By Chiara Coppotelli and Bianca Urbani –

1. INTRODUCTION

This paper deals with the case of Paolo Borsellino, an Italian judge killed by

the Sicilian Mafia in the summer of 1992. He represents a symbol of the

fight against the Mafia and his murder is one of the most important events of

Italian history, especially because, after many trials, the whole truth behind

his death is still unknown. In particular, magistrates are investigating about

the possible link with another Italian issue called “State-Mafia Pact”, a

supposed negotiation between criminal organization bosses and political

institutions.

This paper will attempt to offer a complete criminology analysis of this

famous case, that has been often referred to as the death of a “hero”. The

primary purpose is to go over the individual tragedy itself and grasp the real

importance of it: its political dimension, its connection with the dysfunction

of the Italian political context and, especially, how the Sicilian Mafia

imposed and still imposes its power on civil society.

Within this paper the reason why the murder of Paolo Borsellino has to be

considered a political crime will be explained on the strength of various

sources (criminological literature, Italian jurisprudence and law), in order to

make a real, complete and profound evaluation.

The paper is structured as follows:

Firstly, some fundamental information will be given about the historical

background: the life of Borsellino, linked to his investigation in the fight

against the Mafia and the origin and the development of the “State-Mafia

Pact”.

Only if all these elements are explained can the thesis of this paper be made

clear.

Secondly, the concept of political crime will be briefly introduced:

clarifying why there is no universal definition and the different theories.

Thirdly, the question whether the murder of Paolo Borsellino can be

considered a political crime will be explained. It is possible to give opposite

answers: it depends on the interpretation of the murder as an end in itself or

a means to an end. Both thesis are developed and analyzed according to

subjective and objective criteria. They involve different solutions: according

to the first approach this case is an ordinary crime, according to the second

one it is a political crime.

Then the reason why this second theory is the most persuasive one will be

explained. In fact, even if both thesis could be considered correct, the

analysis of the case as a ordinary crime is too superficial.

Finally the kind of political crime will be illustrated by referring to

criminology typology. Two different approaches will be possible: crime

against the state and state crime. Referring to the former, it will show that

this case can be considered a terroristic attack, according to criminology and

this theory is now supported by magistrates, even if the trial is not yet

concluded . Regards the latter it will be shown how it is possible to

distinguish different kinds of state crime, however only one, state crime by

negligence can certainly be applied to this case, although different and

prestigious opinions support the idea that the case of Paolo Borsellino

represents a state crime by omission.

In the conclusion the logical development will be summarized and some

general reflection about the Mafia will made, including a recommendation

on what the Italian State should do to combat this criminal organization. In

order to prevent the reoccurance of such horrific events, a study of these

past cases must be made, so as to learn how to better deal with the Mafia

organisations.

2. HISTORICAL BACKGROUND

THE LIFE OF BORSELLINO

Paolo Borsellino was born in Palermo 1940, interestingly, he grew up in the

same neighborhood, where his friend and future colleague Giovanni Falcone

also lived. His family was middle-class, his father was a pharmacist. In 1958

he began classes at the faculty of Law in Palermo and in 1962 he graduated

with honors; one year later he passed the State exam and became a judge. In

1968 he married Agnese Piraino Leto and they had three children.

Between 1963 and 1975 he worked in many Sicilian cities, in Monreale he

worked with the captain of the Carabinieri Emanuele Basile, who was killed

by Mafia in 1980. In 1975 Borsellino moved to Palermo where he met and

became friend with his colleague Rocco Chinnici and they got involved in

important investigations regarding the Sicilian Mafia. During those years

Chinnici started thinking about the project to create an “antimafia pool”: a

small group of magistrates, who would have worked together, coordinating

investigations, sharing information and, trying to improve the fight against

the Mafia. Unfortunately in 1983 Chinnici died in the explosion of a car

bomb placed by the Mafia; some days later the magistrate Antonino

Caponetto went to Palermo to take his place. (Deaglio,2009).

Antonino Caponnetto created the antimafia pool conceived by Chinnici. The

group consisted of Giovanni Falcone, Giuseppe Di Lello, Leonardo

Guarnotta and Paolo Borsellino. As the result of the pool’s action , in 1986

the “Maxi Trial” started in Palermo; in 1987 almost four hundred persons

were convicted because of crimes relating to Mafia activities and most of

the convictions were upheld by the Italian Court of Cassation in 1992. The

Maxi Trial actually represents one of the most important actions of Italian

history, not only because of the great judicial results but also because it

made people learn about the Mafia organization and its business which were

almost unknown before the Maxi Trial. (Bongiovanni, n.d.)

