Senza Censura N.2 - Giugno 2000




Restructuring and penal trial


Taken from the contribution of the Lawyer Giuseppe Pelazza to the debate at the Assembly on Repression organized on 11 Febrary 2000 by the Centro Popolare Autogestito (Self-managed "popular"/occupied social center) of Florence, Italy (revised and corrected, March 2000).


With this contribution to the discussion, I would like to try to provide some points of analysis for a reflection on certain aspects of the repressive action (including preventative) of the State against movements or in any case against those people who belong to those areas which are commonly defined as representing "social hardship."


In particular, it is interesting to examine the close ties which connect the situation of the power relationships among the classes, at different times, with the legislative system in its entirety, analysing the penal system together with social legislation (social security, health care expenditures, welfare) and labor law. In fact, faced with the dismantling of social security and welfare legislation, legislation favoring employment and safeguarding the stability of job positions, the State has a greater need to deal with the social ill-being provoked by its own political decisions with mechanisms of repression and control, based on the use of those apparatuses directly responsible for institutional violence.


If we want to go back a bit in the years, we can remember how at the end of the 1970s, on the crest of an expanding economic situation and quite advanced workers' struggles, there were significant innovations in the field of labor legislation: the law on individual job dismissals in 1966, and the Workers' Statute -- which they are now preparing to completely dismantle, including through the referendum to abrogate its article 18 -- was approved in 1970. At the same time, alongside the concealed action of sectors of the State, violently repressive through "stragismo" (the strategy of indiscriminate terrorist massacres of civilians), there was a development at the penal level in a fairer, more democratic sense. For example, it is possible to cite the so-called Valpreda Law, recalling how, at the end of the '60s and early '70s, release on parole was forbidden by law for those accused of serious crimes. In the wake of the strong mass movement to free Valpreda and denounce the State's responsibilities in the Piazza Fontana Massacre, a law called the "Valpreda Law" was approved in 1972 to permit, even in those cases where it had been forbidden, the granting of release on parole. And in addition, right at the same time as the killing of Pinelli in the Milan Police Headquarters, paradoxically there went into effect the law (December 1969) which no longer permitted the interrogation of those taken in by the police.


And then in the mid-1970s (after the safeguarding of workers' rights had undergone some significant developments at the judicial level), there was a turn-around, and the attack began on the material living conditions of the workers and on the working conditions in the large factories: those were the years, for example, of the campaign against the so-called "absenteeism," in reality an out-and-out attack on workers who became ill because they could not stand up to the work pace and on those young and somewhat marginalized workers who theorized the refusal of work, since there are better things to do than stand at the assembly line.


If in those years, therefore, great changes began to take place at the level of labor rights, with a creeping "regression" of labor safeguards, things were moving at the penal level also and, despite the fact that there had not yet been any significant episodes of armed violence (the killing of the attorney general of Genoa, Coco, by the Red Brigades was not until 1976), the repressive instruments of the State were significantly reinforced with the approval of laws increasingly less respectful of the Constitution and the legal rights of citizens. The law on firearms (the so-called Barolomei Law), for example, was passed in 1974, and introduced much heavier sentences, and in 1975 the law was passed which declared incendiary bottles to be the equivalent of weapons of war, providing for, moreover, suspected crimes based on the "type of perpetrator," that is connected to the political identity of the person committing the crime, so that a person who is found in possession of even only one molotov bottle, but "with the objective of subverting the State," is punished with from five to fifteen years in prison. The Reale Law is of the same year, and extends, among other things, the so-called "legitimate use of arms" by the police even to the attempt to prevent the committing of serious crimes, an evidently extremely wide option, so that starting at that time (right from the months in which the approval of the law was under discussion due to the galvanizing effect it had on the law-enforcement forces) there began the new epidemic of killings at police road-blocks, in police actions and at demonstrations (we can remember, for example, Giannino Zibecchi, Rodolfo Boschi, Anna Maria Mantini, Pietro Bruno, Mario Salvi, Francesco Lo Russo, Giorgiana Masi and many others).


