MUGGIA: IN THE NAME OF CONCRETE
Article published on August 13, 2011.
The town of Muggia, south to Trieste.
How the Italian judiciary made an example of the activists who stand for Trieste’s environment.
Judged four times by the Italian Court of Cassation for the same appeal. Two further hearings already set. Even, with a decision that the Cassation itself considered final and “irrevocable” since the very first hearing. What are we talking about?
This is the story of a trial revolving on an illegal building in Muggia.
Except it wasn’t the builder to stand trial. It was the environmentalist who reported it.
Indeed a story worth telling. One with grotesque developments, indeed, but also something more. This story is the perfect sum of present-day Italy: a decadent Country, with corrupt institutions, often reduced to guarding a corrupt system of power.
A Country for the Mafias of concrete to dictate law, undisturbed, repressing all oppositions, because it is them to support the “system”.
Legal proceeding No. 2685/03: “condemn the bad environmentalist!”
I addressed a written, extensive complaint to the Municipality of Muggia (Province of Trieste). The document was about irregularities with the PRPC (Piano Regolatore Particolareggiato Comunale – detailed master plan of the city) submit by company M.C.C. srl to build a mall.
I made sure that my complaint was ready before the City Council’s vote on M.C.C.’s initative, expecting it to be taken into account.
Except the Municipal offices, led by architect Lorenzo Gasperini, who was also Muggia’s Mayor and Assessor of city planning, didn’t forward the complaint to the City Counselors.
So, the City Council unanimously approved the PRPC, confident of its compliance with the law, certified also by the Municipality’s Commissione Edilizia (Board of works). A Board led, once again, by Assessor -Mayor – architect Gasperini who, along with others in the Board, given his professional competences, should have recognized the irregularity of the project.
I addressed a not about the case also to the Republic’s Prosecution Office, chaired by Nicola Maria Pace, and to the Amministrazione Regionale ed agli Ordini professionali (Regional Administration of professional orders). Both had full authority over the case.
The Prosecution (Prosecutor Pietro Montrone) investigated rather abnormally. Mr. Montrone simply asked the investigated party (Muggia’s City Council) if the crime was actually committed.
Of course, the City Council denied to ever commit a crime. So the Prosecution sought the dismissal of the investigation in record time. Indeed, from my complaint to the request it only took two months.
My opposition to the dismissal never made it to the G.I.P. (giudice per le indagini preliminari – justice of the preliminary hearing). Why? Because it ended up in the wrong case file (!).
The Prosecutor’s manipulation of procedural documents proved decisive for the rest of the case. The G.I.P. closed both proceedings: one because of the (artificial) lack of oppositions, the other because the opposition was… about another proceeding.
Adding insult to injury, despite the documentation returning to the Public Prosecutor, along with a further document with which the G.I.P. pointed out that the opposition was irrelevant, the Public Prosecutor didn’t bother to place the opposition in its correct file. Even if doing so would have prevented an illegitimate dismissal.
The day before the proceeding’s abnormal dismissal, Mayor Gasperini and the whole Commissione Edilizia (Board of works) sued me. Back-dating the complaint to fifteen days before. They treated my note to the Region and to the Professional Orders as defamation.
The consequent lawsuit was assigned to the same Public Prosecutor as before and, through him, to the same officer of the criminal investigation department. Right to the people whose omissions caused the dismissal of my proceedings regarding the illegal building, allowing the criminal complaint against me.
They were investigating on their own, previous investigations.
So, I was charged with defamation against the members of a political and administrative body. An accusation worsened by the alleged including the attribution of a crime (illegal building) and committed with alleged malice (I sent the complaint to other bodies).
However, evidences pointed out that mine wasn’t malice, because the bodies I addressed have specific competences in the matter, and the illegal building was indeed approved.
With a further, unmistakable abnormality, I was committed for trial by a Giudice di Pace (Justice of the Peace) instead of by the competent Tribunale monocratico (Court of First Instance – sole judge).