In 1987, at the end of the Maxi Trial, Caponnetto left the antimafia pool

because of health problems. Everybody thought that Falcone would take his

place as head of the Antimafia team but the CSM nominated AntoninoMeli.(Deaglio, 2009). There was a big protest and Borsellino was the

protagonist: in some interviews he publicly alleged that institutions hadintentionally made the pool weaken . 

On 23th May 1992, during the presidential election, Giovanni Falcone, his

wife and three body guards were killed by a bomb, placed by Mafia under

the motorway between Palermo International Airport and the city. The

tragedy is remembered as “the Massacre of Capaci”, that is the place where

the bomb exactly exploded. ( Facci, 2012). After Falcone’s death

Borsellino’s accusations became stronger. In many occasions he alleged that

the State had left Falcone alone and that it didn’t truly support the

magistrate’s action against the Mafia. (Lo Bianco & Rizza, 2007). During

his speech commemorating Falcone, Borsellino said : “Giovanni Falcone

was perfectly well aware, as he worked, that one day the power of evil, the

Mafia, would have killed him. His bodyguards were perfectly aware, as

they protected Falcone, that they too would have met the same fate as him.

Giovanni Falcone could not be oblivious, and was not oblivious, to the

extreme danger he faced”. ( Lardera, 2012).

Before dying, Falcone was investigating into Mafia control of public works

contracts and the possible involvement of businessmen and politicians. After

Falcone’s death Borsellino started to work in relation to that investigation.

MASSACRE OF VIA D’AMELIO

On 19 July 1992 Paolo Borsellino was killed by a car bombing in Palermo.

This event is usually called “the Massacre of Via D’Amelio”, because the

attack took place in that street. The Italian judge was to meet his mother,

but when his police escort and he arrived, a bomb left in a car exploded.

Paolo Borsellino and the members of the police escort, Agostino Catalano,

Emanuela Loi, Vincenzo Li Muli, Walter Eddie Cosina and Claudio Traina

died. The bomb had been left in a Fiat 126 and it contained 100 kg of

TNT. Antonio Caponetto revealed that the ordinary procedure when

Borsellino travelled was to clear the road of cars, but that day the

administration of Palermo did not allowed it.

After this event there were protests in the prefecture of Palermo and during

the escort’s funeral. Almost four thousand police men were sent to

maintain the peace, but when politicians arrived a furious crowd started

shouting: “ Via la Mafia dallo Stato!” ( “Take Mafia out of the State!”) ;

the new Italian President Oscar Luigi Scalfaro was violently tossed

around. (http://youtu.be/hvrU1-0dgao). Borsellino’s wife declined the

official funeral ceremony as a protest against the State that had not

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protected her husband.

This event shocked Italy: in less than two months, two symbols of the fight

against the Mafia had been killed.

Four trials regarding the “ Massacre of Via D’Amelio” took place and

Borsellino’s murder has been attributed to Cosa Nostra, the Sicilian Mafia.

STATE-MAFIA PACT

During the various trials the possible link between the death of Borsellino

and the “State and Mafia Pact” has also been considered.

The “State-Mafia Pact” is a supposed negotiation, that took place in the

nineties between some members of Cosa Nostra, some politicians and

members of the police force.

At the beginning it could have been accomplished between Mafia and

the Raggruppamento Operativo Speciale (ROS), or Special Operations

Group, a part of the Italian Carabinieri. Then, it is presumed that the pact

was actualized to stop the “season of violence”, started by the Mafia in order

to obtain legislative concessions. Probably this program was decided after

the Italian Court of Cassation sentence: during the Maxi Trial most of Mafia

bosses were sentenced to life imprisonment.

The Court of Assise (Palermo,15 July 1998) said that the murder of Sandro

Lima was the first step of that strategy. He was an Italian politician,

Andreotti’s henchman, and he was considered to be the Mafia contact

within Italian politics. Witnesses said that Lima had been precisely ordered

to modify the sentence of the Maxi Trial and had been murdered because he

failed to do so. According to Gaspare Mutiolo, a Mafia “pentito” (Stille,

1995): “Lima was killed because he did not uphold or couldn’t uphold, the

commitments he had made in Palermo (…) The verdict of the Court of

Cassation was a disaster. After the Supreme Court verdict we felt we were

lost. That verdict was like a dose of poison for the mafiosi, who felt like

wounded animals. That’s why they carried out the massacres. Something

had to happen (…) Lima was killed because he was the greatest symbol of

that part of the political world which, after doing favors for Cosa Nostra in

exchange for its votes, was no longer able to protect the interests of the

organization at the time of its most important trial”. (p. 378-380).

This murder proves that the Mafia was working on the Italian territory even

before the season of violence started, thanks to politics and, consequently,

thanks to the State. The Mafia killed Sandro Lima because he was not able

to keep the promises made during the former agreement. This is the reason

why Cosa Nostra decided to obtain its requests in a different way: dramatic

violence against institutional characters.

