yes to the separation of careers. The external competition in mafia association? Here’s how to intervene»- Corriere.it

Minister Carlo Nordio. Why does he want to put his hand to the accusation of external competition in a mafia association? Isn’t it wanted by Giovanni Falcone?

“I start by saying that this topic is not part of the government programme, but since I was asked for my opinion in a debate, I am happy to repeat it”.

Which?

“Between 2002 and 2006 I chaired the Commission for the reform of the penal code, with authoritative academics, magistrates and lawyers, and I studied everything that had been written on the subject”.

And what did you deduce from this?

«Virtually unanimously, the Commission concluded that external competition should be characterized with an ad hoc provision, because it does not exist as an autonomous case in the code, but is the result of a jurisprudential interpretation that combines Article 110, on competition, with the 416 on the association”.

And what does this entail?

«It has led to extreme application uncertainty. So much so that the Cassation has changed its address several times, and is still struggling to find a convincing definition ».

And so what?

«Voices to introduce a typical rule are almost universal in the academic and forensic world. I quote for all Professor Giovanni Fiandaca, on whose texts two generations of jurists have trained, who strongly hopes for a specific formulation of this crime».

The opposition and its colleagues ask to keep this tool useful.

«I am not surprised that broadsides arrive from the opposition: la politique n’a pas d’entrailles. And not even from the most critical press, which I always read with benevolent indulgence. I am surprised that they come from magistrates, who as legal experts should know that the external competition is now, to quote Churchill, an enigma inside a riddle wrapped in a mystery».

Aren’t you afraid of favoring organized crime?

«My interpretation is even more severe than theirs, because even those who are not organic to the mafia, if their task is facilitated, are mafia to all intents and purposes. So much so that when I directed the investigation into the Venetian Br in the 1980s we always contested the crime of association even against those who lent themselves to simple contact, from medical aid to leafleting, and we had them all convicted as belonging to the armed gang” .

So what does he criticize?

«That the concept of external competition is an oxymoron: either one is external, and therefore one is not a competitor, or one is a competitor, and therefore one is not external. If these topics were tackled with a cool and calm mind, and not with sterile polemics, we would find a solution».

Which?

«The formulation proposed by Giuliano Pisapia: write a very simple and very clear ad hoc rule».

Is there a political-judiciary clash?

«After the controversies arising from my first criticisms on the interference of the judiciary on the bill before having read the text, I met the representatives of the ANM. It was an extremely cordial meeting from a personal point of view, even if there are different ideas on the reforms to be made. We have focused more on shared issues, such as the efficiency of justice and the implementation of resources, than on those where we think differently».

Peace made?

“The confrontation will continue. I was a magistrate for forty years, and I still feel like one. I quoted Terence: Amantium irae amoris integratio estthe quarrels of lovers are a supplement of love».

Why was the forced indictment of Delmastro seen by the government as anomalous?

«Regardless of the current case, I have criticized the compulsory indictment for 25 years: it is a residue of the old code – when there was the investigating judge – inserted in the new Vassalli for a compromise: the legislator did not have the courage to fully implement the adversarial system, where the prosecutor is a monopolist and arbiter of prosecution”.

Why do you think it’s irrational?

«Because, after the forced indictment, a complete file of all the investigations does not arrive in court, as in the past, but an empty file, and the judge must ask the prosecutor to explain the reasons for the accusation. But what will the prosecutor do if he himself had asked for an acquittal? He will certainly not be able to deny himself. And the process will collapse with a waste of time and a lot of useless suffering».

Are you embarrassed that the prosecutor and investigating judge kept the reports of the prison police secret, contrary to what you said in Parliament?

“Let alone if I felt embarrassed. The regulatory interpretations are so volatile that the Supreme Court itself has repeatedly given opposing ones on the same rule. We look forward to the sequel.”

Is speeding up on the separation of careers?

«The separation of careers is consubstantial to the accusatory trial wanted by Vassalli, a multi-decorated anti-fascist partisan, socialist and guarantor. Unfortunately, as I said, it was only half implemented. It exists throughout the Anglo-Saxon world, and in no way undermines the independence of the prosecutorial judiciary. However, it requires a constitutional review, and therefore the path is longer. However it is part of the government program, and will be implemented.

But what does that have to do with the efficiency of justice?

«Separation of careers also means the discretion of prosecution and the power of the prosecutor to retract it. All things that at this moment the Constitution does not allow. But if they were implemented they would avoid at least thirty per cent of the processes that prove to be useless and harmful and slow down the celebration of the most important ones and therefore justice would be faster”.

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