This step deprived me of the guarantee of preliminary hearings before both a GIP (Giudice per le Indagini Preliminari – Judge for Preliminary Investigations) and a GUP (Giudice dell’Udienza Preliminare – Judge of the Preliminary Hearing).
The proceeding was assigned to Justice of the Peace Umberto Ercolessi. He did not refrain from that despite his incompatibility.
Indeed, he had run for Mayor in the province of Trieste (1995, Municipality of Sgonico – Zgonik). And he was a candidate in the same party as Mayor Gasperini and his administration. And, again, it is still the same formation that sued me.
The hearing
The Prosecutor’s Office assigned the role of Public Prosecutor to the nucleus of Criminal Police of the City of Trieste. And they in turn are employees of Mayor Dipiazza – a friend and political godfather of Gasperini’s. So they successfully sneaked around the truth of the fact – an illegal building – that was the origin, the reason, and the legitimation of my original complaint.
This is why the following discussions were superficial – and against the law. The Court only heard the prosecution’s witnesses. The complainants perjured to have me convicted. My final statement, released during the last hearing, is not recorded in the minutes.
So, this is the story of how I was deprived of all effective means of defense
Ultimately I was convicted by an incompetent and incompatible authority to pay a fee, to compensate the complainants, and to pay all Court’s fees. Total amount: about Eur. 27,000.
The complainants did immediately make my conviction public in order to delegitimize me and my environmental organization.
In the meantime I impugned the conviction. The proceeding was assigned to a single judge (Giudice Monocratico) instead of to a Court formation (three judges). One more serious violation of my rights.
The judge of second instance confirmed the judgment of first instance. This regardless to evidence showing that the crime (illegal building) had indeed been committed. Logically, since this was the base of defamation charges, I should have been acquitted.
Instead, the judge further deprive me of my defensive rights. He even ruled on a different – actually opposite – charge respect to the one in the complaint.
This is then I lodged an appeal before the Italian Court of Cassation (the third and last instance Court in the Italian legal system).
My final appeal was ultimately rejected. But only after well over six hearings.
The grounds? Despite my defensive rights being restricted, my guild was well demonstrated…
Only, this “restriction” of my defensive rights is rather impressive:
Preliminary investigations (Indagini preliminari)
• Public Prosecutor: manipulates the acts within the case file: a decisive action as for my commitment for trial.
First instance of judgment (Giudizio di primo grado)
• Trial of 1st instance: it is assigned to a magistrate that is both incompetent (it had to be assigned to an judge, not to a justice) and incompatible as he had been a candidate of the same political party as the complainants;
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• During the hearing: the Public Prosecutor ends up being… part of Trieste’s local police (Polizia Giudiziaria dei Vigili Urbani). In other words: someone working for the Mayor, Mr. Dipiazza. And guess what? He is friends with Muggia’s Mayor: Gasperini, the complainant.
• Follows the rejection of my witnesses, who were necessary to my defense.
• And then… a collective perjury (which due to its nature of collegiality can be regarded to as constitution of a criminal association) committed by the complainants against me.
• The hearing’s hand-written minutes lacks fundamental declarations that I had expressed when I was under question before the justice (and the hearing was not recorded).
• Court: rejects – without providing motivations and despite the prosecuted person demanding that – the evidence of the truth of the questioned fact, illegal building.
Second instance of judgment (Giudizio di secondo grado)
• Judge of second instance charged with my appeal (Angela Gianelli): rejects the exception of her incompetence without providing a motivation (the incompetence of the justice in charge of the first instance extended to the judge in charge of the second instance, since I should have been judged by a college, not by a sole judge).
• Again judge Gianelli: rejects my request to forward the case to the Italian Constitutional Court. I requested this because of the already severe violations of my defense rights, violating the right to a fair trial. The judge refused it, claiming that:
“reducing the accused person’s guarantees was necessary to grant the proceeding’s speed…”,
• Both judge Gianelli and the Prosecution Office: refusal to enforce the (mandatory) criminal prosecution following from the complaint for perjury against me, despite it being committed by seven complainants. Prosecuting them would have allowed the dismissal of the case against me.