Mafia requests could be proved by the “Papello”. Nowadays prosecutors

have this document in their possession and they are trying to investigate its

truthfulness.“Papello” was written by Totò Riina, who gave it to Vito

Ciancimino, the former mayor of Palermo. It contained twelve requests

made by the Mafia in order to stop the strategies which were taking place in

Italy. The twelve points were (Forleo, 2013):

Revision of the verdict of the Maxi – Trial;

The annulment of the art 41 bis, l. 1975, n. 354.

Revision of crime involving Mafia association;

The change to the law about the so- called “pentiti”, who are those

criminals who collaborate with magistrates in investigations and obtain

some judicial benefits;

Some benefits for Mafia criminals;

House arrest to be granted to prisoners who are 70 years old and over;

Closure of special jails;

Detention close to the family home;

The removal of censorship on mail;

The elimination of prevention measures for family;

Capture only in the act;

Tax abolition on fuel in Sicily.

3. THE CONCEPT OF POLITICAL CRIME

The concept of political crime is relevant in many fields, like criminology,

law or sociology. This makes it more difficult to give a universal definition

of this term. In fact, today there is no one and, as the Italian jurist Francesco

Carrara (1886) in “Programma” observed the concept of political crime

seems to be indefinable. The first problem that authors have to face is the

meaning of the term itself: political crime. Van den Wyngaert (1980) noted

that it is a tautology, because any crime can be considered a political one.

In fact, if a crime is a human act against criminal law, it always offends

exactly the social and “political” values that the Parliament wanted to

protect.

The necessity to distinguish political crimes from ordinary crime is both

theoretical and practical as it is significant in many legal contexts especially

in extradition law, asylum law and immigration law.

Laws themselves often provide particular definition of political offence that

are useful in applying their rules. For example, the Refugee Convention of

1951 in the article 1 F (a) indirectly defines the political crime as “a crime

against peace, a war crime, or a crime against humanity”( United Nations

1951). Moreover, the article 8 of the Italian Penal Code mentions that (in

order to apply the Italian criminal law) a political crime is a crime that

offends a State political interest, a political right of the citizen or an ordinary

crime with a political intent. Sometimes laws mention the “political crime”

without giving a formal definition. For instance, the article 10 of the Italian

Constitution says that “a foreigner may not be extradited for a political

offence” (exception for genocide). In these cases the doctrine tries to fill the

legislative void.

The criminology theories about the concept of political crime can be divided

into three groups (Parmentier & Weitekamp, 2007):

– Subjective theories are based on the intent and the motivation of the

offender;

– Objective theories are based on the target, the context and the

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consequences of the act;

– Mixed approach considers both the subjective and the objective elements.

However none of these criteria actually seems to be decisive in itself. In

fact, the idea that is possible to identify a political crime by the mechanic

application of fixed criteria, does not seem to be persuasive. In order to

make a complete criminology analysis of facts it is more advisable to

combine the various contributions of different authors and jurists, which put

the emphasis on different elements of the political offence. This is the right

approach to understand the deep meaning of criminal phenomena and the

method that will be used for the analysis of the case of Paolo Borsellino.

Criminology also tried to make a classification of political crimes. Most of

the authors agree about the possibility to divide political crimes into two

principal categories: crimes against the state and crime by the state.

The first one includes crimes committed by people against the state in

protest, changing or bringing down the existing establishment (Brown et al.,

1991). These crimes against the government were conceptually expanded

by Ross (2003), who calls them “oppositional crimes”, which are distinct in

being nonviolent (dissent, sabotage, subversion, sedition, treason and

espionage) and violent (terrorism and assassination).

The second one includes crimes committed by the state against people in

order to “ sanction those who threaten or appear to threaten the

establishment(…) or in order to maintain and enhance the existing political

and economic systems” (Brown et al. : p. 667). These crimes, perpetrated by

the government also known as state-crimes and “non-oppositional crimes”,

according to Ross (2003) include political corruption, illegal domestic

surveillance, human rights violations, state violence and state-corporate

crime.

Building on the basis of this main distinction of political crimes, Kauzlarich

(2005) considered that the area of state crimes can be divided into three

groups: state crime of commission (characterized by direct action), state

crime of omission (characterized by tacit support of a crime) and state crime

by negligence (characterized by a state mandate or responsibility to make

safe a situation or context).

The aforementioned classification will be used in the analysis of the case of

Paolo Borsellino. Firstly it will be shown why it can be defined an

oppositional and, in particular, a terroristic attack. Secondly it will be asked

if there is a State responsibility and it can be considered a non- oppositional crime. In fact prosecutors are still investigating on the possible role of the

politicians and police in “Massacre of Via d’Amelio”.

