There is a lot of talk these days about the resignation of the president of the Liguria region, John Toti, after a long period spent in the house arresti on charges of corruption and illicit financing. It's not in the DNA of this column to address criminal law issuesand applied to politics; but there is one aspect that is so obvious that anyone can notice it. Toti had right to presumption of innocence at least until his responsibilities had been ascertained by a judge (in his position we can also ignore the three degrees of judgment and settle for one).
With the management of house arrest, the Genoa prosecutor's office it managed to anticipate, already in the investigation phase, one of the objectives it set itself, namely the resignation of the governor although ''technically'' innocent. But if cases of aggressive entry into the political arena of the prosecutor's offices are now a consolidated practice, it had never happened until a few months ago that the judiciary investigator took on the burden of regulating the work relationships andproduction organization. Certain. Any labor dispute, any violation of workers' rights can be brought, ascertained and sanctioned by a third party judge. But until that moment there is no way that one party is right and the other is wrong.
A new trend in the field of criminal law: the Mondialpol case
The Milan prosecutor's office has discovered a new trend in the field of criminal law. And his crusade started from a 'investigation into Mondialpol, the largest private security company which was accused of gangmastering and exploitation of workers and consequently ''decapitated'' through, as required by law, judicial control. The company, for its part, took action by deciding on a substantial staggered increase for staff who served without the use of weapons, i.e. those who play the role of ushers and doormen, in public and private institutions. Having taken note of the ''workful repentance'', the prosecutor's office revoked the judicial control. After the case of the Mondialpol company (il the same treatment fell to Sicuritalia) the diligent Milanese prosecutor targeted another company in the sector, the Cosmopol, following the procedure already carried out previously: the appointment of a judicial commissioner while investigations into the crime of gangmastering and exploitation of workers were underway.
Cosmopol is a company from Campania that has almost 4 thousand employees and a turnover of 132 million euros and a profit of 6,5 million. Its staff is also employed with supervisory functions in many public and private companies of primary importance such as the Post Office, Enel, Leonardo, Fiera di Milano and the San Paolo Institute. This means that the company - like the others - has been selected in compliance with legal procedures, perhaps according to the maximum discount criterion. It is also clear that the line of conduct chosen by the prosecutor's office tends to exhaust the issue at the level of the investigations, without arriving at a judge's sentence, or rather without even referring the matter to him. The Mondialpol case was a lesson: the company decided to implement a unilateral increase in wages (in practice he paid a sort of ransom) to free himself - as later happened through the revocation - of judicial control. These questionable initiatives open a new chapter regarding the role of the investigating judiciary in the field of work.
Cosmpol was, in fact, induced to follow the example of Mondialpol to free itself - through revocation - of judicial control, thus completing the attempt to resolve the dispute during the investigation phase, perhaps with the help of the media-judicial pillory, always lurking. After all, we know how these events work: it is enough to inflate the story a little to induce the contracting companies that make use of these services to cancel the contracts in progress with the company accused of gangmastering and exploitation of workers.
In recent days (see the article by Ermes Antonucci su The paper on Friday) the Milan prosecutor's office announced the results of this singular way of ''doing justice'': 14 thousand hires, salary increases for another 70 thousand workers, recovery of 500 million in taxes.
The "war" of the Milan Prosecutor's Office against Amazon
After the security and distribution companies (DHL, GLS, Uber, Lidl, BRT, Geodis, Esselunga, Securitalia, UPS, GS of the Carrefour group and GXO), the ''avengers in robes” have dedicated to Amazon (public enemy n.1), who, according to the accusation, in the management of logistics services, in relation to the delivery of the last mile (those who carry the package), to save on work, and evade taxes, used the tried and tested system of "manpower tanks", the most widespread and which has now become the usual method. The supply of labor deemed illicit, to save even a few fractions of a cent on each package, occurs in the usual way: the contractor, Amazon, turns to more or less legal cooperatives to have delivery personnel, in this case couriers and drivers. For these reasons the Milan prosecutor's office has requested the emergency seizure of more than 121 million euros. In the case of Amazon, the prosecutor's office uses a more sophisticated motivation than in previous cases, calling into question thetax evasion which would be the objective pursued through the organization of work. Previously, especially in security companies, the judicial commissioner (which removed the management of the activity from the company) referred to a 2016 law against gangmastering.
The 2016 law against gangmastering
But how do you do it? apply that law to these cases? The profiles of the crime are evident from the first article: anyone who recruits labor with the aim of allocating it to work for third parties in exploitative conditions, taking advantage of the workers' state of need, incurs it; anyone who uses, hires or employs labour, including through the intermediation activity referred to in the previous point, subjecting workers to exploitative conditions and taking advantage of their ''state of need''. This condition makes sense if it refers - as required by law - to an illegal alien, transported at dawn, together with others, by the corporal to a tomato field. But we cannot speak in similar terms of ''state of need'' for a ''vigilante'', because with this logic, anyone who works finds himself in a state of need. We know that consolidated jurisprudence has ensured, on the basis ofarticle 36 of the Constitution, the protection of minimum wages even in the absence of an erga omnes extension of collective agreements. This is because - in the event of a dispute - the judges have always considered the remuneration of a corresponding worker to be ''proportionate to the quantity and quality of his work and in any case sufficient to ensure a free and dignified existence for himself and his family'' to what is foreseen by salary scales of the contracts stipulated by the most representative organisations. In essence, the judiciary deferred to what the social partners had signed on the basis of their contractual autonomy.
In the case of private security companies, judicial intervention went so far as to judge the adequacy of the national contract (moreover recently renewed by the trade federations of CGIL, CISL and UIL, years after the expiry of the previous one and with effect from 1 June 2023 to 1 May 2026). How else should a company registered with an association - which is entrusted with the mandate of negotiating with natural counterparties - behave other than correctly applying what they have established and signed in the contract itself? What logic can lead to criminally sanctioning a company that applies the contract or makes use of the flexibility procedures provided for? For the sake of coherence, we might as well challenge the ''fellone'' national contract rather than persecute the companies that apply it. As well as charging all members of the delegations who took part in the negotiations with complicity in the crime. Imagine what a beautiful haul!
The decision of the Court of Cassation
He thought about it Supreme Court of Cassation to armor theintrusiveness of the judiciary in labor matters, establishing in various sentences that the judge in applying article 36 of the Constitution is not bound by collective agreements or even by any law. It is a questionable interpretation that destabilizes the division of powers in a State of law and which reinforces the pan-criminal belief according to which in criminal law it is possible to ''find the legal remedy for every injustice and every evil” (Filippo Sgubbi). But at least the protagonist of this forcing is a judge through a trial, not an autonomous action of a prosecutor who works hard to resolve the case on its own, through forms that border on extortion and blackmail.
