“The offence does not exist” (il fatto non sussiste). With those words, Italy’s Corte Suprema di Cassazione has righted a grave injustice done to Fabio De Pasquale and Sergio Spadaro.
The two Milan prosecutors were charged with withholding evidence that bore on the credibility of a key witness in their bribery prosecution of oil giants ENI and Shell. By failing to make it available to the defence, the charge went, they had committed the crime of refusing to perform official duties.
From the outset the case looked, as the decision says, “deeply flawed” and “legally untenable.” Some of the material merely repeated what was already in the record, some was of doubtful reliability, and some the defense counsel acknowledged they already had. Many assumed the charges were brought to stop the two from appealing the trial court’s acquittal (despite strong evidence of wrongdoing). Insiders expected that once a new prosecutor took over the appeal (who then promptly dropped it – leaving defendants scot free) – the charges would be dismissed.
They were not. To the surprise even of some involved in the initial investigation, the case went to trial, De Pasquale and Spadaro were convicted, and the Brescia Court of Appeal upheld the conviction.
Italy’s Supreme Court has now vacated it. It held that neither of the statutes the lower courts relied on in finding the two guilty obliged them to disclose the material, and it called the appeal court’s reasoning “assertive and one-sided.” The conviction was quashed on the ground of il fatto non sussiste. That is the strongest formula available, and it generally carries the greatest preclusive effect in any later civil or disciplinary proceedings.
The case has done great harm not only to De Pasquale and Spadaro but to the reputation of the Italian judiciary. Will those in power now act to repair the damage, both to the two men and to the system itself?
The decision (in Italian) is here; an English translation by DeepL Pro is here.
