By Leonardo Sciascia

ABSTRACT: Judges, in order to avoid feeling inhibited in the exercise of their profession, push worries about the possibility of error to the margins of their consciousness and want the comfort of being exempt from criticism in their work. This privileged situation has had the effect of exalting Italian courts to the level of altars. The administration of justice has taken on a religious, an inscrutable tone, and public opinion has lost the right to watch over and criticise cases that present obscure aspects. This too is an aspect of the Tortora case, and not only the question of his guilt or innocence.

(from Il Corriere della Sera, October 14, 1983)

Some ten years ago, Jacques de Pressac, a diplomat to whom I owe the debt of excellent French translations of some of my work, was speaking with me about the Calas case and Voltaire's "Treatise on Tolerance" which was a point of debate in my then just-published work "Contesto". He said: "You know, Voltaire may have been mistaken?" And he promised to make me a present of a book in which Voltaire's possible error was discussed. It soon arrived. It was a volume in a series called "Engimes et Drames judiciaires" published around 1930 in Paris by Perrin and was entitled "L'affaire Calas". Author Marc Chassaigne. But I confess that I never got much further in it than the preface - and not because I was afraid of discovering that Voltaire had been wrong. On the contrary, I admit that he probably was. But what does it matter if he was wrong? What counts is that his view of the facts, right or wrong, was what produced the "Treatise on Tolerance". As an epigraph, Chassaigne used a phrase from a letter Voltaire wr

ote in 1762 in which he says he only knows the facts that are in Calas' favour - which seems a bit thin for taking a decisive stance. On Chassaigne's part it is an insinuation. It is true that at the time of the letter Voltaire had already taken sides, but it was only a few months before he

also came into possession of the facts for the prosecution, and they confirmed the opinion he had already formed.

This preliminary insinuation that Voltaire had taken a stance before knowing all the evidence in the case makes it hard to believe Chassaigne when he states in the preface that he wants to put the reader back into the position of choosing between the differing hypotheses the book presents of the Calas case, and for his - Chassaigne's - part, not to take any side. Of these three hypotheses, says Chassaigne, one, Voltaire's, has won out and become known throughout the world; but he seems to have forgotten that one of the other two, which to him seem to have been overshadowed, was responsible for getting Calas hanged. As for the third, not having read the whole book I have the impression, but not unfounded, that it is a middle position that tries not to put Voltaire entirely in the right nor the judges entirely in the wrong. And I get the feeling that Chassaigne's secret desire is, if not to convince the reader of Voltaire's error, at least to make him accept the idea of right and wrong not being clearly estab

lished and assigning some of each to the judges who sentenced Calas to death and to Voltaire who proclaimed his innocence. And he forgets that, in presenting the case as dubious, the judges are still in the wrong since it is axiomatic that doubt must always go in favour of the accused.

For my part, I have formulated a hypothesis about Chassaigne, that he was one of those officials of public administration or a judge who - as is frequently the case in France - do work in their free time, or once on pension, of a kind that stands somewhere between literature, history and their profession.

Mostly I am inclined to believe that he was a judge, since only a judge could have so much professional and group sensibility as to take on the defence of other judges, especially after such a long time, and motivated, in the end, by the more or less conscious conviction that judicial errors do not exist or have, in any case, their justifications.

And even fighting as a layman against such a belief or presumption, one must concede something to the judges, at least in the sense of understanding their position, which, exercising the profession that they do, is by definition "higher" and thus isolated; a difficult profession and afflicted with daily uneasiness. And they would be inhibited in practising their profession if they did not succeed in pushing the worrisome question of error to the horizons of consciousness where it can only flash intermittently. Indeed, they greatly need, singly and even more as a group, to believe it impossible to err. Inasmuch as society has appointed them to punish violence with violence (the violence of of condemning a man to losing his liberty, not to mention those places where he can still be condemned to lose his life), they need the comfort and security, if not of a general and continuing consensus, of a general indifference and a lack of criticism of what they do. Hence the professional inspiration which makes them a

nd them alone able to distinguish between the best and the worst, and the irritation with which they receive any criticism coming from the outside.

And this, I repeat, one can understand: but yet without ceasing to keep a watch on this belief or presumption of theirs and fighting it whenever it manifests itself all too evidently. The right to judge has not been delegated to each and every judge once and for all; society and public opinion have the right to be vigilant and to criticise any judicial case that shows obscure and contradictory aspects, and to distinguish between the best and the worst of judges. And as to their professionalism (a much abused word today, perhaps because every branch and category today feels it lacking), trespassing is not so absolutely forbidden that the eye of the outsider, or if you prefer, the

layman, can not be allowed to enter there and look around. On the contrary, where the administration of justice is concerned, no one can be considered an outsider and a layman no matter how lacking he may be in, let us say, technical knowledge.

