A Subtle Line

Chapter 2

Chapter 2

Riccardo Ferrari

“The successful person has the habit of doing the things failures don't like to do. They don’t like doing them either necessarily. But their disliking is subordinated to the strength of their purpose.”

This statement by E. M. Gray has influenced most of my life. As a lawyer and former athlete, I’ve always thought we should strive for perfection at all times. Better to aim for the stars and hit the moon, than aim for the ground and hit your feet!

It’s Monday. I wake up at 6:00 a.m., like every other day, to go and train before stepping into the shoes of the criminal lawyer.

I've become accustomed to the unsolicited sermons from the disheartened who pronounce the words “end of the line” or “failure” in my presence. Since secondary school, I've been surrounded by people who thought they knew better than me.

"Yes, well, it’s fine working out now, but wait until you enrol at university and then you'll see ..."; “You won’t have time when you’ve got to go to work ..."; "When you have a family you won't be thinking about your body any more...", if I’d listened to them I would have stopped training more than a decade ago, but I’m still here: after secondary school, after uni and in spite of work! I’m curious to see what they’ll come up with next....

The truth is that when you do something that others can’t do, you’re really undermining their world and out of fear, they attack you, belittling you. Nowadays opinions represent the cheapest goods!

I go to the room I’ve set up as my gym, accompanied by my very own personal trainer, Lucky, a tireless Brittany pup, and start throwing punches at the bag ... I often do this when I need to think about the solution to a difficult case ... I continue working out with some weight training exercises, then I go and jump in the shower before finally having my well-deserved breakfast! I’ve never understood how some people manage to skip this fantastic moment of the day: to me, starting the day without breakfast, is like driving a car without putting petrol in it.

I carefully choose a suit and tie to wear - I must say I’ve been well trained by my girlfriend, Maya, who’s abroad for work at the moment, because I was hopeless at putting colours together before - then I set off with my scooter for the law courts, a tall, glass skyscraper, criminal division, second floor.

As I wait for my turn during the long wait for the lift - I usually walk and use the stairs, but today my briefcase is filled to overflowing - I remember when I was still a new trainee lawyer and, intimidated, about to get to know this world with my first senior partner: an elderly lawyer straight from the pen of a Neapolitan theatre director of the last century; a very colourful Neapolitan lawyer who confused improvisation with procedure and imagination with rhetoric.

In the lift, filled to over the maximum permitted limit, I listen to the conversations of lawyers and the many pettifoggers who every day crowd the corridors of this immense building.

I observe the non-verbal body language: a good criminal lawyer must also be a talented psychologist. I listen to two trainee lawyers moaning about the qualifying exams and my mind goes back to my own legal practice when I too went under the examiner’s axe in my bar exam. A way for the Bar Council to control the world of work and their subordinates.

I enter the courtroom before everyone else: I’ve never managed to be first on the list of hearings even when I entered with the service staff and, as usual in the Naples courts, I find lawyers listed at the top of the case list, who are obviously not present...

I’ve always wondered what the secret is behind this gift of ubiquity! Lawyers still under the sheets who, with the power of visualization, are listed before anyone else ... I put myself down in fourth place. I sit in the second row, to leave the seats in the front row for the ghost lawyers "listed" ahead of me and start reading a book by my favourite author, which I providently placed in my briefcase so as not to get bored: “The runaway jury” by John Grisham.

Around 9:30 a.m. the Judge returns from the coffee shop, wearing his gown and finally, after more than an hour’s wait, in a room full of people, what with journalists and prisoners’ relatives, the curtain rises and the show begins.

The first two cases are simple postponements due to the absence of witnesses and an impediment of the defence lawyers: in other words, a way of delaying the case for as long as possible hoping either for help from the time barring period or from a pardon from some member of parliament mindful of the needs of defendants. The third case, on the other hand, represents a break in the morning’s monotony. The main witness for the prosecution is being questioned, a plaintiff who can neither express himself well in Italian nor articulate his speech in a clear manner, leading the judge to have to act as interpreter!