4. CAN THE MURDER OF PAOLO BORSELLINO

BE CONSIDERED A POLITICAL CRIME?

The case of Paolo Borsellino can be looked at both as a an ordinary crime

and as a political crime. It depends on the way it is interpreted: as an end in

itself or as a means to an end.

Both solutions are analyzed and discussed on the strength of the subjective

and objective criteria of criminology doctrine and the Italian jurisprudence.

In the conclusions it will be explained why the “means thesis” is the most

persuasive and, consequently, why this case has to be defined a political

crime.

A. THE CASE OF PAOLO BORSELLINO AS AN END AND

AN ORDINARY CRIME

Firstly it is possible to interpret the murder of Paolo Borsellino as the

ultimate aim of this Mafia act: this criminal organization killed a man, who

was a limit for its economic purposes. According to this perspective this

crime cannot be considered a political one neither for subjective elements

nor for objective elements.

On the basis of subjective theories a political intent is necessary to define a

crime as a political one. On the opinion of Carl Aage Norgaard

6

(1990), the

former president of the European Commission for Human Rights, who was

asked to give a definition of political crime, the motive must be clearly

political and not private. For the Italian jurisprudence ( Cass,sez I, sent n

35488/2003) a “political intent” means that criminal aims to reach a

6

In 1990 Carl Aage Norgaard stipulated seven necessary principles in order to define a

crime as “political”. These seven criteria are the following: 1) the political motive of the

offender 2) the circumstances in which the crime has been committed 3) the nature of the

political objective 4) the legal and the factual nature of the offence 5) the relationship

between the offence and the political objective 6) the object and /or the objective of the

offence 7) the question whether the act was committed in execution of a an order or with

the approval of the organization, institution or body concerned. (Parmentier & Weitekamp,

2007).

11

political purpose related to: “the entity of the State, Government structure

or political ideas, which involve the whole community”. (Garofoli, 2011: p.

153).

In this part it is assumed that the physical elimination of the “enemy” Paolo

Borsellino was the only purpose of this Mafia act. From this point of view,

Cosa Nostra killed him because of personal revenge, especially regards the

Maxi Trial results, and, indirectly, for economic reasons: he was an

incorruptible magistrate who limited Mafia business with his action.

Objective theories consider that it is more advisable to define a political

crime by the use of objective criteria, because to prove the existence of a

political intention in trial can be difficult.

At first it can be useful to look at the legal and the factual nature of the

offence. The author Van den Wyngaert (1980) divided political crimes into

two groups: “purely political offences” and “related political offences”. The

first category includes political behaviors which are criminalized by law in

order to protect the democratic order, for instance conspiracy or espionage.

The second category includes criminal behaviors, which have a political

dimension. According to this theory to kill a man cannot be considered a

purely political crime”, but it could become a “related political crime” if

there were a political context (for example with a political target) or

concrete political consequences (for example, special measures from the

Parliament).

In order to identify this political dimension of the related political crime, it

is possible to refer to the author Carl Aage Norgaard (1990). He noted that a

fundamental element of a political crime is the nature of the political

objective. There is a political target when the crime is directed against the

State or political organization or society. On the basis of article 8 of the

Italian Penal Code, Fiandaca and Musco (2013) claimed that a crime is

objectively political when it offends the political interest of the State: its

territory, its independence, its form of government, its population” (p.136).

Analyzing the case of Paolo Borsellino as the ultimate purpose of the Mafia

act, the target of the crime was the incorruptible judge Paolo Borsellino. In

order to understand if this case can be interpreted as a political crime

because of the target criterion, it is necessary to answer the question: is the

circumstance that he was a judge a decisive element to define this crime

political? In fact, when a judge is murdered there are two victims: firstly the

man who has been killed (direct victim) and the judicial power (indirect

victim). In effect, by killing magistrates criminals can actually slow down the judicial action, investigations and they limit State efficiency in

preventing and punishing crimes. However, even if it is certain, as it has just

been explained, that the murder of a magistrate offends a State interest, the

majority of the Italian doctrine thinks that there is no a “political target”

when the crime is directed against the judicial power. The reason for this

statement is that judicial power is generally independent and, par excellence,

not political. In particular the article 104 of the Costitution of the Italian

Republic, says: “The Judiciary is a branch that is autonomous and

independent of all other powers”. (p.27). The idea that judiciary is not a

political power is not recent. In fact in the XIII century the English jurist

Henry de Bracton( 1235) made the distinction between two essential

moments of the State’s action: gubernaculum e iurisdictio. The first one is

the “political moment” in which rules are decided ad approved; the second

one is the “judicial moment” in which law is objectively applied.

