La significativa ripresa del dibattito storico degli ultimi anni in materia di terrorismo e il mai arrestato dibattito giuridico sulla mafia hanno fornito l’occasione per avviare una riflessione contestuale e unitaria delle strategie di contrasto a questi due fenomeni. L’inedito confronto tra storici e giuristi presente in questo numero di «Meridiana» si propone di superare stereotipi, opporsi agli imperanti complottismi, uscire dalle narrazioni parziali e leggere in continuità, senza frammentazioni, la vicenda della repressione al terrorismo e alla mafia nell’Italia repubblicana.
La ricerca di una verità storica e di una giudiziaria riguarda fenomeni che presentano aspetti polivalenti, mettendo in evidenza la tentazione frequente dei giudici di avvalersi delle ricostruzioni storiografiche e, viceversa, degli storici di avvalersi di documenti normativi e di materiali giudiziari per analizzare vicende che vanno ben al di là dell’aspetto criminale. In questa stessa prospettiva, è possibile suggerire un’ipotesi di lettura relativa alle conseguenze dell’uccisione di Falcone rispetto alle cesure del sistema politico italiano nel corso del primo quarantennio repubblicano.
Del resto, la giustizia penale è solo l’ultimo anello della catena istituzionale del contrasto alla criminalità inteso come repressione legale: l’ottica del contrasto concorre infatti a definire le finalità del diritto e della giustizia penale, anche in un ordinamento liberale nel quale il principio di legalità e quelli del «giusto processo» hanno una funzione di garanzia di diritti di fronte all’autorità. La dimensione storica di questi problemi è peraltro tenuta presente per mostrare come la risposta penale sia stata in grado di determinare il successo delle istituzioni nella lotta al terrorismo. Al tempo stesso, la normalizzazione dell’eccezionalità e il suo divenire ossimoricamente perenne sul versante del diritto sostanziale e processuale disvelano aspetti sia positivi che negativi.
Un tipico prodotto di questo doppio binario è la figura del «pentito». Il pentitismo e la struttura delle imputazioni, la duttile applicazione del paradigma del reato associativo, il ricorso a maxi-inchieste e maxi-processi possono deformare gli scopi del rito penale in funzione politico-criminale. D’altra parte, da strumento fondamentale di indagine, diffuso e utilizzato già ai tempi della risposta al banditismo stragista, il sapere interno e intorno alle associazioni diveniva una chiave di volta per sconfiggere il terrorismo e, successivamente, per penetrare l’omertà delle strutture mafiose. In diversi contributi si richiama quindi l’attenzione sugli elementi di intreccio tra repressione al terrorismo e alla criminalità organizzata, sottolineando come la magistratura abbia avuto il merito di saper disegnare, sin dagli anni di piombo, strategie unitarie di indagine e di accusa, soprattutto attraverso la capacità di ricercare i «nessi» fra le vicende. Non mancano tuttavia aspetti critici e negativi. Tra tutti, il fatto che le «emergenze», anziché restare eccezionali ed «esterne», hanno invaso le strutture grammaticali del pensiero penalistico, sono entrate nel codice e poi nel suo «sistema» più generale.
Terrorismo e mafia. Il contrasto alla strategia della paura tra storia e diritto
Antonino Blando, Paola Maggio
The issue of «Meridiana» analyses counter-terrorism and mafia strategies over the course of Italian history from a double viewpoint (both legal and historical). The contributions of the different authors follow the evolution of criminal, substantive and procedural rules while identifying a unitary, «emerging» trait. Exceptionality, which has become one of the permanent characteristics of the Italian criminal justice system. The studies of some famous cases highlights the twists of the legal categories, the use of repentants, and the close collaboration between the judges and the public prosecutors. Risky interference between historiography and procedure requires that the criminal dimension be returned to the last link in the chain of countering terrorism and the mafia. The choice is necessary to safeguard criminal guarantees and respect the canons of «due process of law».
Keywords: Historical and legal analysis; Terrorism and mafia; Exceptionality.
Giustizia penale e storia. Spunti di riflessione
A required reflection on the reciprocal interference between the knowledge of the jurist and the historian. In the definition of social phenomena that present criminal aspects, but which do not end in a criminal dimension, the legal paradigm contrasts with other competing paradigms. This affects citizens in general and, at the same time, the political system and the circuits of media communication.
Keywords: Jurist and historian; Judicial truth; Political debate.
The article aims to provide an analysis of the effects of the assassination of Giovanni Falcone (May 1992) on Italian politics. It is divided into three different levels of analysis. First off, it investigates 1) the perspective and goals of the murderers of Falcone and attempts to verify, adopting an historical approach, if the political objectives the murderers hoped to achieve through Falcone’s assassination were actually realized. Then, it takes into examination 2) the short-term political consequences related to the Capaci massacre. Finally, the article formulates 3) some interpretations about the medium and long-term consequences of the assassination of Falcone on the Italian political system.
