The tangentopoli mystery inside the CSM

It then took shape in the PDS, 'also thanks to the collateral force of Magistratura Democratica, the idea that the intervention of the judiciary could be functional to the change of political order'. The author goes on to say that 'it is a matter of "affidating to the courts, or rather to the Public Prosecutor's Office, the solution to a political problem that cannot be solved by the means of politics: winning the 'duel on the Left' that had dragged on throughout the 1980s, and thus emerge safe and sound from that ugly juncture'. In addition to 'Repubblica' and 'L'Unità', 'La Stampa' and 'Corriere della Sera' lined up in support ('but with less overheated tones'). The media-judicial alliance was therefore based - Patrono specifies - on two assumptions: to foment popular consensus for 'Mani pulite' (clean hands); to direct the action of the Public Prosecutor's Office 'in such a way as to keep the Pds and the left-wing DC, i.e. the main 'front' political forces, shielded from prosecution as far as possible'.

Returning to the CSM, it maintained a 'somnolent silence' yes, but 'active' on 'Mani pulite', towards which it assumed 'an attitude of broad condescension' and 'protection'.

Of that silence, in the author's opinion, there were two reasons.

First of all, the 'High Moniti' (a thread of irony seems evident) of President Scalfaro: for Cossiga's successor, 'the judiciary must be as independent from the outside world vis-à-vis politics and any force that intends to threaten it, as it must be protected from pressures coming from within the judiciary itself'. With Scalfaro as President of the Superior Council, the magistrates 'felt they were in a barrel of iron'.

Second reason, much more decisive. Any anomalous management of 'Mani pulite', and as such liable to intervention by the CSM even in disciplinary matters, were overshadowed by the real issue at stake in the current clash: which concerned the position of the Public Prosecutor's Office in the constitutional system and, hence, the obligatory nature or otherwise of criminal prosecution. Patrono has no doubts: it cannot be accepted, "as in fact has happened and continues to happen, that it is the Public Prosecutor's Offices themselves, each on its own behalf, to select according to 'priority criteria' the crimes worthy - in relation to the peculiarities of the district of competence - to be prosecuted in criminal proceedings, some more serious and/or alarming yes, others no; without, moreover, such a choice of judicial policy being matched, not even remotely, by some form of political responsibility. Power without responsibility is tantamount to uncontrolled sovereignty, and as such is unacceptable'.

Professor of Administrative Law in the Department of Legal Sciences, University of Salento