On the basis of the aforementioned reflections it is possible to establish that

a magistrate in the quality of representative of the judicial power, is no

political target” .

In conclusion if the murder of Paolo Borsellino is interpreted as an end in

itself, it has to be considered an ordinary crime because of three reasons:

firstly it is not a “subjectively political crime”, because the criminal intent

was private; secondly in relation to the nature of the offence a murder is not

a political crime in itself or a “purely political crime”. Thirdly as it has been

explained, there is no a political target. In fact, even if this crime indirectly

limited one of three powers of the State, in particular the judicial power, it

didn’t offend a political interest of the State.

B. THE CASE OF PAOLO BORSELLINO AS A MEANS TO

AN END AND AS A POLITICAL CRIME

Changing the approach to this case and considering it as a means to an end,

it can be seen as a political crime both for subjective and objective elements.

From this point of view the murder does not represent the final aim of the

Mafia act but a necessary element of a program, made of violence and

devised by the Mafia.

On the basis of subjective theories, as it has already been explained, a

crime is political when the motivation is political. For instance, the

criminologist Stephen Schafer (1972) talks about the “convictional

element”. According to this author, the political crime is an “instrumental

crime for ideological purposes” (p. 385). It is possible to find this so-called

convictional element in the case in question, if it is considered as a means to

an end. In fact, the Italian Court of Cassation in the sentence n. 1157/2008

said that the “Massacre of Via D’Amelio” can be interpreted as an

instrument of a strategy, that included violent aggressions against

institutional characters in order to obtain legislative concessions. Especially,

as the “papello” shows, Cosa Nostra wanted to get more power obtaining

the annulment of the art. 41 bis, l. 1975, n. 354 and the change to the law

regarding the “collaborators with justice”. Antonio Riina, the boss of the

Sicilian Mafia, said “it was necessary to make war in order to make peace

later” ( D’Avanzo, 1994: p.1) with the State. That means that the real

motivation of the crime was not the death of the “enemy” Paolo Borsellino

but to force Parliament to take into consideration Mafia political interests.

From this new perspective, there is a strong political intent: to kill Paolo

Borsellino, a symbol of legality and justice, was only a necessary means to

grab the attention of the government and influence the legislative function.

Objective theories include the idea that the target is essential in order to

define a crime as political. Interpreting this crime as an end in itself, as it

has already been explained, the target cannot be defined political. However

if the murder of Paolo Borsellino is considered as a means to an end, the

solution is different. In fact, the murder of the famous judge is now analyzed

as a necessary step of a complex strategy to push the State to give legislative

concessions to Cosa Nostra. It means that the State became a victim of

blackmail: if institutions had not collaborated, violence would have

continued.

14

According to this new perspective, even if the direct offended party of the

crime was Paolo Borsellino, he represented only a symbolic victim while

the real target was the State. In fact, by trying to extort legislative

concessions with the use of violence, Cosa Nostra offended a political

interest of the State: the possibility for the Parliament to choose rules freely.

Moreover this one represents one of the fundamental elements of a

democratic system. The philosopher Aristotele said “The basis of a

democratic State is liberty”( Jowett, 1885: p. 189).

Having made these consideration it is possible to conclude that if the death

of Paolo Borsellino is interpreted as a means to an end, this crime has to be

seen as a political crime. In fact firstly there was a political motivation, in

particular to obtain legislative concessions. Secondly and according to a

substantial approach, the real target was political: the State that was the

victim of a blackmail.

WHY SHOUD THIS CASE BE CONSIDERED AS A

MEANS TO AN END?

It has been shown that the same case can be considered as an ordinary crime

and as a political crime. Both of these analyses are correct, but the aim of

this paper is to show that the second approach is the most complete and

convincing one.

Mafia decided to kill the Italian magistrate (no political target), because his

investigation on Mafia affairs could block or slow its business (no political

motivation). So, if the analysis stops at this first level it is correct to say the

case in question does not represent a political crime, but criminology or

legal evaluations have to take into consideration all aspects and elements. In

fact as Parmentier and Weitekamp (2007) noted, all political crimes “have

at least one element in common, namely that they go beyond the micro level

of individuals and individual motivations, and that they are situated at the

meso level and the macro level of societies” (p.2).

Going over the individual level means to realize that killing Borsellino was

a signal for the State ( political target) of blackmail for legislative

concessions (political motivation) and consequently it has to be considered a

political crime.

15

5. TYPOLOGY OF THE CRIME: THE PAOLO

BORSELLINO CASE

As it has already been shown the best approach to this case is to consider it

a political crime. Now it is possible to analyze which kind of political crime

the case in question represents. For this evaluation criminology typology

will be used. It is possible to refer to the two-fold approach, crime against

the state (oppositional political crime) and crime effected by state (non-

oppositional political crime) and applied it on this case.