Against the mass movements of those years, in particular against the "the movement of '77," there would then be used the entire range of instruments of repression, including the crime of association (which in this moment is returning to fashion ...). For example, in the crime of "armed band" are inserted mass actions, such as the expropriation of supermarkets, the breaking into the offices of the PSDI (small "Social-Democratic Party") or of "Communion and Liberation" (a reactionary Catholic organization), despite the fact of the manifest inexistence, in these political situations, of rigidly-structured organizations, with the division of roles and responsibilities, with a regular arms supply, etc.,


At the end of the 1970s, there began, in this way, the complete perversion of the nature of the penal trial which should be, in its essence, a moment in which there is a public discussion of a certain question, determining the existence or not of proof against the person under accusation, evaluating, if there is proof of guilt, the "degree" of punishment with relation, in particular, to the gravity of the crime committed. Now, instead, the trial was transformed into an instrument to use "against" a certain social or political area, and the appearance of being a "third" party was definitively abandoned in the exercise of the judicial process. The political use of the judiciary, which many politicians, on the Right, complain about today, was actually born in these years.


At the legislative level, moreover, police interrogation was re-introduced, while the right to defense began to be dismantled: in 1978 the law was passed which established that after two expulsions from the Courtroom (as if the trial were a basketball game) the accused no longer had the right to be present at the discussion of his case, so that the trial could be undertaken even in his absence. But it was then the center and the end of the trial which changed radically: the seriousness of the facts committed are no longer evaluated, but instead the degree to which the accused conforms to the dominant values -- and so the proof of the facts committed is no longer important. It was the Cossiga Decree, at the end of 1979, which introduced the first elements of judicial "rewards" with its article 4, which reduced the sentences of those who collaborate, and which extended the instrument of the crimes based on the "type of perpetrator," that is, connected to the political identity of the person committing the crime, with article 1, which increased by 50% the sentences for all the crimes committed with the aim of subversion. Then in May 1982 the law on "pentiti" (those "repenting") entered into effect, which established still more consistent reductions of sentences for collaborators, and, in reality, with reference to the crimes committed up until January 1982, had no operative objectives for the future, so that manifest was its objective of fulfilling the promises made, by the police forces and by the public prosecutors, to the various major "repentant "figures of the armed struggle arrested at the beginning of the 1980s (Peci, Barbone, Sandalo, Viscardi and so on).


The fact that the trial was no longer centered on the verification of the actual proof, but instead on the evaluation, as mentioned earlier, of the conformity of the accused, was also immediately reflected in prison, since the differentiation of the accused according to their identity had a precise reflection on their collocation in prison. If in 1975 there had been the reform in a democratic sense of prison law, the only concrete application of the law, at the level of political detention, was that of its article 90, of the article, that is, which denied the contents and the application of the reform in the penal institutions where there was a particularly tense climate.


With reference to this article, and outside of any legislative provision, an ad hoc circuit of "special prisons" was actually created, including Trani, Cuneo, Pianosa, Nuoro, Asinara, Novara, Fossombrone, Palmi, and others. A "special prison" meant meeting with relatives and lawyers through glass partitions, humiliating body searches when the prisoner went to these meetings or when taken to trial, and, seeing that there was no limit to the worst treatment, there were also the so-called "braccetti della morte", or "little death rows," where prisoners could end up who were considered particularly "disloyal", and so these constituted a further "deterrence." Here there was segregation twenty-four hours a day, with four hours of open-air exercise a week, in a sort of corridor with grated ceilings, and so without the possibility of seeing the sky except through the slit-openings of the grates, the impossibility of having more than one book at a time (and only from the prison library), the possibility of having only one pencil and five sheets of paper, protocolled, stamped and approved by the prison officials, a total block on correspondence, the impossibility of any form of expenditure and prohibition on having the normal appliances for cooking. A situation, therefore, of total and utter annihilation: and so, at this point, if the accused who is to participate in a trial is kept in similar conditions, there is no sense in referring to his right to defense or to trial guarantees.


