Category: 9 Mignini v Knox hoax
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.
Posted by Machiavelli on 07/10/16 at 06:56 PM •
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Archived in The judical timeline, Hoaxes against Italy, 1 Ital justice hoax, 2 Italian mileu hoax, 9 Mignini v Knox hoax •
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Italy’s Unpopular Politicians And Mafia Fellow Travelers Versus Its Popular Law Enforcement
Posted by Our Main Posters
[Above and below: several of over 100 car bombings Italian police and prosecutors were killed in]
1. On The Pro-Justice Side…
This puts the faux Nencini “end-of-civilization-as-we-know” crisis into some sensible context.
The Italian system doesn’t exactly come out badly compared to say that of the US. Surprise, surprise: See here who agrees.
Comparatively speaking, Italy has a much lower crime rate than the US, a much lower murder rate, a highly professional un-elected police hierarchy, a much smaller court system, and a miniscule number of prison cells.
The mafias are now mostly backed into small pockets..
For reasons to do with Italian history pre-WW II the system keeps politicians very much at arms length.
Almost every other justice system in the world comes under the Prime Minister’s or equivalent’s control, and it his or her party that appoints the judges. The Italian system comes under the separately-elected and non-partisan President of the Republic.
All judges and all prosecutors follow a career path laden with checks and balances, learning exercises and tests. (At this the highly-competent and impartial Dr Mignini excels and he will soon be the attorney-general of a region.)
The system is extremely pro-defendant - probably the most pro-defendant in the whole world. See this article and this article for proof.
The number of Italians who are in prison at any one time is proportionally only about 1/5 that of the United States. Take a look.
It is not like everyone in Italy is impatiently waiting for the fatuous posse of Preston, Heavey, Fischer & Moore to turn up and save them from themselves. There is no problem there.
Our Italian poster Machiavelli (Yummi) who reported for us on the Cassation and Nencini appeals has assembled these facts on what the Italian population actually thinks.
For comparison, in 2011 the percentage of Italians who declared they trust the justice system “a lot” or “enough” was 53.3%. By comparison, the percentage of Italians who declared they trust the government “a lot” or “enough” were 14.7%, and those who trust the parliament were only 15%.
In 2012, the percentage of Italians who trust the parliament is now only 9.5%, and those who trust the Mario Monti administration are only 21.1%.
Over the eight years from 2004 to 2012 the percentage of Italians who trust the justice system was always bigger than those who trust parliament or government by at least ten points, and in some years we can see a spread of 20, 30, even 39 percentage points achieved by the judiciary over the parliament and government.
However, some cases of corruption (such as our Hellmann-Zanetti case, but also several others indicated by the Rapporto Italia 2012) do hamper trust.
The most trusted institutions in Italy above all are the Carabinieri (74% of Italians trust them) and the Polizia di Stato (71%).
Which means the most trusted institutions are precisely those law enforcement instruments which are deployed to enforce the orders of prosecutors.
(My source is “Rapporto Italia 2012” by EURISPES).
More evidence of this popularity. And even more.
2. On the Anti-Justice Side
In the past decade both corrupt politicians and the mafias have been remorselessly rolled back.
The Perugia Prosecutor-General’s Office being close to Rome and notoriously hard to bend was given national jurisdiction over the corruption of the 2006 Winter Olympics and the 2010 rebuilding following a huge earthquake.
The Florence Prosecutor-General’s Office being close to Rome and notoriously hard to bend was given national jurisdiction over the corruption of the contracts for the high-speed rail links that pass through Florence and on.
But attempts of corrupt politicians and others to meddle in this case go on and on and on.
Knox and Sollecito may think it is for pure love of them. Think again. There are unsavory parties on the anti-justice bandwagon who if it suited them would disappear Knox and Sollecito in the blink of an eye.
Politics played a part in ex-MP Rocco Girlanda, a Berlusconi poodle, accessing Capanne Prison multiple times to slobber over Knox. As a member of the Justice Committee under former Berlusconi-party MP Giulia Borngiorno’s sway (hows THAT for a conflict of interest?) Girlanda (1) petitioned the President for Knox, (2) tried to cut the national police wiretap budget, (3) tried to get Perugia prosecutors investigated, (4) repeatedly appeared on TV and in other media to make false allegations, and (5) chaired several US/Italy “liberation” meetings.
Sollecito lawyer Giulia Bongiorno has been wearing her member-of-parliament hat to stir up the (essentially toothless) Ministry of Justice against Judge Nencini. And to try to get the Council of Magistrates to give her client a break (Good luck with that - they wont move.)
The mafia backseat drivers (known about in Italy but not reported in the US) are there in a minor but pervasive way. Their roles were summarised in several places including this post here.
It is odd, to say the least, to see such self promoting reformers of the Italian system as Preston, Heavey, Fischer and Moore happily carrying water for the mafias.
So What We May Expect
Judge Nencini is a seasoned mafia fighter, and he is also a seasoned fighter of politicians who are corrupt and try to bend the system their way. But his record is very clear. Attack him for murky end - and he does not exactly back down.
From the point of view of Sollecito’s prospects, this faux storm looks like another huge wrong move.