Finally, after a further five minutes’ stay in proceedings, my case begins. I’m ready.

I’ve studied a lot for this case. It’s a smuggling crime committed by two off-duty service personnel. The press and television have spoken about it for days and a victory would greatly increase my popularity ... and with it my fee.

I don my gown and reread my notes on the most important passages of my closing statement.

My thoughts and concentration are interrupted by the judge’s thundering voice:

‘The parties are invited to submit their final pleas, the word to the Public Prosecutor’.

‘Based on the records and evidence submitted during the hearing, we believe the criminal responsibility of today’s defendants has been established, so we are asking for a prison sentence of three years and a fine of twenty thousand euro!’. That’s the Public Prosecutor’s summing up, overly hasty and full of himself.

A clamour of voices rises from the farthest corners of the courtroom. The judge orders silence.

The sentence sought by the prosecution is exemplary and also a real headache, as we are outside the period for a suspended sentence, granted for sentences of up to two years.

‘Mr Ferrari, please go ahead’, the judge urges me.

I stand to speak.

I get an adrenaline rush, but experience quickly takes over. Everything vanishes: public, client, judge, Public Prosecutor. Only my speech exists and I must deliver it with the best intonation to get straight to the Judge.

‘Your Honour, I would like the court to reach a considered and correct decision, as you have accustomed us to expect’. A small trick of the trade! A little flattery to ensure that the person who should be impartial leans slightly more in your favour...

‘What I am about to suggest is a draft ruling that brings the truth of the case to light, through the historical facts in relation to the changes in the law over time.

The facts are well known, not least because of the prominence given to the story by the media. Following checks in the area, the off-duty servicemen Leone and Grosso were detained by Judicial Police officers because they had been seen transporting large boxes from the boot of one car to another. When searched they were found to be in possession of a large quantity of cartons of cigarettes and large sums of money.

Your Honour, as service personnel, the defendants were both in possession of a badge that allowed them to buy duty-free cigarettes at the NATO command. My Lord, before I even go into the merits of the matter, I am pleading a violation of constitutionality in relation to the rules governing the crime of smuggling and the sale of tobacco products without a license’.

I observe the Judge’s expression, he probably didn’t like that, matters of constitutionality are meant to be submitted before the hearing, to give the judge the opportunity to study them carefully, but in this case I didn’t have time. I'm making him work too much and he doesn’t like that. But I have to continue…

‘Indeed, the rules in question were created under the auspices of an age that was still the product of an authoritarian and master state. The current criminal code, the Rocco code, was created as a repressive code, attentive to the needs of the state, which sought to encompass as many crimes as possible under the umbrella term criminal acts. In fact, crimes against the person are included after crimes against the State and the law of the land!

With the arrival of the Constitution that vision changed radically, protecting the person first and foremost!’.

The judge is no longer looking at me, a visible sign his attention is waning or he is simply lost in his own thoughts. I pause, just long enough for the judge to start looking at me again, then I continue speaking, I’m almost at the crucial point now….

‘The rules which punish the crimes of smuggling or selling tobacco without a license with imprisonment or arrest, are aimed at nothing other than protecting the State’s primary interest, seen as the payment of the State monopoly tax. These rules were made under fascist rule, in 1942, or in the years immediately following it, but still conditioned by those ideologies!

To deprive the present defendants of the sacrosanct right to personal freedom, solely because they did not pay the State monopoly tax, would be unconstitutional and would represent a return to the Roman "nexus", that heavy burden that weighed on a debtor of being enslaved by a creditor in case of insolvency.’ I’ve got through to him. Not only is he looking at me intently now, but his body language gives the distinct impression I’ve won him over... brilliant! My speech continues. I’m really fired up now, my adrenaline is through the roof, but I need to focus.