The development of this judicial approach then led to situations which, apparently, seem to be "deviations from the rules," but which, in reality, are nothing more than the further consequences of this type of mechanism: I am referring to numerous cases, well documented, of out and out torture committed in these years. It's possible to recall for example, that after the case of Dozier, the NATO general in the North-East of Italy, kidnapped by the "Partito Comunista Combattente" ("Combatant Communist Party") Red Brigades in January 1982, a meeting was held of the Inter-ministerial Committee for Security which adopted new measures against terrorism (this was the headline in the newspapers). But these new measures were never made public; they never took the form of decrees or regulations. But, after that meeting, the episodes of torture began, extremely serious episodes of torture, such as that inflicted on those arrested for the Dozier case, and as demonstrated by these quotations, taken from the criminal citations brought against the police torturers: "... they loaded him into the trunk of an automobile, with his hands and feet tied and his eyes blindfolded, and they transported him to an unknown location where Di Lenardo was made to get out and subjected to the beating and threats described in the following charges ... violence consisting in the beating of various parts of his body, threats consisting in the firing of a gun and then more violence consisting in his being tied lying down on a table and made to swallow coarse salt, with which they had filled his mouth and, keeping him tied down to the table, preventing him from breathing through his nose and forcing him to swallow a large quantity of water ..." and in addition "causing burns on his hands and on other parts of his body, as well as a serious of wounds in the calf of his left leg inflicted with sharp, pointed instruments and in the administering of electric shocks through the use of particular instruments ..."


Clearly, in this context, the trials no longer had any raison d'Ítre. Among other things, there was a particular curiosity, the Italian Parliament denied authorization to proceed with criminal charges against the chief torturer, who in the meantime had been elected as a parliamentary deputy in the electoral list of the PSDI (small Social-Democratic Party), while the other police officers were acquitted by the supreme court of Cassazione, due to the statute of limitations for the crimes of which they were accused ...


The model of a trial based on the differentiation of the different types of accused (exorbitant sentences for those who defend themselves or their views, substantial impunity for those who "repent") became even more adulterated in 1986-87 when the law on "dis-association" was approved, which pressured the accused to align himself with the prevailing values, with the promise of non-punishment for the crime of association and connected crimes on the condition that there be the express declaration of rejection of violence as a method of political struggle. And, in my opinion, it seems truly abominable to request this type of declaration from persons who have been subjected to the maximum of institutional violence on the part of the State. And this is without taking into account the fact that a similar affirmation of principle is in contrast with the reality that violence, willing or unwilling, is a method of struggle which unfortunately is in the very nature of politics. And it is paradoxical at best that the very legislators who at that time demanded this declaration were the same ones who, in later years, would approve of dreadful mass massacres with the bombings of first Iraq and then Yugoslavia.


Going back to the subject of trials, it could perhaps be interesting to remember that it was in the trials of those years that the concept of "moral complicity" began to be so-widely applied, a concept which is then found once again in the charges and accusations of the much smaller trials today for questions regarding, for example, the centri sociali (social centers), occupations, squats, resistance, seditious assemblies, and so on. Moral complicity meant, then, that the mere presence, for example, in the leadership of a Red Brigades column, implied automatically penal responsibility for everything attributed to that particular column, without any need to prove actual direct links to the actions under accusation. In this way today, in the trials regarding demonstrations, the mere fact of one's presence is, for the accusation, sufficient to incriminate for complicity in seditious assembly, resistance, etc.


It is worth underlining, at this point, that the shifting of the trials to the level of the identity of the accused, was not brought into question even after the so-called "emergency" had been overcome. In other words, it is quite clear that in those years proceedings were not undertaken according to emergencies: these emergencies are non-existent! We have instead witnessed the development of a precise plan for the remodelling of the State which had, and still has, its own clear logic.


This remodelling in an authoritarian sense developed in a quite sophisticated way because the previous levels of guarantees and democracy were no longer considered compatible with the social and economic situation which was emerging. For example, the new code for penal procedures, which was considered by many to be a positive model representing a real turning-point (the Anglo-Saxon-style accusatory rite and other such nonsense) is in reality a model which can function only by developing to the maximum the so-called alternative rites, such as plea-bargaining, in which the checking and verification of the accused's identity is predominantly evident: with regards to the accused's conformity to the system, it is enough to remember that it is the accused himself who asks to be convicted of that crime which he himself feels to be just, and he negotiates it with the public prosecutor. This has become the new center of the routine of the penal trial which, as far as legal rights and guarantees are concerned, has seen the reintroduction, for example, of the so-called "spontaneous" declarations by the accused (and everyone knows that they are "spontaneous" precisely because they are made at the hands of the police and in the absence of defense lawyers).


