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Prosecuting solidarity: extracts from a new book on the Riace case

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05 April 2023

A book about the political use of judicial proceedings to curtail a virtuous example of solidarity at work in reception practices in a small southern town in Calabria, Riace, led by its former mayor, Mimmo (Domenico) Lucano. Hearings of the appeal trial in Reggio Calabria are underway, after the first trial in Locri (whose sentence is commented on in these two extracts) found several defendants guilty, imposing lengthy prison terms (over 13 years for Lucano, over 80 years in total for 18 defendants) and financial penalties. The contributions to this book focus on the trial, the sentence, the appeal and the reality of the experience of Riace, including trial monitoring reports by Giovanna Procacci.

Translated extracts from the book Processo alla Solidarietà. La Giustizia e il caso Riace.

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Prologue

A political guilty verdict for the purpose of criminalising hospitality towards migrants

by Luigi Ferrajoli

The guilty verdict in the first trial in which Mimmo Lucano was sentenced to over 13 years’ imprisonment, and then the prosecutor’s indictment in the appeal which asked for over ten years [imprisonment], are literally incredible. The whole judgement against Lucano is an exemplary case of what Cesare Beccaria juxtaposed to what he termed an “informative trial” based on an “indifferent search for the fact” and on a willingness to listen to conflicting claims, and stigmatised as an “offensive trial” in which, he wrote, “the judge becomes an enemy of the defendant and does not seek out the truth about a fact, but rather, they look for the crime in the prisoner, undermine him and believe they are losing if they do not succeed in doing so, and thus contradict the infallibility that man claims in all matters”.*

The most serious charges are, in my opinion, unfounded. In fact, criminal association, fraud and embezzlement require, as their constituent elements, both bad faith and a certain unlawful intent and some sort of undue personal profit. However, the lengthy motivation of the sentence does not provide any proof of these elements. Rather, there is evidence of the contrary, namely that Lucano was absolutely convinced, as is also certified by the very interceptions that the sentence refers to, that he always acted for the purpose of enacting the best possible reception and integration for migrants. Hence, it appears to me that we are in the presence of administrative irregularities, committed out of imprudence while trying to create a solidarity-based reception system, which only the logic of the enemy that affected the judges has transformed into such serious crimes.

Hence, this is a case of an exemplary sentence whose purpose is to criminalise migrant reception, of which Mimmo Lucano has become a symbol at a global level. Not only that. It is a political sentence of guilt, moulded by the so-called “penal law of the enemy” which is in conflict with the rule of impartiality that is the first deontological rule for magistrates. Several elements prove this: the perverse portrayal of the experience of Riace, which is diametrically opposed to that informed by a reception project that Lucano has repeatedly spoken about in the interceptions and is confirmed by hundreds of volunteers, visitors and journalistic investigations, not just in Italy, but in other countries as well: a capsized vision of the real Riace, born out of misunderstandings and distorted interpretations of the very interceptions which the sentence made reference to.

Thus, the enormity of the punishment and the failure to allow generic mitigating circumstances, which are allowed for anyone, nor of the mitigating circumstance which is absolutely evident in this case, of having acted “for reasons of particular moral or social value” as provided for by article 62 of the penal code, that is, for having been moved [to act] for the sole intention of doing good to human beings whose living conditions were precarious.

However, Lucano’s treatment as an enemy emerges even more emphatically from the mass of insults he was covered by in the sentence that found him guilty on 30 September 2021: “lacking idealism, subjugated by political calculations, by a thirst for power and by widespread greed”, “moved by an obsessive demon” in seeking “always greater visibility”, “power hungry”, dominated by his “craving for power”, “a slave of his burning political ambition” who “subtly resorts to low-grade accounting tricks”, “in order to horde public resources in a vile manner”, whose “dogged determination” was expressed by forcing a public administration to serve “his own personal interests” and to his “power as a boss”. These are just a few of the offensive claims woven into the tapestry of this sorry document of judicial abuses. But there is more: an initial claim that is typical of the logic of Inquisition: the lack of evidence of Lucano enriching himself is due to “his cunning, dressed up as false innocence” which is certified by his house, “wilfully left in humble conditions to conceal the unlawful activity that he carried out more convincingly”.

Overall, we are witnessing a pitiful example of a massive violation of the rules of judicial deontology [professional standards] that compels judges to respect the parties concerned, starting from the defendant, who is not an enemy, as there are no enemies, but only people who appear before penal justice, and they are guaranteed the dignity which is written into article 3 of our Constitution.

After all, the very logic of the enemy – cruelty itself – has been exhibited and applied, by our governing [political] right, to the entire phenomenon of immigration. Here, we are facing an upping of the stakes that falls within the very logic of penal populism. Usually, populist demagogy aims to promote, through the “security packages” that have now become traditional, fear and consensus in support of harsher sentencing, pointless but nonetheless lawful, against conducts that are nevertheless unlawful from a penal viewpoint like street-level crime and crimes of subsistence. Instead, policies have been adopted against migrants that are themselves illegal, consisting of large-scale violations of human rights to repress conduct that is not just lawful, but highly moral. This is what happened in Italy - and which the current government’s first acts show an intent to repeat – enacted by the first government of the XVIII legislature [March 2018 to October 2022] which unleashed a vilification campaign to garner support for its policies against migrants against all such subjects, including those already integrated in the country, to reduce or impede any form of assistance and rescue for them (through law decrees no. 113 of 4 October 2018 and no. 53 of 14 June 2019). The lowest point in this cruel logic was reached with the aggression against those who save human lives, for the miserable purpose of attaining consent for illegal measures like omission of rescue, the closure of ports and holding people hostage.