‘This defence likewise pleads the violation of the requirements of peremptoriness and certainty of the criminal law that punishes smuggling crimes. The law must be clear and precise in its dictate, otherwise it would not fulfil its purpose to amend: if a person does not fully understand what is lawful and what is not, he will not understand the criminal disvalue of his actions and so his punishment will serve no purpose. The compulsory nature and certainty of the rule referred to in Article 291 bis, for which Leone and Grosso are present before you today, is to be found in the precise identification of tobacco manufactured abroad. We have to identify exactly what is smuggling and what is not!’.

So now that I’ve really caught his attention, I need to gain points in my favour.

‘Further regarding the merits, your Honour, allow me to remind myself…’, another little trick when you want to tell the judge something without hurting his feelings, ‘…that with the birth of the common market for the movement of goods and capital the old definition of state borders ceased to exist.

The European Convention specifically envisaged a common European area and nowadays it’s possible to trade in goods at European level without having to pay customs duties any more. So true is this, that the crime of smuggling can only exist in respect of non-EU goods which are subject to border rights. If there are bilateral agreements in place, under which border rights are not due, there is no crime and the individuals will be exempt from punishment. It seems obvious that buying cigarettes inside the NATO command is equivalent to buying them within the European Community!’

The judge glares at the Public Prosecutor … I’m buzzing!

‘What we wish to highlight here is the speciousness of the count of indictment. In fact, it’s clear we are faced with a different situation to the classic smuggling envisaged by the rules referred to in Article 291 bis of the decree on smuggling, with the effect of punishing the defendants for a crime they did not commit!

One last point before I conclude, Your Honour. We should not be shocked by the large amount of tobacco and the sum of money found on the defendants because they only went to buy the incriminated cartons of cigarettes occasionally and, once there, they also bought the ration they were entitled to before then.

Moreover, the cigarettes they bought came from Switzerland and there are specific agreements between Italy and Switzerland for the transport of goods. So, the tobacco was not to be considered as manufactured abroad!’

Now the Judge’s gaze turns to the defendants, the wrinkles on his forehead show he’s no longer scowling. I’m reaching the end of my closing speech…

‘In conclusion, the defence for the defendants asks for the immediate release of the cartons of cigarettes and cars owned by the defendants, their full acquittal pursuant to Article 530, first paragraph, of the code of criminal procedure, because there is no case to answer, in the alternative their acquittal because their conduct is not a criminal offence.

In the unlikely event of non-acceptance of the defence's requests, we ask for the minimum sentence and the application of the benefits provided by law: expungement of the conviction in the criminal record and a suspended sentence. Thank you, I have finished.’

I’ve done everything possible. I’m exhausted! In the days before my closing statement I’d studied for hours, late into the night, to find a breach in the Prosecutor’s accusations. Then the evening before the hearing I’d had a brilliant idea: smuggling relates to tobacco manufactured abroad and if the cigarettes had been purchased in the European Union or another country with specific agreements on the matter with Italy, the crime would be dropped with all due respect for the prosecution!

Now we just have to wait for the judge to leave his chambers and hand down his decision.

I leave the courtroom and make my way to the coffee shop, fleeing the reporters’ microphones because I need to be alone.

While I’m standing at the counter sipping my coffee I hear my mobile phone ring: ‘Mr Ferrari where are you? The judge has already come back, hurry!’, warrant officer Leone tells me. If the judge has returned this quickly it means he already has a ruling in mind and usually that doesn’t bode well. I run down the stairs and into the first open lift I see. As soon as the doors of the lift open, I dive into the courtroom zigzagging between public and journalists, I’m just in time.

‘In the name of the Italian People, having read Articles 523 et seq. and Article 350 of the code of criminal procedure, I declare the defendants acquitted because there is no case to answer and order the immediate release of the goods from seizure by the Public Prosecutor’s office’.

I’m trembling with happiness, I can’t believe my ears. Leone and Grosso immediately throw their arms around me, while the sound of their relatives crying and the loud chatter of reporters can be heard in the room … I’ve won! Success awaits me now!