In the first point it will be shown that this case is certainly a crime against

the state, because the state is the final target. In particular, it will be

interpreted as a terroristic attack. In the second point it will be asked if it is

can also be considered a state crime, looking at the state responsibility in

this murder.

A. THE MURDER OF PAOLO BORSELLINO AS A CRIME

AGAINST THE STATE

This crime is an oppositional violent crime, because the Mafia effectuated

the “Massacre of via d’Amelio” to force the State to make a deal and to

achieve its business and legal interests. That means that the freedom of the

State has been offended.

From a criminology perspective it can be seen as a terroristic attack.

According to Ross (2003) a terroristic attack is “ a method of combat in

which random or symbolic victims became targets of violence” (p.57 );

Paolo Borsellino was the key character in the fight against the Mafia and

people trusted his work and considered him as a living hero, he was indeed a

symbol.

From the legal perspective, the case of Paolo Borsellino has not yet been

established as a terroristic attack. However this idea was proposed in 2012

when the Tribunal of Caltanissetta issued the arrest warrant for SalvatoreMadonia, a Mafia boss (“Borsellino, Quattro nuovi arresti ucciso dal terrorismo dei boss”, 2012). The judge said that the massacre was organized

in order to force the State to accept the negotiation, thanks to which the

Mafia would have obtained concessions. This is the reason why this

criminal was accused of the crime of massacre exacerbated by “terroristic

aim” on the basis of the article 270-sexies of Italian Penal Code:

Behaviour which, either for their nature or their context, may cause damag

e to a country or an international organization and to result in the

intimidation of people or forcing public authorities or an international

organisation to perform or not to perform an act or to destabilize or destroy

fundamental, constitutional, economic and social public structures of a coun

try or international organization, is considered to be aimed at achieving

terrorism. This is similar for behaviour considered terroristic under the

scope of international laws and conventions binding of Italy”.

B. THE MURDER OF PAOLO BORSELLINO AS A CRIME

PERPETRATED BY THE STATE

Having established that the murder of Paolo Borsellino can be interpreted as

an oppositional political crime, it would be interesting now to investigate a

possible responsibility of the State. For this purpose it is necessary to refer

to Kauzlarich (2005) who observed that state crimes can be divided into

three groups: state crimes of commission, state crimes by omission and state

crimes of negligence.

STATE CRIME OF COMMISSION: a state crime of commission is

when the State, through its institutions, acts directly and commits the crime

( i.e. genocide). (Kauzlarich,2005).In the case of Paolo Borsellino it is

impossible to find a direct responsibility of the State. In fact there are no

elements which create the suspect that members of the State wanted the

death of Borsellino and materially proceeded towards this purpose. On the

contrary it has been proved that the physical perpetrators were members of

Cosa Nostra and the murder has been judicially attributed to this criminal

organization.

STATE CRIME BY OMISSION: a state crime by omission is when the

State tacitly supports the activities of criminal organizations.

(Kauzlarich,2005). Today this kind of State responsibility in the murder of

Paolo Borsellino has not yet been established. However it is assumed that

some members of institutions would have intentionally not protected him,

17

the trial is still unconcluded. The two possible motivations would have

been: to avoid conflict with the Mafia or to prevent Borsellino finding out

information regards a State-Mafia pact. This is a plausible idea, considering

the historical context and the proved and past relationship between State

and Mafia( i.e the case of Sandro Lima).

Moreover the aforementioned hypothesis comes from some mysterious

events on which magistrates are still investigating. For instance:

After death of Falcone, Borsellino started to work in relation to the

investigation of the relationship between businessmen, politics and the

Mafia in illegal business committees, in particular in public contracts.

On 20thJuly, 1992 the day after Borsellino’s death, the public prosecutors

office of Palermo asked unexplainably to dismiss the investigation on Mafia

public contracts Some years later the “pentito” Giovanni Brusca revealed

that Cosa Nostra would bribe politicians in order to obtain public contracts (

Corte Assise 15thJuly, 1998).

Borsellino always used a red notebook, the “agenda rossa” to write his

appointments and secret information about his investigation. According to

the deposition of Agnese Piraino Leto, Borsellino’s wife, his sons and a

policeman, Borsellino had this notebook in his bag the day when he died.

After the explosion in Via D’Amelio the intact bag was found but the

notebook was not inside it.

Some journalists took a picture of a member of Carabinieri, Giovanni

Arcagioli who walked away from the scene of the crime with the bag, that

was officially found later inside the car by the police. He was accused of

theft and aiding and abetting in the crime, but was acquitted many years

later. The whereabouts of the agenda rossa is still a mystery.

