Massimiliano Albanese


Editor's note - We propose again, also in these pages, a reflection published in July 2019 by Mr. Massimiliano Albanese, about a tragic crime story: the murder of a Carabiniere, set in that period in the city of Rome.

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The chronicle of these days at the end of July is monopolized by updates on the terrible story of the death by stabbing, in service, of the Vice-Brigadier Mario Cerciello Rega. A serious and touching fact, which inevitably ends up becoming the subject of political commentary, at a time of particular sensitivity of public opinion towards the issue of immigration, pending the attribution of the criminal act to two foreigners, in particular two young American citizens.

There is no interest, by the writer, in descending into the agony of confrontation on the political issue. Nor to enter into the merits of a crime story that will take its course. But the conscience of the jurist, of the lawyer who, among his professional activities, also exercises criminal law in the courtrooms of the most different Italian Courts, requires reflection and does not allow to remain silent, in front of the circular of an image depicting one of the suspects in custody for the murder, blindfolded, with his hands tied and his head bowed, on a chair inside a Carabinieri barracks.

Innumerable "meme" and social comments lead to believe that public opinion, in the wake of the corresponding statements of the respective political parties, is divided among those who are indignant about the murder - a position that is absolutely acceptable, taking into account not only the absolute un-value of the act itself but also of the high human value, as a husband and as a volunteer in many charitable works, and of the heroic professional commitment on the part of the victim, as a man of the State - and those who, on the other hand, are indignant solely because of the treatment given to the alleged offender.

Allegedly. Just as it leads us to believe in Article 27 paragraph 2 of Italian Constitution, according to which "the defendant is not considered guilty until finally sentenced".

A first theme is therefore to refute the Manichean approach to the question, for which either one chooses a populist position and one is outraged only by the murder, implying that "almost almost the murderer deserved that treatment", at the end justifying it; or one assumes, instead, a so-called "radical-chic" attitude and one is outraged by the treatment reserved to the presumed guilty party, almost forgetting the serious crime he would have committed.

There is, however, a middle ground between the two positions, which seems the most reasonable.

No one can overlook the seriousness of the murder, which, as a result of the reconstruction of the facts, could lead, depending on the legal framework that the case will assume in the present case, even the application of the maximum penalty provided for in our system, namely life imprisonment. Therefore, to be indignant about this fact is not only understandable but also necessary for those with a minimum of civil conscience!

But this does not mean that, while recognizing this seriousness and we are outraged, as citizens, for a gesture that not only destroyed the life of that young family but injured the entire country, we cannot also recognize that another and opposite gesture has equally injured our civilization, our rule of law, in short all of us, even if, unfortunately, of this wound many people are unable to feel the pain, to perceive the blood that drips abundantly, as much as it has unfortunately gushed from the tortured body of the young Carabiniere stabbed. Perhaps, for a defect of sensibility and culture probably irremediable!

So, the wounds are two.

The writer hopes, as a citizen, that the real guilty of the murder will be found and punished as provided for by law and as it is right and sacrosanct that it be in a civilized country. Because that would help to heal the first wound.

However, at the same time, it is hoped that the perpetrators of the very serious behaviour portrayed in the photo of the alleged young American murderer, handcuffed and blindfolded, will also be prosecuted. Only in this way, also the second wound can be treated.

A statement issued on July 28th, 2019 by the Criminal Chamber of Milan, emblematically entitled "Good Morning Guantanamo", highlights in a masterful way how, although "technically the concrete case does not seem to be superimposed on the bloodless discipline of torture, it is certainly a strong psychological method of coercion putting a person in the condition of losing awareness of space, of what happens around him, in the fear, not unreasonable, of being the recipient, in the immediacy, of acts of violence, without the possibility of understanding which ones, by whom and not being able to protect themselves at least using their arms as a shield. All this without a plausible reason that is not what it seems: to weaken the resistance and with it the renunciation of the right to silence. A system of torture, perhaps, outside the legal scheme that we do not know exactly how long it has lasted, nor on what occasions: before, during or after the verbalization of the "spontaneous" declarations; a spectacle that we would not have wanted to see, not even "before" the pain and excitement of the workers after the murder of a colleague, which does not do honour to the Corp - whose summits immediately distanced themselves from the authors, promoting criminal and disciplinary initiatives - which could even lead to the inoperability of the investigative acts, which does not help the course of justice and does not illustrate the image of a Country which should be of law. A system of torture, because it cannot be defined in another way a treatment capable of disorienting those subjected to it, refined, aimed at circumventing the criminal law and crude at the same time".

