Magistratura

Many people will be suprised that, just because they kidnapped Hassan Osama Nasr in Milan on February 17 2003 13 CIA agents are wanted for arrest in Italy. I mean people know that, in theory, kidnapping by secret agents working for an allied country is a crime, but many people count on one thing being true in theory and another being true in Italy. 13 of these people are going to have to run up ridiculous expence accounts somewhere else, because they didn't understand that Italian judiciary is independent in Italy as well as in theory. I found it hard to believe myself. The Parliament is working to remove this trange anomaly.

I assume that, even under pressure from the Bush administration, the CIA remembered to ask someone if it was OK before breaking Italian law. I would be very described if they hadn't checked with the executive and, in particular, with a minister and with SISMI (the Italian analogue of the CIA). I like to imagine that the response was "sure no problem we regularly break the law and none of us has done any serious jail time" (a lie but, sigh, pazienza, you can't expect these people to admit every embarrassing little fact). Almost seriously, counting on such assurances would be totally idiotic. The Prime Minister has managed to keep his personal posterior out of prison so far, but that required constantly changing laws to make his most recently discovered crime un prosecutable. If he could control magistrates in Milan he wouldn't have had to rub his countrymen's noses in his arrogance and criminality so openly. I mean asking him for assurances that there would be no trouble with Milanese prosecutors is like using a ouiji board to ask the dear departed for the secret to imortality.

OK so how independent is the Italian judiciary. First, as noted below, the judiciary or Magistratura includes prosecutors as well as judges. Each is supposed to be equally independent from political pressure. In Italy, making prosecutors subordinate to elected officials is considered roughly equivalent to abolition of the rule of law. A controversial aspect of the system is that the magistratura is one body. People become magistrates and then switch back and forth from prosecutor to judge during their career. Defence attornies, needless to say, don't like this.

To become a magistrate one has to demonstrate knowledge of the law (and ability to write in Italian) on a written exam. The exam papers are numbered and, in theory, the magistrates who grade the exams don't know who they are grading. The exams are ranked. The people with the top N scores get to be magistrates, where N is the number of vacancies chosen in some obscure process where different offices have to convincingly claim that they are even more appallingly understaffed than others. The person with the highest score decides which vacancy to fill, then so on down the line. Thus the initial assignment of people to offices depends on anonymous grading and individual choice.

Now one might wonder if this system works as claimed. I think it does. I find this amazing, but the evidence is strong. Sometimes it is clear what the magistratura wants. For example, they clearly hated the red brigades (who were killing magistrates). Thus one may assume that, if anyone would be the victim of fraud in this system it would be a member of the organisation widely suspected by magistrates of being, more or less, the legal wing of the red brigades. This suspicion is now expressed in final sentences and the former head of that organisation is now in prison. I happen to personally vaguely know a magistrate who was, at the time he became a magistrate a member of that organisation. Notice I haven't named any names, because I'm not sure I have permission to blog about this (not that it is a secret or anything). I consider this very strong evidence that, strange as it may seem, the system actually really works in practice as it is supposed to work in theory.

Promitions and transfers have a lot to do with seniority. Aside from that, they are decided by the Consiglio Superiore della Magistratura (CSM). The majority of commissioners in the CSM are elected by, you guessed it, magistrates. Thus, in principle, the magistratura is completely independent from politicians. It is a self selecting and self regulating body. Some might consider this undemocratice.

A result of all this is that people with wildly differnt political views find themselves working together in the same courts.

For the 13 CIA agents the relevant issue is that no one who is not a magistrate can promise immunity from criminal prosecution. Magistrates have police working under them implementing their orders. They conduct investigations. It is not possible to force them to close an investigation. The absolute priority of the current majority is to get magistrates to stop investigating the Prime Minister and his buddies. They haven't managed that.