Salvatore Borsellino, Paolo Borsellino’s brother said that the “agenda

rossa” included notes on meetings with “pentiti” and institutions and

elements for understanding the relationship between State and Cosa Nostra

and it could be use as blackmail against those who had compromised the

Mafia. (Lucentini, 2013)-

On 1stJuly 1992 Borsellino met Nicola Mancino, who at the time was

Minister of the Interior. Details about this meeting have never been

revealed, but the magistrate probably had annotated them in his agenda. The

problem is that Mancino denied meeting Borsellino. However, this meeting

has been confirmed by a personal diary of Borsellino and another

magistrate. Nicola Mancino is currently being involved in the trial regarding

the State Mafia Pact.( Popham, 2012).

Salvatore Borsellino, Paolo Borsellino’s brother, wrote a letter entitled 19 luglio 1992: Una strage di stato (“19 July 1992: A state massacre”). The

letter supports the idea that Nicola Mancino knows the reasons for the

Borsellino’s assassination. In this letter he asked Mancino to confess what

the subject of discussion was during the meeting with his brother in the days

immediately before his death. He was sure that meeting was the key to his

brother death. (Il fratello di Borsellino: «Mancino ora sveli perché incontrò

Paolo» 2007).

STATE CRIME OF NEGLIGENCE : a state crime of negligence is when

the State had a clear mandate or responsibility to make a situation or a

context safe ( Kauzlarich, 2005) and it did not observe it. As it has been

said, today it is not possible to define the murder of Paolo Borsellino neither

as a crime of commission nor by omission, and the reason is that the

intention of the State to kill or let him be killed has not be proved. However

it is impossible to deny a responsibility of negligence of the State. In fact,

even if the State did not commit the murder directly or intentionally, its

negligence practically lets the criminal organization act easily.

After “the Massacre of Capaci”, the State did not establish

outstanding security measures to protect Borsellino and his relatives. In

particular, the administration did not allow the procedure to remove streets

of cars in the area of via d’Amelio because, it was defined “not dangerous”,

even though witnesses said that Borsellino used to visit his mother three

times a week. Moreover the days immediately before the judge died,

residents in Via d’Amelio reported to the police that unknown people used

to stay outside the building where the mother of Borsellino lived. On 19

June the captain of ROS Antonio Subranni officially informed ( report

n.541) the Comando dell’Arma dei Carabinieri, the national department of

the Italian Carabinieri, that they had found out , thanks to collaborators with

justice, that Cosa Nostra was preparing the murder of Borsellino. On 25

June some members of Carabinieri, who were interrogating a Mafia

pentito”, the boss Gerolamo D’Anna, discovered that the Mafia wanted to

kill Borsellino by a bomb. On 13 July the ROS informed the public

prosecutors of Palermo Pietro Giammanco that the TNT to kill Borsellino,

arrived in Palermo. (Deaglio, 2012).

This historical information shows that the State was adequately informed

about the intention of the Mafia, but did not reinforce the security measures.

This negligence is particularly relevant considering that only 57 days before

the massacre of Via d’Amelio”, Falcone had been killed by a bomb

explosion.

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The public accuses against the State were strong. The widow

Agnese Piraino Leto refused the official funeral ceremony to protest against

institutions . She also revealed that her husband had told her before dying:

The Mafia will kill me, but only when someone else lets them do it” ( “mi

ucciderà la Mafia ma solo quando altri glielo consentiranno”). ( Morta

Agnese Borsellino, vedova del magistrate ucciso dalla mafia, 2013).

A few days after “the massacre of Via d’Amelio”, seventeen magistrates of

Palermo district ( eight of them were part of the DDA. the special depart for

investigation on mafia activities) signed a document in which they

resigned from their role in the DDA and they accused the public prosecutor

Giammanco and the Minister of the Interior Nicola Mancino of not

protecting enough magistrates and underestimating their actions: “The State

betrayed Borsellino through negligence and indifference, it did not avoid

the execution by Cosa Nostra of the sentence of death that was absolutely

predictable”. They said that magistrates are usually left alone, and

politicians waste time in hiding responsibility and inefficiency of

institutions, or approving symbolic laws” instead of truly fighting the

Mafia. According to their point of view “this way of behaving let criminals

act easily and incentivize Cosa Nostra to eliminate systematically those

who do not compromise”. In conclusion they thought “It is intolerable that

those who have responsibilities of negligence and incompetence are not

removed from office”. (Cerasa, 1992: p.1).

