Giusi Bartolozzi, who is Nordio's loyal 'shadow minister' of justice?

And Meloni? And Bartolozzi? Indeed, because in the request from the Tribunal of Ministers to the Chamber of Deputies for criminal proceedings against Ministers Nordio and Piantedosi and Undersecretary to the Presidency of the Council of Ministers Mantovano , two notable absentees are the Prime Minister and the Chief of Staff of the Ministry of Justice. The excerpt from Meloni 's position leaves one quite perplexed. For the judges, " the level of assumption of political responsibility [is] distinct and governed by principles different from those specific to the attribution of criminal responsibility."

Very true, because not everything that is politically inappropriate automatically becomes a crime, and criminal liability is always personal, never objective. In this specific case, however, the two levels are closely connected because the Prime Minister, according to art. 95 of the Constitution, " directs the general policy of the Government and is responsible for it. He maintains the unity of political and administrative direction, promoting and coordinating the activities of the ministers." The fact that no formal document exists that establishes the Prime Minister's personal involvement in the Almasri affair ignores this role of political leadership, honestly claimed by Meloni ; this is even more true considering that one can be held criminally liable not only for what one has done but also for what one has omitted to do ( art. 40 of the Criminal Code ). In short, contrary to what the judges believe, given his institutional role, the Prime Minister is presumed to have knowledge, not ignorance. Therefore, not only could he not have been unaware, but, having done so, he did nothing to prevent the ministers' decision.

If we then add to all this that authorization is being requested to proceed against Undersecretary Mantovano, who is delegated for security by the Prime Minister, and not the Prime Minister, who granted the delegation, it should be assumed that Mantovano acted on his own initiative. This, frankly, is unsustainable. But even more perplexing is the Prosecutor's Office's decision not to request authorization to proceed against Bartolozzi . Current legislation, in fact, provides for criminal proceedings not only against ministers accused of committing crimes in the exercise of their duties, but also against third parties who, despite not being ministers or parliamentarians, are nevertheless involved in the alleged crime. Indeed, " if the proceedings concern a crime committed by multiple individuals in collusion," the Chamber from which authorization is requested must indicate which of these individuals, "even if they are not Ministers or Members of Parliament," can be prosecuted ( Article 4, paragraph 2, Law 219/1989 ) because, unlike the other defendants, they did not "act to protect a constitutionally relevant State interest or to pursue a preeminent public interest" (Article 9.3 of Constitutional Law 1/1989). In other words, when the Chamber is called upon to evaluate the position of multiple individuals involved in the same alleged crime, whether they are ministers or not, it can distinguish between those who acted in the name of so-called reasons of State and those who did not.

All of this, however, presupposes that the Chamber be able to make this distinction, and therefore that the request for authorization to proceed formulated by the Tribunal of Ministers involves all parties involved in the alleged criminal case. There are numerous precedents for this (see, for example, the request for authorization to proceed formulated against the then Minister of Agricultural Policies, Alemanno , as well as Callisto Tanzi and Romano Bernardoni for the alleged crime of illegal political party financing). However, this is not the case here, given that Bartolozzi 's position —assuming, of course, that she was deemed, as indeed it appears, to be involved in the matter—seems to have been separate from that of the other ministers and the undersecretary. The consequence would be that the Rome Public Prosecutor's Office could proceed criminally against Bartolozzi without requesting authorization from the Chamber of Deputies, thus effectively bypassing it.

Given that the absolute majority of the Chamber of Deputies will almost certainly deny authorization to proceed against Nordio, Piantedosi , and Mantovano by secret ballot, the risk—not so remote given recent statements—would be that the current Chief of Staff could be the only one prosecuted, and possibly convicted, in the Almasri affair, with obvious—and even in this case already not so quietly mentioned—inevitable political consequences for the Government. The exclusion of Bartolozzi from the request for authorization to proceed, simply because she is not a member of the Government, is therefore, in my opinion, illegitimate. Bartolozzi herself could react against it in court, should she indeed be brought to trial. But the Chamber of Deputies itself could react: first of all, in the Committee for Authorizations to Proceed, which could ask the Tribunal of Ministers to explain Bartolozzi's failure to request authorization; then, raising a conflict of powers with the Tribunal of Ministers, since the latter, by omitting this request, prevented it from exercising the prerogatives provided for by the Constitution.

There are no specific precedents on this point, but on similar occasions, when the Public Prosecutor's Office took action against ministers without seeking parliamentary authorization, believing that they had committed crimes in a personal capacity and not in the exercise of their functions, the Constitutional Court has affirmed that the competent Chamber has the right: both to be informed in order to assess whether the crime under investigation is ministerial or not; and, if it does not agree with the negative conclusion of the Tribunal of Ministers, to raise a conflict of jurisdiction against the judges before the Constitutional Court, for having been impaired, as a result of the judicial decision, of the power recognized to it to assess whether the minister and the other individuals involved acted in the name of a higher public interest (judgments nos. 241/2009 Matteoli case , 87/2012 Ruby-Berlusconi case, 88/2012 Mastella case ). I don't know if the Court still has time to correct course, but I'm certain that, if it doesn't, the prospect of yet another conflict, this time of a constitutional nature, between the judiciary and politics would be probable and indeed, in a certain sense, inevitable.

FROM

Salvatore Curreri