Solidarity on trial: a judicial monstrosity

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The closing instalment of this citizen investigation sums up an unfinished story, as Italy and the accused wait to hear the judicial explanation of a jaw-droppingly ferocious set of criminal sentences passed on eighteen asylum welcome workers by a court in Calabria. Giovanna Procacci explains why this case raises deep concerns about Italian justice and, more widely, for our democracy in a European Union deeply challenged by the humanitarian refugee crisis.

The Prosecutor’s final indictment in the Locri trial opened a vast interpretative gulf between the image of the little Calabrian town of Riace as a celebrated and innovative experiment in the creation of asylum welcome services, and the same town viewed as a criminal conspiracy to misappropriate public funds for the purposes of building a clientelist electoral base.

In the closing court session on 25 September, defence lawyers for Riace’s former mayor Domenico (“Mimmo”) Lucano, Andrea Daqua and Giuliano Pisapia, tried to build a bridge back over this gulf, starting from an issue that is crucial for a criminal trial, the subjective aspect: who is the accused? Who is Domenico Lucano?

Lucano is not just a man with an unblemished personal record, like all his co-defendants; he is also a man who did not take a penny for himself and who lives in poverty, having devoted his life to the cause of the most vulnerable. The former bishop of Locri, Giancarlo Bregantini, came to court to testify to Lucano’s commitment and moral engagement, which was, he said, the most dedicated practice of evangelical pastoral care he had ever seen. No evidence of operational mistakes could negate the high ideals and ethical character of the goals Lucano was trying to achieve. These goals were morally significant, and Lucano concretely helped the country to overcome a national refugee  emergency in a manner consistent with the principle of solidarity which is defined as a duty by the Italian Constitution.

One also needs to remember that Lucano was a local mayor called on to help respond to an urgent crisis, forced to operate under pressures which should not be ignored when afterwards evaluating his actions and possible failings.

The regulation of welcome services in Italy is a complicated puzzle, subject to improvised and fragmentary rules and conspicuously liable to sudden changes of policy according to momentary conjuncture and political convenience. A village mayor might make some mistakes, but, as his lawyer Pisapia (himself a former mayor of Milan) remarked, “administrative mistakes are not the same thing as criminal acts”.

State institutions themselves operated at that time under emergency pressure, and transferred to the Riace welcome services a burden of responsibility and decisions which they themselves had been unable to shoulder. Riace suffered because of the absence or failure of action by the institutions, and was itself obliged to act in their place. This is what the Council of State acknowledged while ruling in favour of Lucano that the closure of the Riace services had been an unlawful decision by the State. This was why Lucano, commenting on the trial, reserved a specific reproach for the treachery of the local officials who first exploited his loyal dedication and goodwill, then exploited his difficulties in order to smear and demonize him.

A shocking first instance sentence

Only a few days after the defence evidence, on 30 September, the Locri Court pronounced its first-instance verdicts and sentences. If the prosecutor’s demand for a 7 years and 11 months sentence for Lucano had been shocking enough, the court’s judgement created much deeper shock and real bewilderment.

The court accepted in full the main allegations of the prosecution, including the allegation of criminal association, and totally dismissed the contrary findings of other courts, even including the Supreme Court that had ruled in 2019 in Lucano’s favour.

The Locri judges ruled that Lucano was the head of a criminal association, including eight other defendants, which had planned an elaborate series of crimes: frauds, embezzlements, forgeries, abuses – all of these offences being aggravated by being found to have formed part of a conspiratorial project.

Some of the charges in the prosecutor’s original indictment, were dropped, including the serious charge of extortion dropped after a so-called super-witness retracted his allegations against Lucano under cross-examination.

Nevertheless, Lucano’s final sentence almost doubled the prosecutor’s demand, something that is very unusual indeed. No extenuating circumstances were considered, despite all the defendants’ previous clean records. Overall, 18 people who had worked in the widely praised Riace welcoming experiment were sentenced to more than 80 years of prison. The judges gave Lucano a prison sentence of 13 years and two months, together with a five year ban from public offices and an order to reimburse more than 700,000 euros to the state. No account was taken of the ethical purposes of his action, nor of the emergency situation in which he had had to act.