• And the judge certifies the evidences falsely. Judge Gianelli attested that I myself demonstrated to have committed the crime (defamation) in my own documents. Things were the other way around: I proved the illegal building. Consequently, I proved the viciousness of the accusations against me. I was charged for allegedly insulting public administrators by declaring that they had approved an illegal building. And they did.
• Not to mention: omission of important evidences. I presented them in the final hearing. Furthermore, I requested new terms to lodge a statement, and the judge refused it, issuing her judgment instead.
Third instance of judgment (Giudizio di terzo grado)
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• Italian Court of Cassation (Cassazione): sets the date of the hearing for the merit (April 9th, 2010) erroneously. Furthermore, in my appeal, I asked terms for my conviction’s enforcement be suspended. Instead of setting two separate hearings, the Court pronounced itself on the appeal, without debate (in chambers). My whole appeal was rejected.
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• Repetition of the hearing for the merit (May 14th, 2010). One month after the first hearing. After committing the above mentioned mistake, the Cassation, with the same reporting judge (Antonio Bevere) expressed itself once again for the merit of my appeal, without noticing (?) to have already done that.
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• Reporting judge: asks to correct the mistake while the second judgment is being issued and without informing the other party (the accused person: me). The reporting judge demands a partial cancellation of the first judgment – that for the merit – yet, without affecting the decision to suspend its civil effects (the fee).
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• Mistake-ridden judgments: aren’t even notified to me. This prevents me from impugning them.
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• New hearing before the Court of Cassation (December 17th, 2010): should have corrected the reporting judge’s mistake. It didn’t. No debate. My statement is rejected. I’m once again excluded from the hearing. Again. For the second time.§§§§
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• One more hearing before the Court of Cassation (June 16th, 2011). I impugned the judgement issued on December 17th and those related to it. The hearing was assigned to the very same section of the Court of Cassation responsable for the initial mistakes;
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• Another hearing before the Court of Cassation, (September 30th, 2011). I was still seeking to obtain a copy of the first judgment I has impugned (that issued on April 9th, 2010). Despite having requested it several times;§
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• The Court of Cassation doesn’t notify the acts at my address of service. No reason for the omission is provided. This action has severely violated my rights of defendant, having prevented me from collecting all the document needed to complement my appeals on the unbelievable mistakes committed by the Court itself;
• A (fourth) hearing is postponed (from June 16th to September 26th, 2011). It is the fifth hearing set by the Court of Cassation. It will anticipate that of September 30th, becoming the sixth.
Six hearings set (to this day) for the same appeal, before different sections of the Court of Cassation. They are judging one another.
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Still, they aren’t discussing the merit of the accusation against me, simply confirming my conviction because the judges of 1st and 2nd instance issued it like that – along with all the violations of the law they committed – and, by doing so, the Court accepts what they did…
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Further deepening on the reduction of defensive rights in Proceeding No. 2685/03: “short” trial as intended by Italian judicial authorities:
Incompetence of the Justice of the Peace in first instance and of the sole judge in second instance.
Alleged offense (Article 595 Criminal Code: defamation):
“[he] offended the reputation of the Mayor of Muggia […] as for their roles of, respectively, Mayor, members of the Commissione Edilizia Comunale (Board of works of the City) and Chief of the Servizio Urbanistico (Urban Planning Services ) of the City of Muggia […]”
What the Criminal Code says about this crime: under art. 595, sub-paragraph 4 of the Italian Criminal Code:
“Whenever the offense is committed against a political, administrative or judicial body, or a group that represents it, or colleges of authorities, then the punishments are increased”.
Comment: the subjects mentioned in the charge most certainly are the representatives of a political, administrative body, and they are united in a college.
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At this point, the Court of Cassation confirms the judgments of first and second instance:
“the legally correct definition of this fact leads to the equally correct questioning of the offense of defamation, here defined as a crime that pacifically falls within the competences of the Justice of the Peace, see Article 4, sub-paragraph 1, point a) of Dlgs (Legislative Decree) No. 274/2000.