A torture system. Refined because it aims to avoid the associated criminal penalty for those who apply it. Crude, or rather barbaric, because it is suitable for inflicting a medieval-style suffering that is the exact negation of every contemporary legal civilization.

Who writes adds: useless and indeed harmful, because in fact suitable to make the extorted confession not usable in the trial and because, on the contrary, suitable to stimulate a diplomatic reaction by the U.S.A. Government for the treatment reserved to an American citizen.

Many people, both technical and political, have intervened on this issue.

Among many others, the intervention of the lawyer Prof. Alan Dershowitz, from Harvard University, considered one of the major American criminalists, appears interesting: in an interview published on July 29th, 2019 by La Stampa, the American jurist stigmatized the importance of the photograph in question as evidence of a serious violation of human rights. Beyond a series of fairly simplistic observations and some technical inaccuracies - evidently the result of a lack of direct knowledge of the Italian and European penal system - the distinguished American lawyer has clearly hypothesized a "diplomatic solution" to the issue, highlighting how the seriousness of the situation could lead to government intervention in stars and stripes. Absolutely legitimate from the American point of view.

[ The interview to Dershowitz is available to this link ]

This makes what happened even more serious, considering that it puts Italy in a position where it has to receive lessons from a country like the United States, which, about human rights violations and the application of inhuman punishments, is not really a model of virtue. And this even though, while the American colonies were still struggling with an expensive cup of tea in Boston, in Italy, a certain Cesare Beccaria, in his treatise "Of Crimes and Punishment"(1764), dedicated some fundamental reflections to the theme of torture

If one has the patience to read them, these reflections offer a plastic representation of the futility of torture and they appear very topical. "A cruelty consecrated by use in most nations is the torture of the offender while the trial is being formed, either to compel him to confess a crime, or for the contradictions in which he suffers, or for the discovery of accomplices, or for I do not know what metaphysical and incomprehensible purge of infamy, or finally for other crimes of which he might be guilty, but of which he is not accused. A man cannot call himself guilty before the judge's sentence, nor can the society take away his public protection, except when it is decided that he has violated the covenants with which he was accorded. […]This dilemma is not new: either the crime is certain or uncertain; if it is certain, it is no other punishment than that laid down by law, and torment is useless, because the confession of the guilty is useless; if it is uncertain, it is not to torment an innocent man, for such is a man whose crimes are not proved by law. But I add further, that it is a desire to confuse all relations to demand that a man should be both accuser and accused, that pain should become the crucible of truth, as if the criterion of it resided in the muscles and fibres of a wretch. This is the sure means of absolving the strong villains and condemning the weak innocent. [...] What is the political purpose of punishment? The terror of other men. But what judgment shall we give of the secret and private carnage that the tyranny of use exerts upon the guilty and the innocent? It is important that not every blatant crime should go unpunished, but it is useless to find out who committed a crime, who is buried in darkness. An evil that has already been done, and for which there is no remedy, can be punished by political society only when it affects others with the flattery of impunity. It is true that the more men who, either out of fear, or out of virtue, respect the laws, the greater the number of those who break them, the greater the risk of tormenting an innocent man must be, the more likely it is that a man of equal rank has respected them rather than despised them. [...] It is so little free to tell the truth among the spasms and torments... […].Every act of our will is always proportionate to the force of the sensitive impression, which is its source; and the sensitivity of every man is limited. Therefore, the impression of pain can grow as a sign that, occupying it all, it leaves no freedom to the tortured person but to choose the shortest path for the present moment, in order to escape from pain. [...] Then the sensible innocent will be called the culprit, when he believes that this will put an end to the torment. [...] A strange consequence that necessarily derives from the use of torture is that the innocent is placed in a worse condition than the guilty; for, if both are applied to the torment, the first one has all the opposite combinations, because he either confesses the crime, and is condemned, or is declared innocent, and has suffered an undue penalty; but the guilty has a favourable case for himself, that is, when, resisting torture firmly, he must be absolved as innocent; he has changed a greater penalty into a lesser one. Therefore, the innocent can only lose and the guilty can gain. The law that commands torture is a law that says: Men, resist pain, and if nature has created in you an unquenchable self-love, if it has given you an inalienable right to your defence, I create in you an all contrary affection, that is to say, a heroic self-hatred, and command you to accuse yourselves, telling the truth even between the tearing of muscles and the dislocation of bones”.