A far from secondary aspect of this progressive transformation of the State was then the incredible breaking of constitutional legality undertaken in 1991 with the War in the Gulf.


At the beginning I made reference to the stragi di stato, that is the State-sponsored terrorist massacres, the responsibility for which was not claimed, but which were the dirty work of the so-called "deviated" secret services (because every time it was discovered what they did, from the Solo Plan in 1964 onwards, they were called "deviated"): well, with the War in the Gulf the immense massacres of the innocent became directly the official policy of the State, and, at the judicial level, the Constitution and its fundamental article 11 were completely "broken." Parallel to the War in the Gulf, there developed the new defense model, completely outside of the Constitution (which exclusively provides for the defense of national territory), which has as its objective the defense of Italian interests everywhere in the world. And we know quite well how this objective was pursued in 1999, with the ferocious war against the Federal Republic of Yugoslavia.


This is the reason, therefore, why all the discussion about overcoming the emergency laws has been put aside: first, because those laws were not at all about an emergency, but instead were about a structural feature of this institutional order, and, secondly, because they want to keep those laws solidly in place.


In the meantime, in fact, the general economic and social situation has worsened: at the level of labor rights, for example, they've reintroduced the system of caporalato (the day-to-day recruiting of workers by foremen without respect for labor rights or recognized salaries) which they call lavoro interinale, or "temporary labor," but in reality it is the same old system of caporalato. In addition, the system of job stability which had found its formal recognition at the legislative level in 1962, with the law on temporary contracts, in 1966 with the law on individual dismissals, and above all in 1970 with the Workers' Statute, has become a mere fiction: now there seems to be only a great explosion of contracts for "job formation," for "consultation," for "co-ordinated and continuous collaboration," for which the trade unions stipulate local agreements, and the temporary contract as well has become the norm. All of this, in the long term, will certainly create social unrest and discontent with great difficulty on the part of a State tending to cut all social expenditures to manage these contradictions in a "soft" manner. For this purpose, the appropriate ad hoc instruments are necessary (and they are ready), just as specific instruments of repression have been prepared for the immigrant workforce.


As we have seen, they have the instruments at their disposition, starting with that old number 270/B, utilized in the last few months in the Roman investigation of the CARC ("Committees in Support of the Resistance and Communism") and others, and in Pordenone against those accused of radically opposing the enlargement of the Avian military base, and all of this together with ever more elaborate computer technologies and with the lowering of the threshold of the citizen's legal rights and guarantees (the legal restrictions on wire-tapping and monitoring have all been more or less worsened).


In conclusion, I would say that the repressive mechanisms which we are discussing here are more or less the same as those of many years ago, and this should not surprise us because, despite the differences in the relationship of forces, today decisively unfavorable, the fear is the same on the part of the State for all that which moves outside of its compatibilities. This consideration, moreover, I have found confirmed in concrete terms through my recent participation in some of the interrogations conducted by various sections of the DIGOS (special investigative branch of the police) and the Carabinieri (military police) in the so-called investigations of the CARC. The accusations are made in the same old way: "there is nothing on the single individuals but the existence of a secret structure is suspected ..." It was then the fear of communism which emanated from one of the police commissars who was conducting an interrogation: a person who was even amiable, easy-going, modern, who had studied and who was trying to master a "Marxist" language, but who had one problem. Is a hypothesis of communism, of the subversion of the present state of things, still alive? Which was then the same preoccupation, I remember, of the judges of a Tribunal of Surveillance who ten years ago had to decide on the semiliberta' (partial freedom) of a political prisoner and who raised the question: "but does he still believe in revolution?" And fortunately "he" was not present, because, if he had answered, his partial freedom would have been immediately denied him ...