It was a monstrous and completely unexpected sentence, which Lucano’s lawyers immediately  described as “totally inconsistent with the evidence presented to the court”. The legal basis of the sentence is still not known, the judges having up to a further 90 days before they are required to publish it. Meanwhile the defence lawyers have already announced that they will take the case to the Reggio Calabria court of appeal, because, in  Giuliano Pisapia’s words, “a 13-year sentence for a person who certainly has not acted out of self-interest, but only because he considered welcoming migrants  the right thing to do, is beyond the limits of judicial normality.”

There has been widespread and forceful expression of outrage in Italian public opinion, with strong statements by jurists, lawyers, intellectuals, artists, journalists and the wide sector of voluntary action, including associations, NGOs and ordinary citizens. As Francesco Merlo wrote in La Repubblica the day after the final ruling:

“the Locri sentence is so cruelly excessive as to immediately make one wonder if it can even be serious”.

Cases of murder, not to speak of ‘ndrangheta gang crimes, have received lighter sentences. Yet this was the case of a poor man who dedicated his life to welcoming others, and of a community that had made hospitality its path of revival from decline.

Exaggeration had been from the beginning a key feature of the judicial assault on Riace and Lucano. But this sentence came at the end of a trial which had confirmed that whatever errors may have been committed by the Riace services, they generated no criminal benefit in terms of personal profit. There may have been administrative irregularities, but they were not crimes.

Even the prosecution’s theory that Lucano had conspired to seek “personal political gain” was not substantiated by the evidence presented. It looks frankly hard to claim that Lucano acted with a criminal plan and not for humanitarian reasons. It is equally difficult to understand why the Court took no account of evidence that emerged during the trial, nor of the fact that other courts had ruled in favour of Lucano.

Francesco Merlo asks: “What does it mean to commit fraud, if there is no resulting gain?  All one is talking about here is untidy administration, procedural confusion”. Houses belonging to the CAS services may have been used for people hosted by the SPRAR service and vice versa, money from the workshops might have gone to the oil-press, unregistered vehicles might have been used by the welcome services, etc. The details may have been muddled, but the overall result was uncompromised, since no money was wrongfully taken out of the system. One can, if one wants, find a ‘fraud’ everywhere here: in the issue of an identity card, in the multi-ethnic kindergarten, in the school, in the job training grants, in the restaurant, in the solidarity tourism, etc. Or these all can be regarded as what they were: attempts to explore new ways of integrating a community of migrants and local people.

“We face here an excess, a surplus of punitive will, which is explainable only by the determination to impose an exemplary sentence, designed to criminalize migrant welcome”, comments the jurist Luigi Ferrajoli.

The judgement condemns the Riace system in terms already prefigured in previous discretionary decisions of the public administration. The Prefecture and the Ministry of the Interior, even before the intervention of the criminal judiciary, had “condemned” Riace because it did not conform to standard reception models. Worse, as the migration jurist Fulvio Vassallo Paleologo remarks, a parliamentary commission inquiring into welcome centres in Italy determined in 2017 that although “large sectors of the welcome system in Calabria  are infiltrated by mafias”,  “no reform of the system has never been attempted; instead, those who invented an alternative have been criminalized”. 

One is tempted to wonder here whether Lucano’s real crime was that of being honest.

Both of these experts comment that it is urgently necessary to restore a clear distinction between technical assessments conducted by administrative bodies and criminal prosecutions. Otherwise, trials as the Locri one are liable to become more and more frequent, given the complexity and the changeability of operating rules. Vassallo Paleologo says that a criminal trial of Riace and Lucano should have never have been initiated, because the municipality of Riace had  been unfairly expected to step in to cover for the  evident inability of the local State to guarantee a minimum level of reception to arriving migrants. We risk, says the writer Sandro Veronesi, normalizing the idea that a welcome system for refugees and migrants is in itself somehow a “criminal question”, a problem in terms of social marginality or public order. This would result, as happened in the case of the Locri court’s judgement, in “the assimilation of citizen and political initiatives, inspired by considerations of rationality and humanity, to criminal offenses, up to and including the outrageous charge of conspiracy”.

A senior academic and former politician, Luigi Manconi, wrote that the prosecutor’s press comments right after the sentencing contained “statements that oscillate between eccentricity and recklessness”. 

