The judge's responsibility

Leonardo Sciascia
Corriere della sera

ABSTRACT: The Tortora case is simply a further occasion to underline the gravity of the situation of the administration of justice in Italy: accusations that are not confirmed by objective evidence; 856 arrest warrants, 200 of which mistaken; charges that are only the fruit of the mental insanity of repentant criminals. All this calls for an in-depth reflection on judges and on their mistakes: every judge, after having passed the state examination, should spend at least three days in prison, or, realistically speaking, "burden them with (civil) responsibilities" without damaging their independence.
(Il Corriere della Sera 7 August 1983)

About three months ago, when the electoral campaign had just begun, as I was making a list on this same newspaper, together with Pieroni, of all the evils affecting Italy, I put the shortcomings and the malfunction of the administration of justice at the top of the list. I hoped then - and I believed and expected - that such evil would be given programmatic priority in the list of evils that the governmental forces issued from the elections should and must deal with. But I believe the problem has not been tackled, and on the contrary set aside: perhaps because it was clearly the most difficult one. This is not a good omen. The expression "to postpone to a better time" really does not apply here. If things are postponed, they usually become even worse. Time cannot minimize problems such as this: it can only aggravate them. And it will become worse, if we do not find a remedy soon.
Therefore I address myself to the Prime Minister as a citizen, as a friend, as a person who discussed the problem with him with the same passion: I ask him not to let the problem be set aside, but to deal with it with serenity, poise and logic. I ask him to reassure citizens, to return that faith in justice which is disappearing, if it has not already completely vanished.
The Tortora case is simply a further occasion to underline the gravity and the urgency of the problem. One month ago, on French television, I expressed my perplexities and concerns on the massive operation against the mafia carried out by the judicial offices of Naples, and my personal belief that Tortora was innocent. I do not ask myself: "What if Tortora were innocent?": I am certain that he is. The fact that I know him personally and that I consider him an intelligent and sensitive man (I never watched him on television) might be considered a secondary and possibly even misleading element; but from the day of his arrest I deliberately disregarded the relation existing between him and me, and took only the elements revealed by the newspapers into account. Not one of these newspapers instiled doubts as to his innocence. The elements they produce are all "external" elements, that are confirmed neither by the facts we know about Tortora's person and life-style, nor by a single supporting document.
The fact of finding a letter written by a camorra member and addressed to Tortora as an accomplice (but has such letter ever been found?) would not necessarily mean that Tortora received it. The only evidence, the sole and true evidence, would be finding a similar document in Tortora's home or in the places he used to go to, where he could have hidden it. Let us draw a veil over the miserable mythomania that cases such as this give rise to (to avoid which the investigating magistrate would need only call the local police station a few days or a few hours before collecting the testimony); wasn't the fact of having found no "blood vow" (no scar was found on Tortora's wrists; and what if he had had a scar because he bumped into a broken glass?) reason enough to release him, temporarily at least?
What we are talking about here is the case occurred to a man who benefits from a great popularity and esteem. And here a question arises: are all his problems the fruit of this popularity and this esteem - in the sense that the inclusion if his name added more sensation to the sensation of the operation - or can any Italian citizen end up in a similar situation? Unfortunately, I think there is no alternative: the answer is yes, for both hypotheses. The charges brought against Tortora by the repented camorra members were not scrupulously and accurately examined before arresting him, because the climax and the measure of the vastness and severity of the operation were given precisely by the warrant against Tortora.
On the other hand - a thing said, repeated and never denied - if as many as 200 arrest warrants out of 856 were mistaken, and the people arrested by mistake were released after a couple of days (but think of it: these people were woken up at dawn with their families, handcuffed, their homes were searched, they were taken to prison, kept there until the mistake became clear; all this leaves a deep scar in a person's life), one can easily imagine how amid such haste and confusion the name of Tortora, pronounced by the camorra members, seemed to be the safest one as well as the most sensational. There was no possibility of a misunderstanding, no risks of a case of homonymy: the repentants had accused the TV conductor, the man recognized by millions of viewers.
But I was imprecise when I said that the arrest of two hundred citizens by mistake was not denied. A subtle, incredible, alarming denial was made to circulate, according to which many of the persons released would return to prison. Biagi (1) quite rightly comments: "This is to say that three mistakes are allowed: arrest, release, a new arrest. Which is the good one?" I am very skeptical when mental insanity is appealed to and accepted in mafia trials. But I can see something similar to mental insanity in the camorra and in camorra members. If you prefer we can call it imagination, phantasy: I will continue to call it insanity, criminal folly on the part of criminals. A madness which is of course not void of a method: which consists in mudding the waters, scattering suspicions and accusations, implicating as many people as possible. The method, in other words, of building one of those houses of cards that can be made to collapses by simply removing a card at the base. And my impression is that the Tortora card was placed there to keep the whole building together: once the card will be necessarily removed, the whole building will collapse and all will appear as a huge mistake, with no credibility. A problem will remain: how and why the magistrates and the judges chose to believe in a construction which even the common citizen, who listens and reads news, sensed was fragile from the very beginning. This is the core of the problem.
Any citizen, regardless of his profession, has the mental burden of responsibility. Regardless of whether he has a subordinate employment or is self-employed, he knows he is responsible for his mistakes and must pay the price, according to the gravity and the damage he has caused the institutions he depends on the client he is working for, and this apart from the self-esteem involved in doing a good job. A magistrate is, on the contrary, not only not responsible for his mistakes and not obliged to pay the price: any mistake he makes will not represent an obstacle for his career, which he will automatically pursue to the top, even if not with top functions. I believe this system exists in Italy only.
Needless to say, a similar regulation, almost utopian, would call for a pool of extraordinarily intelligent, learned and intuitive magistrates, but also extraordinarily sensitive and conscientious magistrates. Here we really enter the realm of utopia. How can we go beyond it?
A remedy, albeit a paradoxical one, would be for each magistrate who has passed the examination and been given his post, to spend at least three days in prison amid common criminals, preferably in the notorious ones, such as l'Ucciardone or Poggioreale. This would be an unforgettable experience, and such as to produce an in-depth meditation and nagging thoughts in the magistrate, each time he is about to sign an arrest warrant or to issue a sentence. However I realize that this is simply another utopia. The simplest remedy would be to burden the magistrates with responsibility without however preventively depriving them of their independence: that is, giving each citizen who has been unfairly sentenced, once he has been acquitted for a more or less complete lack of evidence, the possibility of claiming damage from the persons who kidnapped him and slandered him. How many cases have we seen, of extremely serious charges then dissolved stating the complete lack of evidence?
If I am not mistaken, even Mr. Sarcinelli, vice-governor of the Italian State Bank, was released this way. And with no possibility of claiming damage. A fact which is belongs not to civilization and law, but to the jungle and to barbarity.
However, it must be said that in a case such as the one involving Tortora and the two hundred citizens arrested by mistake the power of the magistracy was not the only factor involved. The chief factor was probably the introduction, in the Italian legislation, of the so-called "repentants". But I have already mentioned this more than once, even before the negative effects of it became evident.

Translator's notes

(1) Enzo Biagi (Lizzano in Belvedere, 1920): journalist, author of best-sellers (America, 1973). Collaborates at the newspaper "La Repubblica" and the weekly "Panorama".