Keywords: Connections between mafia and politics; End of the Cold War; Falcone murder.
The judge and the historian are both impartial researchers of factual truths. For the judicial reconstruction and evaluation of events of considerable complexity (a significant example is the trial on the so-called State-mafia negotiations), problems arise not only regarding the assessment of material facts, but also about hermeneutics related to the facts, as well as interpretation of the law. There are also problems of suitability of the culture available to the judge. In the contrasting terrorism, the stick and carrot model has been successful: The political and moral stability of the country has contributed significantly to the eradication of terrorism. Criminal phenomena and contrast strategies are objects of history. The perspective of the historian is more comprehensive than that of the judge.
Keywords: Judge and historian; Hermeneutics related to the facts; Contrast strategies.
The article analyses situations and modalities through which the Italian penal system reacted to the terrorism of the 1970’s. Given the outright impossibility to adopt the legislative solutions of other countries (specifically Western Germany), the Italian judges, who were involved in the fight against terrorism, became the main actors of the first phase of an Italian response to terrorism and focused on the elaboration of interpretative solutions. At a later stage, the task to inspire this penal legislation was given to the internal ministry, who exploited the instrument of emergency establishment in order to impose necessary and also incoherent measures. In the last phase, which started with the kidnapping of the Secretary of the Christian Democratic Party Aldo Moro in 1978, a strategical and oriented intervention was developed. It was based on the individuation of a double platform of intervention: the aggravation of sanctions and the introduction of special discounts on sanctions for those who chose to collaborate. The last part of this contribution, shows how the penal solutions adopted in Italy in the 1970’s represented an example, with an internal and external circulation of knowledge, adopted to face other National emergencies and to fight terroristic threats.
Keywords: Emergency legislation; Turin trial; Counter-terrorism.
The paper explores and critically examines, from a historical viewpoint, the progressive affirmation in the Italian criminal system of particular investigative methods to contrast organized crime. The formula of the perennial emergency evoked by the title is in itself contradictory: the emergency, by transitory definition, is defined as perennial, that is, indefinite over time. An apparent Oxymoron. The contingent criminal phenomenon to be tackled is temporary. The need to neutralize the danger of conduct considered harmful for the survival of public institutions is perennial. Every era encounters dangers of such magnitude as to justify emergency measures. The risk is that the idea of an emergency contaminates investigative and procedural practices designed to pursue common forms of deviance. However serious the crime to be tackled, no emergency can justify the use of tools and treatments that can harm human dignity.
Keywords: Organized crime; Emergency law; «Twin track»; Human rights; Proportionality.
This article aims at investigating the period during which armed struggles appeared in Italy (1980-1987), focusing on how terrorists utilized anti-terrorism laws passed by the Italian Parliament to fight against democracy. The author argues that the terrorists were aware of the impossibility of defeating the State by means of weapons; indeed, they relied on turncoats who developed a political system aimed at undermining the fundamental principles of Italian democracy. This essay also investigates the central role of the victim in the construction of national identity. The relationship between the Italian Republic and its past, since the eighties, is organized around the alternative memory/history, that is, public/private. In the end, the private memory dimension prevailed, focused on personal pain, compared to public entities such as the State or parties. In the fight against terrorism and the mafia, in the «public use of history», the pain or courage of individuals has prevailed, politics has been identified as the evil to start from getting free by appealing to the anti-political «civil society».
Keywords: Terrorism; Turncoat; Dissociate; Anti-politics.
The procedural provisions established in the fight against terrorism and the mafia and the characteristics of the investigations reveal common features. In high profile events, the criminal judge plays a strong and creative role, along with a peculiar structure of the charges, the recourse to maxi-investigations and maxi-trials which have permanently deformed the purpose of criminal procedure in a political-criminal function. Some investigators and prosecutors, dialoguing together, have strongly dominated the public debate and influenced the legislative evolution on the subject of procedural collaboration. The constant interaction is testified to by a common approach to the repentant, by the use of interrogation as a dialogue and by the verification of «crow witness» statements.
Keywords: Mafia and terrorism; Criminal procedure; Crown witnesses; Role of the judges.
The Cirillo case is an emblematic event of Campania’s recent history, a time in which a meeting ground was created between political elites, criminal fringes and terrorist groups. Thus, the events connected with the kidnapping of Ciro Cirillo take on fundamental importance for investigating the socio-political and criminal fabric of Naples, through «opaque» incidents that led to the mixing of politicians and senior public officials with the local underworld and terrorists. In this perspective, the events of the spring of 1981 are crucial to understanding the exceptionality of the Neapolitan criminal and terrorist scene, as well as controversial actions by the local political power. Furthermore, the objective of this article is to deal with the consequences of the following legal proceedings between the late eighties and the beginning of the next decade. Finally, the study also aims to understand the repercussions of these events on political processes, institutional relations and the dynamics of political legitimacy within the local public opinion.