Domenico Gallo commented that:

“In the present case, the margins of sentencing discretion were exercised only in hatred of the accused. This judgement truly represents the outcome of what [the great 18^th century jurist] Cesare Beccaria  called ‘an offensive trial’, where ‘the judge becomes the enemy of the accused’.”

The relentless exorbitance and hyper-aggression of the Locri proceedings from start to finish look like the instruments of a populist, Salvinian logic, centered on the identification and warlike destruction of those identified as the people’s enemies, namely those who show pity for that other great enemy, the refugee.

By accepting the prosecution’s framework of interpretation, the judges’ verdicts and sentences fully confirm the political character of the whole Locri trial, as I identified during my previous  monitoring of the prosecution’s strategies during the trial. This practice of using political trials to criminalise solidarity and welcome is by now becoming obvious to all and is putting the resilience of our democratic societies at serious risk.

Political trials

“What is the crime? Who committed it?”, asked Piero Calamandrei in his defence of Danilo Dolci, in a famous political trial in Palermo in 1956 of a young sociologist who had been leading a protest of unemployed people at Partinico and was put on trial for instigation to disobey the law.

These are certainly crucial questions in all criminal trials, but they are especially a key to understanding what a political trial is. For the Locri Court, the crime is Riace, and the person responsible is Domenico Lucano. Yet, as the prosecutor himself concedes, Lucano used all his funds for refugee integration, not for any personal material benefit, and only acted out of his own sense of humanity. The defence lawyers claimed that the subjective aspect – who is Lucano? – should be the core consideration in the court’s deliberation, but, as we have seen, the final judgement excluded any consideration of this.

Once actions are detached from their actor, real facts blur into background. One’s impression is that the so-called crime is deemed to consist not so much in what has been done, that is to say, a set of administrative failings, but rather in the ideas that inspired the actions: the ideas of community, local development, integration between peoples, that Riace tried to put into practice.

It was these ideas that needed to be suppressed. Yet these are ideas shared by many: the idea that   in dealing with migrants we must respect human rights, international law and the constitutional principle of solidarity are not just Lucano’s personal beliefs. “What matters is to be able to locate the trial in our times”, said Calamandrei, “bringing to light the human and social meaning of this story”. Nothing demands this contextualising insight more urgently at this time than migration. Welcome systems may change and update their regulations according to the political conjuncture, may even change their entire paradigm; but values and rights endure, and retain their higher authoritative validity.

What is unacceptable is that the mutable game of policy is allowed to prevail over the order of rights and values.

In the end, a political trial always arises from some kind of symbolic coercion. “It is the world turned upside down”, wrote a former judge, Livio Pepino, right after Lucano’s arrest: a man who acted only driven from his sense of humanity and solidarity was found fitr to be treated by the  judges as a serious criminal. A political trial always brings with it some kind of reversal of sense. “How could such a reversal have happened, I do not mean of juridical sense, but of the moral sense and even of common sense?” – wondered Calamandrei. We have a duty to understand how such a reversal can have occurred, along with our duty to reinstate the norms of moral and common sense.

Political trials always present certain similar features and  risks. The Locri court’s prosecution of Riace and Lucano is no exception, nor is it now an isolated case. As I said in the first part of this report, there is a trend in our days to use the judiciary as a strategy for criminalizing activism in defence of human rights and humanitarian aid to migrants. This is occurring in several European countries and does not seem to be about to stop.

I mentioned the cases of Cédric Herrou and Pierre Alain Mannoni in France, and similar cases can be found elsewhere in the EU. As for Italy, a couple of activists, Gian Andrea Franchi (age 85) and Lorena Fornasir (age 69), who every day welcome refugees arriving from Croatia and Slovenia on a square in Trieste and offer them care for their injured feet, were accused few months ago of assisting illegal immigration. This is not to mention several trials that have been started against the NGO owners of ships conducting search and rescue missions in the Mediterranean. As part of a political strategy to criminalize solidarity and humanitarian activism, we see a whole new wave of political trials taking off around us; along with them, there come growing new political risks for our democracies.

That is why the trial and sentencing of Riace and Lucano affects us all, and should be a wake-up call for us to resist, to denounce political trials and sentences, and to demand new and different policies for   migration, for the sake of Riace and for all our sakes.

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