By Chiara Coppotelli and Bianca Urbani –
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
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
Only if all these elements are explained can the thesis of this paper be made
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
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
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.
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
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
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
– Objective theories are based on the target, the context and the
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
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
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
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
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,
political purpose related to: “the entity of the State, Government structure
or political ideas, which involve the whole community”. (Garofoli, 2011: p.
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
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
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
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
5. TYPOLOGY OF THE CRIME: THE PAOLO
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
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
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
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,
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
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
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,
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
aim: Borsellino was only a symbolic victim to force Parliament and reach an
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
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
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
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
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 )
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