Last week North East Bylines published an article from the Italian national newspaper Il Manifesto by one of Italy’s leading jurists, Luigi Ferrajoli, on a disturbing and widely criticised criminal prosecution of the acclaimed asylum welcome pioneer Mimmo Lucano, the former mayor of the Calabrian village of Riace. This article appeared on the morning of a final hearing in Lucano’s appeal against his astonishing 13-year jail sentence for fraud and conspiracy. NEB previously published a four-part report by the sociologist Giovanna Procacci, who has been covering this case since 2018. Below is her report on the day’s proceedings, which heard Lucano’s defence lawyers perform a devastating demolition of the prosecution’s case. The case may prove important not only for the integrity of Italian justice under a semi-fascist government, but also for the future of humanitarian asylum policies in Europe. [CG]
Barring surprises, this should be my last report from the appeal hearing in the case against the former mayor of the commune of Riace, Mimmo Lucano and 17 of his co-workers, ongoing in the Court of Appeal in Reggio Calabria. The last scheduled hearing on September 20th was taken up by the final submissions of the ex-mayor’s lawyers, Giuliano Pisapia and Andrea Daqua, who have been defending him pro bono for several years, responding to the written verdict and sentence issued by the first-degree Court at Locri, almost two years ago. A further additional session is now scheduled for October 11th, where the appeal judges will begin deliberating on the second-degree verdict, which may or may not be made public on that day. This is expected to be then followed by an appeal to the national Supreme Court for a definitive judgement. It was stated that the public prosecutor may at this October session deliver a response to the defence’s argument
With the interventions of Lucano’s lawyers, fundamental issues of this entire case were suddenly and spectacularly reopened: the forensic debate which the Locri court, subservient to the arguments of the prosecution, had persistently evaded, ignoring serious challenges by the defence to their charges throughout the course of the trial. The flimsy, deficient logic of the prosecution case was exposed and it became once again clear that the Locri judges’ arguments were grounded on little more than speculation, pre-determined assumptions, and unsupported theories about the motives and intentions of the accused.
Focus on the personality of Lucano
Giuliano Pisapia chose to focus on the personality of Lucano, arguing that the subjective element is always fundamental in a criminal trial: it is a person who is being judged, and not just his acts. He began by reading from the letter that Lucano wrote to the judges:
“Like all human beings, I have made mistakes, but I have always acted with the aim and desire to help the weakest and contribute to the welcome and integration of children, women and men fleeing from hunger, war and torture.”
Lucano wrote that he had lived through years of great bitterness on account not only and not so much of the restriction of his personal freedom as of the unjust campaign of denigration directed at him and the Riace experiment. This, he says, is why he continues to dedicate himself, as an individual private citizen, to the reopening and management of the Global Village of Riace, which continues to welcome the vulnerable:
“Therefore, what I consider the mission of my life has not been halted by the loss of public office and state finance – in contrast to the behaviour of criminal organisations!”.
Here, Pisapia comments, “I’m not claiming that Lucano is a saint. I am just interested in knowing who this person is who is on trial here today and who has been given this exorbitantly excessive sentence.” The first-instance court had chosen in its verdict to deliberately ignore the values that inspired all Lucano’s public action and the idealistic motives of his project. This was the function of the moral condemnations, open contempt and downright insults with which the 900-page judgement is crammed, and which have scandalised many jurists who find here a gross breach of judicial impartiality. As Luigi Ferrajoli has commented, these adversarial remarks constitute a significant component of the judgement: personal denigration of Lucano functions here as part of a strategy of suspicion towards anyone who acts in the name of values, because behind such claims there can only be some ulterior motive, some pursuit of personal advantage. Thus in Lucano’s case, it was claimed that he was driven by economic greed. Yet from the trial documents, it emerges that Lucano did not have a penny in his bank account, sharing with others whatever income that he received, including the prizes he was awarded, while living in conditions of poverty. “Falcone [the assassinated Mafia prosecutor] said one should follow the money. Please follow Lucano’s money: you will not find any.”