Assuming that the science of the human heart is equal to that of the legal codes, and perhaps more than equal, the administration of justice could only be damaged by an excess of professionalism. In short, when a person chooses the profession of judging his fellow men he had better resign himself to the paradox - however painful - that you cannot be a judge and worry about public opinion, but neither can you refuse to worry about it. In the accounts you keep of your uneasiness you must not forget to include an estimate of those that will come from the attention the public gives to certain cases. And this is true for all latitudes, for all countries in which the courts have not been sanctified.

But in Italy there is a certain tendency towards exactly this kind of sanctification. One should remember that to detect the dubious secrets of the saints is a function of truth (and it should be the assiduous task of all those who have to do with the printed page and the other media which inform and form public opinion). In short, the administration of justice is taking on a faint odour of sanctity, of the religious, of the inscrutable - and with consequent tinges of fanaticism.

Certain elements have contributed to this state of mind - that by now has entered the blood stream of the magistracy - to this condition of irresponsibility, of privilege, of refractoriness and intolerance towards any criticism which the magistracy tends to make its stronghold. Those elements, to summarise, are these: the absolute independence which it was desired - quite rightly - to give to judicial power but in which has arisen a de facto dependence on party power; the vacuum that has developed in itself through promoting the power of the executive and which has been like an invitation (and a necessity) to the judicial power

to fill; the confusion into which the legislative power has fallen.

In saying all of this, I don't believe I have deviated from the subject under debate today and which goes by the name of Enzo Tortora. I have wanted to say that the problem is not only a question of Tortora's guilt or innocence, but of a general kind, of each and every Italian. Even if Tortora were to prove guilty of the charges against him beyond all doubt, the problem would continue to exist in the very same terms, and those who bring it up would still be in the right in continuing to bring it up.

To those who ask - with irritation - why we bring it up just in Tortora's case, the answer is easy: because in just this case, due to the notoriety of the protagonist, we have had the information necessary to form an opinion, a judgement. Years ago a friend of mine - and a friend of many "intellectuals" - was arrested on very serious charges. A newspaper asked all those who knew him for their opinion about the case - and they all said they thought he was innocent (as he was, and thanks to Cesare Terranuova (3) was recognised to be). Upon which the newspaper made a demagogic attack on all those who had declared his innocence, accusing us of partiality and saying that we would not have made similar declarations in favour of any poor wretch.

As one can see, an absolutely gratuitous attack, and of the same kind that are now being made on those who express criticism of the way the judges are behaving in the Tortora case. You are concerned about Tortora, they seem to be saying, because he is one of the privileged, and you want him to keep his privileges even before the law. And they insinuate that those who defend him are moved by economic interests. An ignoble insinuation, a base attempt at intimidation. We defend Tortora in order to defend our rights, the right of every citizen not to be deprived of liberty and not to be exposed to public scorn without convincing proof of his guilt.

Personally I am convinced of Tortora's innocence. But I would have resisted expressing my opinion publicly - unless someone had asked me for it, as that newspaper did - if I had not been furnished, day after day, with evidence that made my judgement objective by so-called news leaks (which evidently were being passed into trusted hands from the inside).

The Campania magistracy can protest as much as it likes if it won't admit that what it calls "a judicial procedure against organised crime" has been, to say the least, a hurried affair characterised by an alarming percentage of errors.

Instead of speaking to the press in tone that sounds rather like "Let me do my work, boy!", they should at least explain to the High Judiciary Council, if not to all Italians (and then there would be the news leaks), whether it is true that two hundred people were arrested because they had the same name (and going so far as to keep them in prison for as much as three months, as was a poor sailor from Eboli - and let us hope that there are not still others in prison); whether it is true that in a village of Campania some ten people with the same family name were arrested in order to find a single one who belonged to the Camorra; if it is true that at the time the warrant was issued for Tortora's arrest the only evidence against him was the accusation of two "repentant" gangsters and his phone number found in the address book of one who was not repentant; and if this way of justifying an arrest warrant does not in the end simply encourage those who have nothing to lose to have fun putting anyone they feel lik

e in jail; whether it is true that the idea of accusing Tortora of pocketing money collected for aid to earthquake victims was not suggested by an anonymous per son and caught on the fly as a diversion; whether it is true that the testimony of Margutti (4), whose past was flung in his face on television, is one of the cardinal points of the prosecution;

whether it is true that all of the evidence thought to paint a picture of Tortora as a dedicated delinquent issue promptly, and in violation of the secrecy of the judicial enquiry, from that very office whose task it is to keep it secret (and one cannot imagine what other office could be leaking it, unless the Camorra or the secret services have bugged the place). These are questions that regard "professionalism". And let us leave aside those that regard conscience.

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1) Enzo Tortora, a famous Italian TV personality and Eurodeputy for the Radical Party, was convicted and jailed for presumed Mafia connections. Some years later his conviction was reversed.

2) Ugo Foscolo, the Venetian poet of the last century.

3) Cesare Terranuova, a judge murdered by the Mafia.

4) Giuseppe Margutti, convicted for fraud and calumny.