The outcome of these ruthless practices is a general lowering of public spirit. The consent that they obtained, which their authors gloat over as if it were a source of democratic endorsement, is in reality just the sign of a collapse of the sense of morality at the level of the masses brought about by an instigation to be intolerant towards the weak. When inhumanity, immorality and indifference towards suffering and deaths due to omission of rescue are practiced, exhibited and flaunted by public institutions, they are not just legitimated, they are also admitted and fuelled. They become contagious and are normalised. Otherwise, we would not understand the mass consensus that fascism enjoyed. These unjust policies, as they sow fear and hatred for those who are different, stripping value from basic feelings of equality and solidarity, are poisoning our society and are heavily deforming the democratic identities of Italy and of Europe.

* Cesare Beccaria, Dei delitti e delle pene, ed. Livorno 1766, curated by Franco Venturi, Einaudi, Turin, 1981, Section XVII, p. 46.

 

Introduction

A trial that brings us all into play: why it is a “political trial”

by Fulvio Vassallo Paleologo

If one crosschecks the developments of the penal proceedings that concern rescues and the reception of migrants with the hammering modes of communication peddled by the media, it appears that the constitutional system, and even the norms of penal law, may be recalled or elided, depending on the people they act upon and the roles they embody, or which they are assigned. This reflection applies both to proceedings opened concerning search and rescue activities at sea, and to those that are still pending, or have ended, on the matter of territorial reception. From the “sea taxis” to the “bliss of reception”, a criminalisation of solidarity has been consolidated in common language, prior to judicial sentences, and hence a criminalisation of those who practice it on a daily basis, which is not even chipped by acquittals and the shelving of cases that have reestablished the truth about facts and respect for the principle of legality. While vast areas of impunity or of lack of controls have contributed to malfunctions in the public reception system, the focus has been placed on solidaristic models of widespread reception. This is not just a matter of an evident crisis of the constitutional principle of equality before the law. Apart from the negative consequences suffered by the defendants at the level of the right to defence and the length of trials, which de facto becomes an early punishment, the most serious harm that continues to occur is the spread of a common sense of indifference, if not open social hatred, towards all the various forms of rescue and solidarity activities for the benefit of migrants that contaminates relations between persons, alongside a differential recognition of fundamental rights. It is a degenerative process in relation to the social body and the institutional framework that feeds into that populism which tends towards strengthening the powers of central and peripheric bodies (like the prefetture, offices of the government envoys) of the executive, and it goes so far as to also question the principle of legality, the separation of powers and the independence of the magistrature.

The contributions and testimonies in this volume are the product of a common and shared perception that is drawn from very different working experiences and professional milieux, about the pedagogical reach and political worth of the “Riace case”, a political worth that is noticeable in every phase of the penal proceedings against Mimmo Lucano and the other defendants in the “Xenia trial”. The main defendant, a former mayor of Riace, is charged of having a political motive that is supposedly the wilful element on which the charge for the most serious crime, that of criminal association, rests, because all the motives of an economic nature have been ruled out in earlier phases of the proceedings. This “motive” has not been proven, neither in the guilty verdict issued in the first instance trial, nor in the requests by the prosecutor in the appeal trial, which stays at the level of evidential elements drawn from a partial reading of a mass of interceptions, hence from elements of (pre)judgement that may also be belied on the basis of the authors of the contributions’ research activities, or of their direct involvement in the facts that are the trial’s subject.

It is not easy to understand how the Locri court did not take into account what emerged from the discussion in the first trial, which lasted over two years and which had demonstrated a reality about the facts in question that was different from that depicted by the public prosecution. Yet, it appears that also in the appeal trial the prosecution’s thesis repeats the same scheme whereby single criminal acts are contested which are supposedly bound by an associative link of which, however, it is hard to find any material traces and subjective components that are not drawn from interceptions, from investigative findings by officials or investigations undertaken by the Guardia di Finanza [customs and excise police].

It is also necessary to recall the conjuncture of the reform of operative rules endured over time by the primary and secondary reception systems in Italy. These systems were devastated after the reform imposed by law decree no. 113 of 2018, which abolished humanitarian protection and reduced the reception burden envisaged for public bodies to carry for the benefit of people who disembarked or were rescued at sea. Even today, no opportunity is missed to re-launch a policy of deterrence, based on the denial of reception standards and of equitable procedures, which are supposedly also imposed by European directives.

Hence, the texts collected in this book do not just look at the past. Their authors are conscious that the appeal trial in the “Riace case” is taking place at a time of further political regression in which some would like to cancel not just the values of widespread reception and inclusive solidarity, but the principles that are the cornerstones of a democratic state may also be put up for discussion, starting from the independent role of jurisdiction and, therefore, the relationship between the executive power and the magistrature.

In the case of the appeal trial in Reggio Calabria, which, in any case, will not end with a definitive sentence for the Xenia trial, what is at play is respect for a wider constitutional framework, not just the outcome of a penal proceeding or the fate of individual defendants. Hence, it is a matter that concerns us all and which calls us to become involved personally, not just to defend the principles of solidarity, and people who fight every day to enact them, but to safeguard the models of social cohesion and the constitutional foundations of the democratic state over time, through an active role to play for researchers and citizens acting in solidarity, also by reproducing the model of active solidarity that was tested in Riace.