN agencies are at the center of most GLOBAL nodes for system improvement (aviation, health, maritime, on and on) in their technical areas but there remains a gigantic need for horizontal networking between communities, institutes, companies, and whole countries, in smaller groups.

Stupidly, or perhaps luckily, the EU is AWOL here.

The UK and Italy are right now in the self-same position - they could each help to get this horizontal networking alive in areas where smart systems change would matter most.

I suggested this in the previous thread with davidmulhern’s support “How this would best begin is via internal networking… at thinktank/university/corporate level.”

Having said that, a big problem can be experts!! Do make sure they and their hobbyhorses dont hijack the effort. They should not run the show.

I’d rather have one cool-headed observer like Machiavelli on a team than a dozen experts each trying to be the loudest rooster in the room. And at the process management women often excel.

Sorry, Boris, no job. 

Posted by Peter Quennell on 07/13/16 at 11:43 AM | #

The trains that crashed? About 1 miles west of where Papa Doc Sollecito lives.  As far as we know, RS has been living there too. Wait for the little ghoul to use this to draw attention to himself.


Added saturday: for our records this is the Breaking News box of the past several days about the Italian train crash in southern Italy.

Bad news: a head—to-head train crash in south-east Italy leaving 20+ dead. That is a surprise. Italy flawlessly runs the fastest trains in Europe, and the third fastest in the world after two much smaller systems in China. The 220 mph Trenitalia Frecciarossa 1000. Better news: Italian banks are out of danger from a threat not fundamentally of their own making.


Posted by Peter Quennell on 07/13/16 at 03:35 PM | #

Machiavelli is indeed brilliant. There is a FOA site where I read his posts. I skip right over others’. Thank you, Machiavelli.

RS is a ghoul. Yes, exactly right. So is Knox.

Posted by JohnQ on 07/15/16 at 01:27 AM | #

Thanks JohnQ

I’d like to add an important modifier to this paragraph in the comment above.

The UK and Italy are right now in the self-same position - they could each help to get this horizontal networking alive in areas where smart systems change would matter most.

Some of the London-based industries, ones that provide a fair proportion of the UK’s growth, have good synergies. Quite a lot of the knowhow began first in NYC.

But northern Italy is way out on its own, the world leader, for networked fashion, ceramics, cars, and other enterprises and support institutions for financing, training and research.

This is not a new book and tools have evolved since, but it is very well researched and the portions on northern Italy’s centripetal networks should leave you extremely impressed.

Posted by Peter Quennell on 07/15/16 at 07:51 AM | #

Train disaster in Italy July 12, 2016 is truly lamentable, but rare. Song on radio two days before that was “I’m the train they call the City of New Orleans” made famous by Arlo Guthrie. It still makes runs between Chicago and New Orleans.

famous line in song: “Good morning, America, how are you. Say don’t you know me, I’m your native son? I’m the train they call The City of New Orleans. I’ll be gone 500 miles when the day is done.”

And, “the sons of…porters and the sons of engineers/Ride their fathers’ magic carpets made of steel”.

That song went into railroad blues history.

Seems we’ve had a lot of Amtrak wrecks in last 10 years in U.S.A.

Posted by Hopeful on 07/15/16 at 11:36 AM | #

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