Posted by Our Main Posters on 02/05/14 at 04:53 PM •
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Archived in The judical timeline, The officially involved, Police and CSI, The prosecutors, The judiciary, Hoaxes against Italy, 2 Italian mileu hoax, 9 Mignini v Knox hoax, Hoaxers from 2007, Heavey, Bremner •
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“They Were Held For A Year Without Even Being Charged!!” How Italian Justice REALLY Works
Posted by Nicki
[Above: Cassazione, the Italian Supreme Court Of Appeals}
A misleading mantra
This frequently quoted claim above is maybe the most mindless and misinformed of all the mantras on the case.
Much of the US media and some of the UK media - sometimes enthusiastically, sometimes with reserve - has parroted the claim that Raffaele Sollecito and Amanda Knox were “held without charges” for nearly a year.
Perhaps bringing to mind the notion of two innocent bystanders to the crime being arbitrarily arrested? Locked up in cockroach-infested jails by abusive police? Led on by an evil prosecutor with endless powers up his sleeve, and nothing at all to slow him down? Lost and forgotten by any judges in the case?
Well, good luck with that one, if it’s designed to sway the process.
It irritates just about everybody here in Italy, the judiciary and the media included. And it is doing the defendants no good at all.
Negative stereotypes like these really should not be applied to a country that is one of the founding members of the EU, of NATO, and of the European Council, and of the G-7, G-8, OECD, and United Nations (the non-permanent member of the Security Council in 2007-2008).
So for media reporters and commentators, please let us get the facts straight. Once and for all?!
Origin of Italian jurisprudence
Italian jurisprudence developed from Roman Law. It was shaped in the course of history to become a modern and very fair system. Judicial powers are subjected to a very complex and extremely pervasive set of checks and balances, which really assure maximum protection of every citizen’s rights.
Comparing the US and UK common law system - a model founded on non-written laws and developed through judicial proceedings - with this system which arose from the Roman Law model - based on a written civil code - is really like comparing apples to oranges.
They were both conceived to protect individual’s rights at a maximum level, while seeking justice for the victims. But with entirely different processes.
One is not necessarily better or worse. But there are legal experts who think the Italian system is distinctly fairer - much more weighted toward the defendants. In the US and the UK the prosecutor usually has to make it through only one pre-trial hoop. In Italy the prosecutor has to make it through a whole row of pre-trial hoops.
Legal status of a witness and a suspect
Let’s see what happens in Italy to the legal status of a person who, while considered a “persona informata dei fatti” which means “a person who could yield useful information” in relation to a brutal murder, suddenly becomes a suspect in the eyes of the police.
If while interviewing the “person who could yield useful information” the suspicion arises that such person could have played an active role in the crime, their status then turns into that of a suspect. The police can then detain that suspect up to 48 hours.
Those 48 hours are the period within which a prosecutor - if he believes that the evidence of guilt is meaningful - can request a validation of the arrest by the Judge of Preliminary Investigation (the GIP).
If the judge agrees with the prosecutor that a serious indication of guilt exists, a warrant for the arrest is issued by the judge, and the person’s detention is thus validated.
Immediately, as soon as the status of “person who could yield useful information” status changes into the status of a suspect, the suspect person has a right to legal counsel. This legal counsel normally immediately appeals for the release of the suspect.
Subsequent hearings by different judges
Thus setting in motion what can be a LONG sequel of hearings - for which in US and UK common law there is no such equivalent. Each hearing is headed by a different judge. This judge examines prosecution and defence arguments, and decides if the suspect may be released on any of these bases:
- Seriousness of the clues presented by prosecution
- Likelihood of repeating a similar crime
- Likelihood of fleeing the country during the ongoing investigation
- Danger of tampering with, or fabricating evidence
If every one of the defence appeals fails, in front of a number of different judges, in a number of different hearings, and the investigation is officially closed, the suspect then goes on to a pre-trial hearing.
Once again here, yet another judge rules either to clear and release the suspect by rejecting the submitted evidence, or to send the suspect to trial on the basis of that evidence, thus making the charges official.
Judicial decisions on bail, house arrest, or jail
Now that the charges are official, the judge can decide if the defendant must await trial under house arrest, or in freedom, of if the defendant must remain in jail.
If the judge, based on their knowledge of the crime and the defendants, estimates that the chances of re-offending or fleeing the country are high, the suspect must remain in jail.
So nobody in Italy can be detained without a reasonable suspicion, a long series of judicial hearings (any one of which could set them free) or eventual official charges.
Amanda Knox and Raffaele Sollecito have not in fact been incarcerated for over one year due to zealous police or a bizarre prosecutor or the complicity of a number of judges throughout the process.
They have been incarcerated because an articulate and balanced process of law has officially and very fairly established there are strong indications that they willingly participated in the vicious murder of Meredith Kercher.
Failure of defenses to persuade judges
Their own lawyers have put up a tough fight for Raffaele Sollecito and Amanda Knox throughout the judicial process. But they have simply failed to convince the judges throughout that process.
One that actually seems strongly weighted in their favor.
Posted by Nicki on 11/26/08 at 06:12 PM •
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Archived in The judical timeline, The officially involved, Police and CSI, The prosecutors, The judiciary, Supreme Court, Hoaxes against Italy, 1 Ital justice hoax, 9 Mignini v Knox hoax, Hoaxes Knox & team, 16 Interrogation hoax •
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