So, when it became impossible to prove an economic gain, it was instead argued that Lucano acted for political advantage, to create a patronage system that would guarantee him a long-term political career. But how can one claim that he sought political advancement when, as is well known, Lucano stubbornly refused to run for a virtually guaranteed seat in the European Parliament? “This should already be enough to put a stop to this trial”, Pisapia commented, given the absence of evidence either of malicious intent or the conscious pursuit of gain – two key requirements for the existence of a crime.
Lucano is a person who has always prioritised the good of others. As Archbishop Bregantini told the Court in Locri, Lucano is someone who anticipated the spirit of Pope Francis’s encyclical “Fratelli tutti”. Of course, even those who act with good intentions can end up breaking rules, but this first needs to be demonstrated, and does not in itself disprove virtuous intent.
If the welcome system in Riace grew exponentially (and may as a result have committed some administrative errors), this was because Riace was able to assist other communities struggling to deal with a national problem. To deny the value of this contribution, redescribing the welcome system in Riace as a scheme of criminal greed, and insinuating that Lucano’s poverty is a cunning lie, are the particular methods of what Professor Ferrajoli (following Beccaria) terms an “offensive trial”, a trial where the judge considers themself the enemy of the criminal, and instead of looking for certain proof, seeks only to confirm an already presumed guilt.
Pisapia spoke briefly about other charges against Lucano, in particular relating to the so-called “overstaying” migrants, the reporting and documentation of the Riace welcome organisations, and the alleged issuing of a false identity card. On none of these charges, Pisapia said, had the trial demonstrated Lucano’s personal responsibility; accordingly, he called for Lucano’s full acquittal.
Pisapia said, addressing the judges directly: “Your verdict will be important because, especially in a period when the situation of migrants is particularly difficult and complicated, a network of many local schemes like Riace could help solve many problems and avoid tragic situations which a country like ours should not just passively observe from afar, but deal with.” He concluded with a comment, evidently drawn from his experience as a lawyer and politician (Giuliano Pisapia is an MEP and was mayor of Milan from 2011 to 2016):
“When politics enters the courtroom, justice goes out of the window. For me this is something one cannot get away from: justice is one thing and politics is another. They should each stick to their own role and neither should take over the role of the other.”
Lucano’s other lawyer Andrea Daqua then took over from his colleague to examine in detail the charges on which the first-degree court had sentenced Lucano to more than thirteen years of imprisonment. Itemising the verdict’s weaknesses and contradictions, he began by noting the discrepancies between different administrative reports on Riace: the first, strongly negative report by the Prefecture, which came into the hands of the right wing newspaper Il Giornale even before it was seen by the mayor, followed by a second report, requested by Lucano himself, which expressed a positive opinion of the welcome service, a report which the Prefect then chose to conceal for nearly a year. Then there was the joint inspection by the Prefecture and the national asylum welcome service Sprar [Protection System for Asylum seekers and Refugees], conducted by Sergio Troilo and Enza Papa, designed to discredit Riace and leading to the immediate closure of Riace’s Sprar service, against which Lucano successfully appealed, an outcome confirmed by the Council of State, which called Riace a “commendable model” and ordered that the Sprar service should be reopened. But this order was not implemented: the Sprar was closed, and has remained closed.
Daqua describes the first-instance court judgement as the product of a ‘one-way’ investigation which, instead of first establishing the facts, began by eliminating any evidence inconsistent with a pre-existing set of allegations drawn from the negative inspection findings. an example of this was a wiretap establishing Lucano’s innocence which the Locri court refused to take into consideration, and which appeal judges have subsequently allowed to be admitted as evidence by ordering the reopening of the judicial investigation. In that wiretap, Inspector Del Giglio admitted to Lucano that “the state does not want to hear the story of the reality of Riace [because] integration is a notion which the state has now discarded”, and confessed that he personally believed that “Riace, leaving aside its administrative mistakes and irregularities, achieved something which is evidently still unique in the entire country. You have to defend it.”