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The competence of judge in charge of the appeal is as much peacefully recognized to the Court of the same district of the Justice of the Peace and it is to be represented by a sole judge under Article 39 of the same source of law”.
What art. 4, letter A, sub-paragraph 1 of Legislative Decree – Dlgs 274/2000 quoted by the Court of Cassation actually says:
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Article 4. (competence on matters)
1. The Justice of the Peace is competent:
a. as for the crimes – committed or attempted – envisioned by Articles 581, 582, only for the kind mentioned at sub-paragraph 2, prosecutable on the action of the injured party, Article 590, only for the offenses prosecutable on the action of one of the parties and excluding these related to professional misconduct or the violation of either the work-related accident prevention law or the law on Occupational Safety and Health;
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otherwise, for offenses that caused an occupational disease whenever, as for the cases mentioned above, the violation results in an illness lasting longer than twenty days; Article 593, sub-paragraphs 1 and 2, Article 594, Article 595, sub-paragraphs 1 and 2 Article 612, sub-paragraph 1, Articles 626, 627 and 631, except when the case is that envisioned by Article 639-bis, Article 632, except when the case it that envisioned by Article 639-bis, Article 633, sub-paragraph 1, except when the case it that envisioned by 639-bis, 635, sub-paragraph 1, 636, except when the case it that envisioned by 639-bis, Article 637, Article 638, sub-paragraph 1, Article 639 and Article 647 of the Italian Criminal Code.
Comment: so, the charge was wrong, since it recognized the offense against public officers (Art. 595, sub-paragraph 4 of the Italian Criminal Code).
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Still, the request to commit me for trial was grounded on the offenses envisioned by Article 595, sub-paragraphs 1 and 2, and that resulted in the assignation of the trial to the Justice of the Peace, a magistrate who is incompetent on the matter.
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But the incompetence of the Justice of the Peace as well as the need to formulate once again the accusation had been addressed before the Courts of first and second instance and even before the Court of Cassation, only to be eluded by all the magistrates who should have solved this unbelievable mistake.
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The sole judge in person, by accepting point 3 of the appeal lodged by the defendant and revolving around the partial repetition of the debate under Article 596 of the Criminal Code did, actually, recognize that the offense was against public officers. This is the only case in which the evidence of the truth is admitted.
Indeed, art. 596, sub-paragraph 3 of the Criminal Code does establish that:
“Whenever the alleged offense consists in the attribution of a specific fact, the evidence of the truth of said fact ought to be admitted in a criminal trial:
(1) whenever the offended person is a public officer, and the fact that they are blamed refers to the exercise of their functions”.
Yet, by admitting the evidence of the truth, the judge of second instance should have also proclaimed their incompetence, because the judgment of first instance was vitiated by the incompetence of the Justice of the Peace and, therefore, the judge of second instnace was incompetent as well.
This is due to the crime consisting in the offense against public officers as envisioned at Art. 596, paragraph 4 of the Italian Criminal Code (which is, again, the only case in which the evidence of the truth ought to be admitted under Article 596, sub-paragraph 3, point 1 of the Criminal Code) as for the first instance, the competent magistrate was a judge (not an honorary judge – justice) and the consequent appeal fell under the competence of a college (three judges).
Therefore, the primary incompetence of the Justice of the Peace as for the first instance of justice did also have consequences on the judge in charge of the appeal.
As a further evidence of the seriousness of the behavior of these judges in general, it is important underlining that the incompetence of both the judge in charge of the appeal and the Justice of the Peace had been pointed out by the defendant witnessing before a judge, and the judge did, on the other side, refuse to take that into account.
The proceeding’s Constitutional illegitimacy
The appellant raised the exception of Constitutional illegitimacy due to the omitted notification of the conclusion of preliminary investigations (under Article 415 bis Criminal Code).
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As for this, the Court of Cassation rules that:
“[…] the judge in charge of the appeal had correctly recalled the understandable interpretation criteria, under which said omission can be rationally justified by the primary need, identified by the legislator, to speed this kind of lawsuits up.
