The “insurmountable” limits between state powers. Commentary
For two days everyone has been discussing and especially complaining about the indictment of the Public Prosecutors of Palermowho asked for Salvini sentenced to 6 years in prison for the crimes of kidnapping and refusal to perform official duties in relation to the well-known Open Arms affair.
“It’s a political process, a monstrosity” many have denounced: on the Press On Monday, September 16, historian and political scientist Giovanni Orsina intervened with a scathing article entitled “That insurmountable boundary between justice and politics”, arguing that it is being violated in Palermo. And the following day, September 17, former magistrate Edmondo Bruti Liberati, a long-time Public Prosecutor in Milan, wrote instead, who with a paternal tone attempts to clarify the procedural origin of Salvini’s trial, showing the groundlessness of many of the criticisms of the Palermo public prosecutors.
The title of Bruti Liberati’s speech says it all: “Magistrates forced to trial; Parliament ordered investigation”. Well, that’s not quite right: we know that the job of a headline writer is difficult. But in the end, even if you look at the text, you find the same idea: ‘If there is a case in which the initiative of the Prosecutor’s Office was a “due act”, it is precisely this one: Parliament “ordered” to proceed with the investigation’. Perhaps Bruti wanted to say too much with his rather cryptic quotation marks. And the headline writer resolved his understandable embarrassment by skipping them. In reality Parliament did not order anything: it did, however, authorize the continuation of the judicial investigation initiated by the Palermo Prosecutor’s Office.
An article in a newspaper cannot be transformed into a lesson in constitutional law, even if one has the impression that many of those who spoke would have needed it. The crux is the basis on which the law implementing Article 96 of the Constitution gives Parliament the power to refuse to authorize the ordinary judiciary to proceed with the investigation.
Without making quotes that could weigh down the discussion, I believe that the issue can be explained simply because the solution found to the problem of a parliamentary filter to be applied in the case of alleged ministerial crimes is simple, almost obvious: the criminal court determines according to the criteria of common criminal law whether the Minister has committed a crime in the exercise of his government power; Parliament may deny, with an unquestionable decision, the authorization to proceed, if the crime was committed in pursuit of a pre-eminent public interest. One might find this rule strange, because in a state governed by the rule of law it should not be possible for state organs to be required to violate state laws in order to achieve state goals.
If this point of view were accepted, there would be no need for any authorization from Parliament. But this is certainly not what bothers Professor Orsina. He observes, “Let me examine the Charter[Costituzionale] thus leaves politics the power to draw its own boundaries, to establish how far the terrain of political discretion extends, which the judiciary cannot penetrate.” This is not entirely accurate either. There are no acts that, because they are political, escape a legal qualification: for the purposes that in the judgment of the political authority they pursue, the activity of ordinary justice towards them is suspended.
Therefore, the law implementing art. 96 of the Constitution of 1989 would seem to eliminate at the root the possibility of trespassing by the prosecutors: they can come back into play only after the political judgment of Parliament. Why does Orsina, who as we have seen has a good knowledge and understanding of it, come to the opposite conclusion? Let’s read his dazzling debut: “What Matteo Salvini is undergoing on the Open Arms affair is a political process. Allowed, not by chance, by a parliamentary vote.”
Here it would seem that the process is political because a political body, the Parliament, intervened in its procedural genesis. This is not what is usually meant by “political process”: a trial is political when the magistrates condemn or acquit on the basis of political judgments, which are not theirs. This is what almost all the authors of the “institutional grammatical errors” that Bruti Liberati talks about maintain. For example, the President of the Senate, who accuses the magistrates of Palermo of wanting to “interpret the laws”, as if it were possible to do otherwise. On the contrary, The Prime Minister reproaches them for NOT taking into account the political reality, that is, the fact that Salvini acted in accordance with the “mandate received from the citizens”, even if, notes Bruti Liberati, the “mandate” did not include the fact that their representative violated international law.
The accusations are the most disparate, but they are aimed at the behavior and thoughts of the magistrates of the Palermo public prosecutor’s office, as manifested in their closing speech.. Not so, it would seem, Orsina: “Today the trial of Salvini is a judicial event destined to take place following the rules of law, but it would never have existed if there had not been an exquisitely political decision that a legislative assembly took by majority vote, dividing along party lines.” The trial is therefore for Orsina genetically political. It shouldn’t have been done. The current behavior of the prosecutors is not in question. This may even be “taking place following the rules of law.” But it is flawed from the beginning.
Whether or not Salvini committed the crimes attributed to him is of no interest to anyone. But that a minister, having lost the immunity guaranteed by art. 96 of the Constitution as amended in 1989, can be judged as an ordinary citizen is almost universally considered intolerable and scandalous.
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