The accuses that the State did not support concretly the magistates action

against the Mafia, started before “the Massacre of via D’Amelio”. For

instance, in 1987 when the senior magistrate who headed the pool, Antonino

Caponnetto resigned to return home to Florence, he was sure that Falcone

would have been nominated in order to preserve the precedent work but

surprisingly, the CSM preferred Antonio Meli, who was not a member of

the Antimafia pool. Giancarlo Caselli, a chief state prosecutor said: “The

investigations into Cosa Nostra were shredded into a thousand pieces. No

longer were there communication and exchanges of information among

investigators….One step from victory the battle was surrendered.” (Harris,

2010).

Having done these reflection it is possible to affirm that the reasons of the

death of Paolo Borsellino can be found in the inadequate manner that the

institutions dealt with the Mafia issue.

In conclusion, on the one hand the case of Paolo Borsellino can be seen as a

crime against the State, and in particular a terroristic attack because of its

20

aim: Borsellino was only a symbolic victim to force Parliament and reach an

ideological purpose.

On the other hand it can be also considered a state crime of negligence,

because the State did not protect him enough and underestimated the Italian

magistrates’ action. Indeed the case in question cannot be illustrated as a

state crime of commission, because the State did not directly act, and neither

a state crime of omission because, even if eminent people support this

theory, it is necessary to legally prove this in trials and this has not

happened yet.

6. CONCLUSION

The purpose of this paper was to give a deep analysis of the murder of

Paolo Borsellino, by trying to move past the individual level to reach its

political and social dimension in order to interpret it as a political crime.

For reaching this aim this criminal case was shown, first as an ordinary

crime, and then as a political crime. Both of these solutions are correct, it

depends if the case is considered as an end in itself or as a means to an end.

However the second thesis represents a deeper analysis, because it considers

all the elements. Borsellino was more than a common man, more that a

common judge and more than only a limit for Mafia’s businesses. He was a

symbol of the State action against the Mafia, a symbol of legality, a symbol

of the power of the State. By killing him Mafia obtained the attention of

the Government and the population. This is the reason why this crime

cannot be simply defined as a murder but as a terroristic attack.

In particular a message has been given that there is another power in Italy:

the Mafia. This organization has its own values, interests and rules. This

organization has the power to eliminate legality from a part of the territory.

This organization has the power to expect legislative and judiciary

concessions. This organization acts as though would be impossible to

eliminate it.

In Italy Cosa Nostra represents an usual interlocutor of the institutions,

which often become victim of blackmails. However the State is not only an

offended party of this situation but also an author. In fact it is possible to

see responsibility of the State in forms of negligence in the fight against the

Mafia. The institutional mistakes in the case of Paolo Borsellino have been

shown above : they underestimated his job and did not put enough effort

into his safety. However the reasons why it was necessary for Borsellino to

21

die can be found in the general behavior of the State in the fight against the

Mafia.In particular it is possible to accuse the State of a general negligence.

In fact if the Mafia became so powerful it is because the State often

preferred to compromise with this criminal organization instead of fighting

it. The result of this way of behaving is that now Mafia has a territorial,

social, economical and political power. This is why many authors refer to it

as an ”Anti-State”.

After Borsellino’s death, the situation has not changed completely. For

instance, in 2013 Totò Riina shouted in prison that Nino Di Matteo, the

chief prosecutors, and all his colleagues, who are investigating on the State-

Mafia Pact, must die. Not immediate measures were given to these

magistrates, and Stefano Borsellino on April 2014 organized a manifestation

against the Government in order to protest for the inadequate protection

regards Di Matteo and the others. (Lamperti, 2014)

This analysis is useful to reflect what the State should do to eliminate the

Mafia. Cosa Nostra is not a common criminal organization that violate law,

it is ingrained in the Italian society and culture. Often it is accepted by

people from all social classes: a poor person of the South of Italy ,a

successful businessman, the police or even a Prime Minister. Everyone

collaborates with Mafia on one hand to avoid the conflict, and on the other

to get benefits.

In this situation, legislative interventions which established stricter

punishments are useful but not decisive. It is necessary to damage the basis

of Cosa Nostra: its social and territorial power. In many parts of Italy, Cosa

Nostra gives jobs, credit, protection, establishes rules and punishes those

who do not observe them. The absence of the State is replaced by Cosa

Nostra. This means that the State’s assignment is more demanding and takes

time.

The speech of Paolo Borsellino’s during Falcone’s funeral is particulary

relevant: “The fight against Mafia, which is the first problem to solve in our

unfortunate and beautiful land, must be not only a cold repressive action,

but a moral and cultural movement, involving everyone, especially younger

generations, the most fit to feel the beauty of the fresh taste of freedom that

sweeps away the foulness of moral compromise, of indifference, of

contiguity and, hence, of complicity”. ( Birindelli, 2012: p.1 )

22

23

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