Keywords: Cirillo case; Terrorism, Connections between politicians and organized crime; Political legitimacy.
The paper analyzes the analogies and the connections between terrorism and the mafia, starting from the concept of «strategy of tension» and sets out the criteria which, on both sides, oversee the compatibility between the search for truth and the impartiality and independence of the magistrate. The conspiracy hypotheses or the alleged roles of the secret services do not obscure the substantially positive judgement on the judicial investigations characterized by a global vision and not limited to individual events. At the same time, the value of punitive choices able to rise up to the cabin of direction of the macro-phenomena and to counteract their economic infiltration is underlined.
Keywords: Terrorism and mafia; Strategy of tension; Judicial investigation.
This essay recounts the repression of political and mafia crime in Italy in the 1950’s, which, taking into account the cold war climate of the era and the legacy of fascism, tries to evaluate certain events of current times. In these pages, we trace the events surrounding the death of the bandit Salvatore Giuliano and a portion of the events connected to it; starting with the massacre of Portella della Ginestra on May 1947, which represents the first episode of terrorism in the history of the Italian Republic. Giuliano’s death scene was a great spectacle for national and international public opinion, for politics and for law enforcement. There were multiple truths, those of the carabinieri, journalists, politicians and judges and those of the bandits themselves, and then the opaque and ambivalent actions implemented by the carabinieri to contrast the mafia, such as the use of «infiltrators» and secret negotiations. This type of action, inherited in part from fascism, immune to procedural verifications and also benefiting from reasons of justification linked to the state of necessity of the repressive action, became a customary modus operandi in the repression of political and mafia crime, finding subsequent legislative recognitions in the establishment of special teams, and in legislation aimed at favoring dissociation.
Keywords: Confidants; Infiltrators; Fight against organized crime.
The second half of the twentieth century has seen a strong normalization of criminal law, that today represents a risk to everyday life, for perpetrators as well as victims. The last five years have instead seen a normalization, within the central body of criminal law, of institutes born during the years of the fight against «exceptional» crimes like mafia and terrorism, highlighting their risks, illegitimacies and remedies. The analysis of the normative evolution on mafia and terrorism shows that these matters have become a «general part» of criminal law: not only are they no longer located extra codicem nor temporary exceptions, relegated to some more or less organic special discipline, but they have also contaminated the central body of the code with institutes born under the sign of the s.c. «criminal law of fight», i.e. that criminal law is used as a weapon against certain phenomena and not as a guarantee for persons who are actually the only ones that are solely subject to criminal investigations. Both on the procedural level and (primarily) on the substantive law, it is possible to identify legal disciplines (such as the participation in crime and association crimes, prescription regimes, balance of circumstances, inchoate offences, collaborationist logic, differentiated punitive detention regimes, extended confiscations, preventive measures substituting security ones) where the normalization of the «law of exception» has become the heart of what Feuerbach and Carrara called general part or «philosophical narration» of criminal law. A spectacular starting point for the new «Code reservation» (Article 3-bis of the Criminal Code).
Keywords: Mafia and terrorisms; Criminal law of fight; Legal culture; Individual Guarantees.
In August 1989, the Italian public debate on immigration was shocked by the murder of Jerry Essan Masslo, a Southafrican refugee shot dead in Villa Literno, while he was joining the tomato picking campaign along with many others foreign workers. After that Italy discovered itself as a country of immigration rather than a country of emigration: while social subjects lead a huge political and social mobilization focusing on the conditions of immigrants, trade unions worked on the improvement of their conditions and on the extension of social rights for all the interested workers. Mainly based on unpublished documents, oral testimonies and newspaper sources, the article describes the history of the Lavello agreements of 1989, three labor understandings signed by the Italian trade union Flai Cgil and a group of Southern Italian agricultural companies in order to promote the legal recruitment of foreign workers as tomato pickers. It was one of the first actions carried out by trade unionists to reduce the phenomenon of exploitation of foreign workers in agriculture.
Keywords: Immigration; Gangmaster system; Agricolture; Trade Union
The article focuses on the social context and the parliamentary debate that anticipated the promulgation of the Martelli Law (d.l. 416 of the 1989, transformed into L. in 1990), in order to analyze the Law’s main innovations and their ratios. The paper aims at shedding light on the implications and connections between the «founding period» of immigration law in Italy and the policies developed in the following years. In particular, the article focuses on the managing of migrant labor on the Italian territory through a set of dysfunctions which are actually functional to the Italian socio-economic context.
Keywords: Migration policies, «Martelli law», migrants and labour market