Instead, the Court of Locri doubled down on its allegations, distorted the facts, ignored documents produced by the defence and the contributions of its expert witnesses, misrepresented the witness testimonies, distorted the content of the wiretaps, adopting a tone and language which exudes an obfuscatory and denigratory miasma. Daqua cited many examples of the distortion of wiretap evidence by manipulative and tendentious handling: non-existent sentences added to the transcript, mistranscriptions that change the meaning of words, warped interpretations created to confirm pre-established theories.
An example is the environmental wiretap of 07/10/2017 in which Lucano and his colleague Capone discuss the village oil press; the court builds its case on Lucano’s alleged role in asking for “false statements which they needed to agree on to cover those expenditures”, and based this on his recorded words “It’s for the refugees, you have to tell them”. Unfortunately for this theory, the words “you have to tell them” do not occur in the audio recording. They occur in the criminal police transcript that the prosecution used in the trial but are absent in the official transcript produced by the court’s own expert.
This reveals something very serious: the judges doubled down on the prosecution’s theories, to the extent of contradicting the court’s own expert, and abandoning their impartiality. It is even more serious because this very wiretap plays a key role in the Locri judgement: according to the court, Lucano, not yet knowing that he was being wiretapped, was actively fabricating misinformation about the oil press, intended to conceal the pursuit of his own economic gain. This false interpretation becomes a turning point in the case, because in order to confer the status of a decisive proof on the transcription, the judgement excludes from consideration all other wiretap evidence indicating that the mill actually benefits refugees: the judges assert all this evidence to have been fabricated by the accused because it came after the date when wiretapping would be known to have been taking place. The corrupt wiretape evidence thus became the proof of a falsification that Lucano had cleverly engineered… and not the product of a prior misconstruction that exists only in the mind of the court.
In reality, Daqua went on to argue, the oil press was an initiative consistent with the objectives and spirit of the Sprar service, which authorises special integration projects, and there is no evidence that spending on the oil press involved personal misappropriation. The oil press is at the heart of the charges of diversion of public funds, but the crime of diversion requires there to have been improper use of the diverted funds and there is no proof of improper operation of the mill. Just as there is no such evidence of improper spending on houses, which supposedly forms part of the alleged embezzlement, actually the defence provided precise documentation showing that they were used for the reception of migrants.
All the funding received for the Riace projects flowed into a single current account – public, private, even reimbursements of previous projects. Since the court worked from evidence at the level of cash flow transactions , it had difficulty in distinguishing which funding sources were being used in each case. Establishing this was the contribution of the consultant Madaffari, who supplied the Riace’s commune’s accounting ledger, where the sources of funding were recorded. But the court completely ignored this information from the defence.
The charge of criminal conspiracy
As for the most serious charge, of criminal conspiracy, in which Lucano was described by the prosecution as the undisputed boss, Daqua cites from the trial evidence of the prosecution’s own witnesses which excludes the possibility of a crime of association. The judge, Fulvio Accurso repeatedly asked the financial police officer Colonel Sportelli to clarify whether there was a unified organisation, coordinating ties, or an awareness of such connections; Sportelli always answered in the negative. Enza Papa commented that the Sprar services in Riace were hampered by the fragmentation of the system, with different civil associations providing respective welcome services that didn’t communicate with each other, each one going its own way and with no unifying organization. In short, there were none of the necessary conditions in place for the existence of a criminal association. Here, characteristically, the court resorted to a wiretap which talked about the need for coordination, using this as proof that coordination existed, something which prosecution witnesses themselves denied. All of this apart from the fact that what the wiretapped conversation was talking about was functional, not criminal association. Once again, an intolerable twisting of the facts.
Daqua concluded by declaring the Locri judgement “an unjust and incorrect verdict on all items of the charges”. For this reason, like Pisapia, he called for Lucano’s acquittal on all charges in the first-instance judgement. And he urged the judges: “You have the opportunity to correct a massive miscarriage of justice”.
Will they do it?
Translated by Colin Gordon