Prosecutorial Gatekeeping and Its Effects on Criminal Accountability: The Roman Prosecutor’s Office and Corruption Investigations in Italy, 1975–1994

Abstract

What explains a criminal justice system’s persistent failure to prosecute a salient and widespread criminal issue, such as systemic corruption? I argue that this results from the presence of a prosecutorial gatekeeper, namely an institution capable of raising jurisdictional issues strategically for the purpose of appropriating investigations and controlling their outcome. In this article, I examine the effects of prosecutorial gatekeeping on corruption investigations within the Italian context. I analyze the causes and effects of the Roman prosecutor’s office use of gatekeeping powers over the years from 1975 to 1994. I show that the Roman prosecutor’s office pursued prosecutorial gatekeeping in order to undermine sensitive corruption investigations involving elected officials and state agents. This resulted in the Italian criminal justice system’s protracted failure to uncover systemic political corruption. Only a suspension in the use of prosecutorial gatekeeping eventually allowed for the Mani Pulite (Clean Hands) operation to move forward unobstructed in exposing this pervasive criminal system in 1992.

Keywords:

• Criminal justice system
• corruption
• criminal justice
• comparative courts

Acknowledgements

This article contains limited material from Manzi, Lucia. “Among Equals: The Causes of Prosecutorial Effectiveness in the Italian Clean Hands Operation.” New York: Routledge, n.d. (forthcoming). Versions of this article were presented at a special workshop on the “Politics of Corruption Prosecutions” at McGill University, in February 2021, and at a special workshop on “Corruption and Democratic Representation” at the International Studies Association annual conference, in April 2021. I am thankful to the workshop participants, particularly Emily Bacchus, Tiffany Barnes, Maria Popova, Manuel Balán, Matthew M. Taylor, and Luciano Da Ros. I also owe a huge debt of gratitude to Sandra Botero, for her thorough feedback on an early version of this article. I thank Ben Denison for his encouragement to pursue the topic of this article. I am also deeply grateful to the anonymous reviewers who provided helpful comments and suggestions to improve the article.

Disclosure statement

The author reports there are no competing interests to declare.

Notes

1 In his memoir, Colombo (2010) provides ample evidence of the opposition Milanese instructing judges faced in bringing to light elected officials' involvement in the P2 lodge. Similarly, prosecutor Di Pietro, who led the Clean Hands operation, unambiguously confirmed that the latter faced political obstacles from its beginning and regardless of the changes in the government coalition that followed the collapse of traditional political parties. Even when new political forces, like Berlusconi's political party, rose to political relevance with the 1994 election, the Clean Hands prosecutorial teams faced consistent, if not increasing, opposition from the governing coalition (Interview with former prosecutor Antonio Di Pietro, phone, July 30th, 2017).

2 Italian Constitution, art. 104. This institutional design makes the Italian High Council among the strongest institutions of such kind, according to Garoupa and Ginsburg's (2009) classification.

3 Candidates can either be legal scholars or legal counsel who have been working as attorneys for at least “fifteen years,” Italian Constitution, art. 104.

4 Political parties often developed informal channels of influence, especially illicit ones, to try and establish collusive relationships with key judicial actors within this gatekeeping institution. Roman judge Claudio Vitalone, for instance, was well-known to use any means possible, including unethical and illicit ones, to sway legal proceedings in favor of his political patron, Christian Democratic senator Giulio Andreotti (Della Porta 2001: 8).

5 This highlights the role of elected Council members and politically appointed Council members in choosing chief prosecutors. The Council also includes, by law, the President of the Republic, as its head, and the chief prosecutor at the Roman Court of Appeals (Italian Constitution, article 104).

6 De Matteo was the last Roman chief prosecutor appointed by a majority of higher court judges sitting on the Council before newly elected members could take office in 1976 (Fracanzani 2014: 145).

7 Whether Boschi can actually be considered an outsider is questionable. Judicial professionals often considered working for the Minister of Justice as a sign of proximity to conservative political forces.

8 This did not spare Boschi's appointment from partisan fights. For instance, MD members asked for some time to vet the candidates for the Roman office via further questioning. However, the Council refused to allow such opportunity (Nese 1984).

9 Corriere della Sera, “Per Gallucci Critiche e Riconoscimenti dei Magistrati Romani.” November 19th, 1980.

10 Ibid.

11 Ne., M. 1987. “Delle Chiaie-Infelisi, il Caso Finisce al CSM.” Corriere della Sera, April 6th.

12 Giudiceandrea adopted new technologies, such as computerized random assignment, to distribute work among prosecutors, therefore weakening his control over his subordinates (D'Avanzo 1992).

13 1990. “A Roma I Documenti di Gladio.” La Repubblica, November 14th.

14 1990. “'Il Super Pool Necessario alle Indagini'.” La Repubblica, December 21st.

15 Noticeably, he was the only one to sign the document with the dismissal, a clear sign that the prosecutors in his team disagreed with his decision (Scottoni 1992).

16 “Gli Avvocati Romani Solidali con Coiro.” La Repubblica, June 12th, 1996.

17 In Italy, instructing judges used to perform similar functions as prosecutors. More specifically, they supervised investigations and contributed to assembling the evidence that the prosecution would use at trial to make its case.

18 1980. “Per Gallucci Critiche e Riconoscimenti dei Magistrati Romani.” Corriere della Sera, November 19th.

19 The comment sounds odd, given Italy's parliamentary system and the designation of the prime minister (commonly called “premier” in Italian political jargon) as the head of the executive branch. At the same time, the President of the Republic is the official head of state. The judge's comment was intended to emphasize the Milanese judges' presumed self-importance and inappropriateness in interfering with matters outside their institutional purview.

20 M., D. 1996. “Gelli e la P2, Capitolo Chiuso.” La Repubblica, November 22nd.

21 Colombo 2010, 101, author’s translation.

22 1992. “Sulle Mazzette Romane Non Deve Indagare Di Pietro.” La Repubblica, September 29th.

23 The Enimont case represented a relevant portion of the Mani Pulite investigation, involving politicians from all political parties and a multi-billion merger between a publicly-owned company, Montedison, and the private company Eni (Barbacetto, Gomez and Travaglio 2012: 177).

24 Interview with former prosecutor Antonio Di Pietro, phone, July 30th, 2017.

25 Interview with former prosecutor Antonio Di Pietro, phone, July 30th, 2017.

26 Interview with former prosecutor Antonio Di Pietro, phone, July 30th, 2017.

27 Interview with Mani Pulite prosecutor, phone, April 24th, 2016.

28 Bettino Craxi, national secretary of the Italian Socialist Party, testimony at trial, December 17th, 1993. The testimony's recording is accessible at this website: http://www.radioradicale.it/scheda/294694/processo-cusani-il-pubblico-ministero-di-pietro-interroga-bettino-craxi