mercoledì 25 gennaio 2012
SELF-DEFENCE AT THE CATANIA TRIAL FOR INSTIGATION AND APOLOGIA .
These Notes of self-defence are not intended to penetrate the actual points contained in articles that I am accused of in this court, elements that confirm or exclude the very existence of what, according to the Italian penal code at the present time, must be considered `instigation to commit a crime' and `apologia'. My lawyers can see to this let's say material side of things, pointing out, if the case may be, the contradictions that inevitably arise when one wants to crystalise in a deed something that claims (according to the law) to be a crime without managing to divest it of its real content of `idea expressed'. It will certainly not be me or my lawyers to undo this tragic contradiction, unpleasant inheritance of other ways of conceiving law, according to which thought is to be imprisoned within the concept (strange to it) of 'crime'. This kind of trial can happen in predictable circumstances, political sentences imposed by a way of seeing things that shows no signs of disappearing.
Because, on the contrary, I think it is useful to stimulate thought about the concepts that support the articles of the penal code that have been adebited to me, I have decided to draw up these notes, which I hope will be useful to reflect upon, if nothing else.
Let's begin with the concept of `instigation'.
It is not easy to define this concept, nor a development of theoretical analysis which was to be a foundation of its judicial `covering', as one finds it coagulated in article 414 of the penal code. In fact, with the word instigate one should mean to solicit a certain kind of behaviour from someone, pushing him from his position of quiet or at least agnostic waiting, convincing him in the sense of winning him over altogether, i.e. convincing him, having an effect on his psychological defence system to such an extent that he reaches a kind of behaviour that ends up far from his original intentions.
But I would like to add that in the very concept of instigation there is at least a derogatory valence, like a wicked action to be carried out almost in a hidden way, playing on ambiguity or intellectual arrogance or simply argumentation with the aim of taking by surprise the unsuspecting good faith of the receiver who would thus find himself practically pushed, without any means of defence, towards carrying out an action that he would never have thought of doing until then.
It might be useful here to underline two points that emerge as soon as we stop for a moment to reflect on the meaning of the word instigate: the first, is constituted of the disparity of positions between instigator and instigated, in the sense that the latter necessarily comes to find himself in a kind of effective subjection possibly due to limited knowledge of the reasons which instead the instigator levers from the height of his indisputably greater knowledge of the question, which constitutes the object, the matter of the instigation; the second is given by an objective coincidence of cause and effect which thus comes to solder the work of the instigator and the passive reception of the instigated. Now, I can understand that as the thing is a question of a legal trial one must not go too far from the limits of the law and from what was probably the intention of the legislator, so it would be beyond reach and out of place to underline how the concept itself of instigation with its ineliminable link of cause and effect, one could go for a complexive situation of the development of psychological science at the beginning of the century, today, at least, it could be submitted to a series of critical revisions given that . largely we are in possession of analyses that go further into the mechanisms on the basis of which the science of the individual and that of the group of individuals functions. But because none of these preoccupations, although real and objectively verifiable, no sooner are they affirmed with a minimum of knowledge of the question, seem to preoccupy the Olympic serenity of a law that is so out of date in time, it is well that I limit myself to that which in my opinion . . .
It is not by chance that article 414 appears in Titolo V, i.e. that concurring crimes against public order, and it is good that the law intends to defend, striking any attempt to instigate to commit a crime, in that it was thought that instigation could constitute a kind of multiplying of that which could be considered the natural criminal scope of society, its physiological level of disobeying the law. Like saying, as if the crimes people commit are not enough on their own, we must also allow some ill-intentioned people to increase these crimes by going around instigating people? A way of thinking that still persists today in some areas, but which should be submitted to a minimum of criticism, if nothing else, in the name of a well-founded doubt, which would be the following: if thieves and swindlers exist, do instigators also?
Of course instigators can also exist. In obscurity and cowardliness someone could arm the hand of a poor wretch and solicit him to commit an ignominy. But is that our case? The case the appeal court is examining? I do not think so. And if this mean figure of an instigator who solicits others to take risks while he hides his own hand is certainly possible, in fact it can be found in the multicoloured social morphology, is it not obvious that this behaviour brings with it moral condemnation, a contempt that goes beyond any judicial consideration?