Salvini “acquitted” by the Senate junta for the Open Arms case. It was foreseeable: the media-judicial plots to the detriment of politicians (and not only) work when they are hidden, otherwise they push to at least a fairness of the facade. We take up the case of the Gregoretti ship, introduced in the Saturday article, explaining the mechanisms that are not always rational for judicial decisions. Technically, the most likely outcome of the preliminary hearing set in Catania in October is the indictment: the order of the court of ministers weighs, and at that time the judge will not have to determine whether the accusation is founded or not, but whether the process is necessary to ascertain this. Can the doubts about the nature of the acts of the former minister, revealed by the contradictions of the parliamentary votes and by the same approach of the Etna prosecutor’s office (which asked for the archiving), lead to a different outcome? The unquestionability of the political function is a peaceful principle, unless – extending a limit elaborated with reference to the immunity from the civil jurisdiction of foreign states for acts of imperiality – it is not a matter of crimes against humanity, a situation certainly to be excluded in the case in point. The court of ministers had qualified Salvini’s conduct not as a political act, but as an administrative act with a political purpose (to obtain the relocation of migrants to other European countries), recalling the notion of a political act established by the jurisprudence of the Council of State and the criterion the unsuitability to infringe the rights of individuals.
This motivation is weak, both because this criterion is not decisive (if it were the theory of the unquestionability of political acts it would be useless, since an act without harmful effects cannot be a source of responsibility), and because the definition used in the administrative process it is not transferable to a criminal court. On the other hand, the intent to obtain a redistribution of migrants at European level, rather than a simple motive, appears to be the cause of the offending action, which was part of the government program, as set not only in the famous M5S-Lega contract , but also in numerous statements by the Prime Minister in the institutional forum.
WHAT COUNT SAID
In the programmatic declarations to the Senate on June 5, 2018, he had hoped in Europe for “the overcoming of the Dublin Regulation in order to obtain effective compliance with the principle of fair sharing of responsibilities and to implement automatic systems for the mandatory relocation of asylum seekers”. At the Senate session on 12 September 2018 he stated: “The Italian government has reiterated, since the start of the Diciotti case, its belief that it should necessarily be addressed in line with the principles of solidarity and sharing between the countries of the European Union on the management of migration flows “. This approach also emerges in the statements to the Senate on 16 October 2018, in view of the European Council of 18 October; as well as on 11 December 2018, in view of the European Council of 13-14 December. It is true that there are no formal acts with which Conte adhered to the initiatives of his Minister in the Gregoretti case, but they were not necessary, since it was proven that he was aware of it (see for example the news agency of 9 January 2020, in which, when asked how he would have voted in the Gregoretti case if he had been a parliamentarian, he declared “it is difficult to answer because being President of the Council I cannot dissociate myself from a direct knowledge of the file, I cannot depersonalize myself”). Pursuant to art. 95 of the Constitution, the President of the Council of Ministers directs the general policy of the Government and is responsible for it, promotes and coordinates the activity of the Ministers.
THE COMMON LINE
It follows that, if a Minister makes choices that are abstractly part of the Government program and of which the President of the Council is informed, without showing his opposition, these choices are also attributable to him and express the Government’s line. This is confirmed by the statements to the media of the other Ministers. So Bonafede on July 30, 2019: “The ship is docked at the port, there is dialogue between the ministries of Infrastructure, the Interior and Defense, the position of the Government is always the same: the rights are safeguarded, the people who had to they go down, they go down, their health conditions are monitored, but the whole European problem has to deal with the immigration problem ». So Di Maio on July 31, 2019: “For me, Italy cannot bear new arrivals of migrants, those migrants must go to Europe, but don’t treat our soldiers on that ship as pirates. Full respect for law enforcement agencies ». Therefore, the conditions seem to exist to recognize that sort of “immunity” from the criminal law that belongs to political activity. Alternatively, it could be considered that the decision to delay the landing authorization was justified for reasons of public order or security, as such not punishable. However, the Senate’s authorization to proceed impedes both solutions, having ruled out that “the investigated acted for the protection of a constitutionally relevant interest or for a pre-eminent public interest in the exercise of the function of government”.
The charges brought against him
If the judge were to consider formally precluded an examination of these matters, the subject of the trial would be reduced to the fact as such: Salvini is accused of having ordered the competent Ministerial Department not to assign a safe harbor to the Gregoretti ship from July 27 (date of the request) to 31 July 2019 (date of authorization), thus blocking the disembarkation procedure for migrants. It is not intended to discuss here whether the absence of landing authorization led to the material deprivation of liberty for the migrants who were on board the ship, but to the legal construction that underlies the indictment: the kidnapping would have been carried out through an omission, i.e. failure to indicate the POS. Except in our legal system an omission is criminally relevant only in two cases: 1) when the law punishes it as such; 2) when the law provides for an obligation to prevent the criminal event. Neither case occurs in the present case. The violation of the obligation to assign the safe harbor (if there was one) could lead to the accusation of omission of official documents, not to that of kidnapping. The different conclusion of the court of ministers is the result of a historical defect in criminal jurisprudence, which judges call an extensive interpretation, but which in reality often borders on the creation of new criminal figures. This is not the time to investigate the issue, which creates no less problems than legislative justicialism. Suffice it to say that, reasoning with the same method, if Salvini kidnapped 131 non-EU citizens, Conte kidnapped 60 million Italians. And both boasted about it.