Observing the photo of the young American in custody, guarded by the police, it is easy to feel a sensation of strong discomfort, of annoyance, because in that image paradoxically coexist the highest and worst examples of the sense of service and dedication to the State. On the back wall of the barracks, there is a photograph of the anti-mafia judges Falcone and Borsellino. Under the gaze of these models of virtue, bad operators wearing Carabinieri uniforms are carrying out a real torture against a nineteen-year-old boy.

It would be superfluous and perhaps even misleading to mention the countless cases of violation of the human rights of prisoners, of those arrested, by the police. However, who writes is a lawyer and cannot but remind himself that, since "the defence is an inviolable right" (Art. 24, paragraph 2 of the Constitution), "the lawyer has the function of guaranteeing the citizen the effective protection of rights" (Art 2 paragraph 2 of Law 247/2012 on the legal system): it is no coincidence that, in implementation of these principles, by becoming a lawyer, one swears to commit oneself "to observe with loyalty, honour and diligence the duties of the profession of lawyer for the purposes of justice and to protect the client in the forms and according to the principles of our legal system" (art. 8 Law 247/2012).

Well, since "punishment can never consist in treatment contrary to the sense of humanity" (Article 27, paragraph 3 of the Constitution), it is absolutely intolerable, for any lawyer, what happened to the young American citizen, although allegedly guilty of a murder that outrages and "cries revenge". But revenge, in a state governed by the rule of law, is only the compensation of the disvalue with a re-educational punishment of the offender, dosed by the judge on the basis of the mandatory rules of the Penal Code, combined with the need for his active repentance, including the pecuniary restoration for the damage caused. Nothing else. And, in any case, only where the culpability of the accused is established "beyond all reasonable doubt" (art. 533 of the Code of Criminal Procedure).

The high function of the defence consists precisely in this guarantee: that the rights of the accused are always and in any case protected and effectively exercised, regardless of the seriousness of his position, the atrocity of his crimes and the disgust they arouse.

The sense of the State, the legal civilisation, is exactly that.

Because "an eye for an eye" is a principle that fortunately does not belong to this age and, in order to heal one wound, it cannot be tolerated that another one is provoked! With good peace of mind of the supporters of a police regime of justice, who would like to deny civilization and praise the torture of the young American: the hope is that they will never find themselves, perhaps as innocent, in the same situation as the alleged culprit portrayed in that barracks.

Portrayed in a situation that - it is licit to think so - the Vice-brigadier Cerciello Rega himself, finding himself in the place of his fellow perpetrators of the torture in question, would never have allowed, as a man of the State he was

With the most heartfelt condolences to the Family of the victim and the most genuine closeness to the healthy part of the Carabinieri Corps, which has lost an excellent colleague, the writer expresses the most convinced support and wish for good work to the colleagues who will defend the accused, in the hope that the truth will be ascertained and the guilty - all, both the murderers and their torturers - will be punished in accordance with the Law, respecting their rights.



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