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The related question on Constitutional legitimacy is, therefore, correctly stated to be unfounded”.
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The Court of Cassation:
Essentially, The Court of Cassation decides that suspending the right to a fair trial, established under the Italian Constitution (Art.3, equality of all the citizens before the law; Art. 11, right to a fair trial) is necessary to speed trials up.
As I had already reminded to the Court, the proceeding’s “speeding up” doesn’t justify the violation or the iniquity of defensive rights.
And it is clear that there is been an unequal treatment of the citizen, depending on the judge in charge of the appeal (a justice instead of an ordinary judge) and on the fact that the citizen (me) is informed of the criminal trial only when I can no longer defend myself before the Court. Indeed, I only received a decree of citation, and so I had no time of mean to have a fair legal defense, (envisioned at art. 111 of the Italian Constitution).
Also, I lodged an exception of unconstitutionality. This means that neither the judge in charge of the appeal nor these of the Court of Cassation were competent on the matter, as that fell within the competences of the Italian Constitutional Court (Corte Costituzionale). All the act had to be forwarded to that Court under my specific request, for the Constitutional Court to decide.
HOW IT ALL STARTED: DENOUNCING AN ILLEGAL BUILDING
Now it’s time to see what the illegal building in question was about. And why the Italian judiciary defended it so strenuously.
The project is about a mall, the “Parco Commerciale Flavia”. And it is a detailed specific plan (P.R.P.C. – piano regolatore particolareggiato). Being presented by private citizens, it needed to comply with the city’s regulation on buildings (P.R.G.C. – Piano Regolatore Generale Comunale – Detailed Master Plan of the City) as well as the Region’s (legge urbanistica regionale – Regional regulation on urban planning).
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What the Regional law (No. 52/91) on the matter establishes (art. 49) is that the owners of areas or buildings near the areas (ambiti) already in the P.R.G.C. can, arrange their own draft PRPCs and submit them to the City Council. But only if the cadastral tax (imponibile catastale, a tax on properties: the cadaster is the general registry of all real estates) confirms that they own at least 2/3 (two thirds) of the areas or buildings’s value in the area concerned (ambito).
When it comes to the mall, the company that submit a draft only ownes 1/8 of the area (ambito).
Consequently, the private-submitted PRPC could not even be presented in the first place. Therefore, it should have not been approved.
I explained and proved all of this long before the City Council approved that PRPC. Only to be committed for trial and ultimately found guilty.
But is it possible that 28 judges (one in first instance, two in second instance, 25 in the Court of Cassation), 8 prosecutors (from preliminary investigations to the appeal: an actual Public Prosecutor, four honorary Public Prosecutors and three members of the vigili urbani – city police of Trieste), 5 general prosecutors (Court of Cassation), and an officer of the Criminal Police (Carabinieri) failed to understand such a simple thing?
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The truth about the illegal building is clear. Clear enough to show from cadastral map (see image above) annexed to and presented with the project. See? For the sake of clarity, the areas involved in the upcoming PRPC were highlighted green, while the area’s outline (ambito) was painted yellow.
A superficial look is enough to see that the green are is not the two thirds of the area involved in the project.
Had the PRPC not been approved, the company would have had many troubles with building the mall (it would have had to either find an agreement with the other subjects owning land in that area – ambito, or to buying that lans up to owning 2/3 of that area, as that is the amount needed to present a PRPC). And this would have blown a deal of several million Euro up.
This happening, along with all these related to it, was denounced to the supervisory bodies and disciplinary offices competent on of the Italian judicial authority. To this day, no reaction is known.
Soon, public opinion found out that the head of the Inspection Office of the Ministry of Justice was himself under investigation for belonging to the so-called P3 (a secret, pseudo-masonic lodge).
A lot of other high magistrates are involved in this investigation. Is it possible to trust a justice made of “judiciary brotherhoods” reeking like a pseudo-masonic Mafia?
Photo: the mall, built illegally.
Translated from blog “Ambiente e Legalità” – “Environment and Legality” by Roberto Giurastante