Rebecca Inzaghi, Carlo Lunardelli, Javier Marbán, Enrico Pedrotti

The Italian transition after the Second World War

Table of contents

Introduction 2

Section I: historical context 3

Section II: the criminal prosecution (1944-1946) 10

Section IV: interpretation and application of the amnesty 15

Section V: the evaluation of the transitional period 20

Conclusion 25

References 27

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THE ITALIAN TRANSITION AFTER THE SECOND WORLD WAR

Introduction

During the 20th century, Europe experienced two world conflicts which caused

thousands of deaths and the destruction of entire regions of the continent, and several

totalitarian or authoritarian regimes ruled different countries for decades. The intervention of

the Allies and the Soviet Union during the Second World War determined the defeat of Hitler’s

regime in Germany and that of Mussolini in Italy, while it is only in the seventies that Spain,

Portugal and Greece turned into democracies. In Eastern Europe, after the fall of the Berlin

Wall and the dissolution of the Soviet Union, a significant number of States has found the path

towards democracy. In each of these countries the transition from an authoritarian regime into

a new form of State has been a challenge for the complex pattern of historical, political, social

and legal issues to be addressed.

The Italian case is worthy of attention for a series of reasons; inter alia, in that period

Italy became a Republic for the first time in its history and a new Constitution was adopted. To

understand the Italian political history of recent times, it is still crucial to go back to those years

and clarify why after twenty years of a fascist dictatorship and a disastrous war the Italian

society has been so (self-)indulgent towards its past and those responsible of its tragedies. Our

purpose is to analyze this period through the lenses of transitional justice and to understand

whether the Italian transition is sufficient or deficient in terms of justice, reparation, truth and

guarantees of non-recurrence.

After outlining the historical context in Section I, in Section II we will focus on the

period that goes from 1944 to 1946 when a strong political will led to the prosecution of political

crimes committed by fascists. After the end of the war and the election of the Constitutional

Assembly, the judicial policies changed drastically and the Ministry of Justice Palmiro Togliatti

proposed an amnesty. In Section III we will discuss his intentions and the approved text. The

broad interpretation of the decree by the judiciary (Section IV) led to widespread impunity and

2
THE ITALIAN TRANSITION AFTER THE SECOND WORLD WAR

had deep consequences on the acknowledgment of what had happened during the fascist

decades. In Section V we will evaluate the Italian transition, underlining its significant

weaknesses.

Section I: historical context

The beginning of the Fascist era in Italy is conventionally set on 28 October 1922, day of

the March on Rome, a demonstration organized by the National Fascist Party (Partito Nazionale

Fascista - PNF) 1 consisting of an armed march on the capital, in order to claim the political

leadership from King Vittorio Emanuele III2. Two days later, the King formally asked Benito

Mussolini to form a government, conceding Mussolini to seize power. Although Mussolini

came to power with a coup, fascism is considered officially constituted as an authoritarian

regime only on 3 January 1925, with Mussolini's speech in the Chamber of Deputies in relation

to the Matteotti murder 3.

During these two decades (the so-called ventennio fascista) PNF took control of the

national institutions and abolished fundamental freedoms and rights in Italy, fully supporting

the ideology of racism. The promulgation of racial laws from 19384 to 1943 is common

knowledge; a lesser known fact is that discriminatory laws (e.g. Law 6 July 1933, n.999

1
Italian political party founded in Rome on 9 November 1921 by B. Mussolini from the organization Fasci Italiani
di combattimento.
2
Vittorio Emanuele Ferdinando Maria Gennaro di Savoia, king of Italy since 29 July 1900, was born on 11
November 1869 in Naples. During the Second World War he acquired also the titles of Emperor of Ethiopia and
King of the Albanians.
3
“On 30 May 1924, Matteotti addressed a ringing denunciation of the Fascist Party to the Chamber. Less than two
weeks later (10 June) six Fascist squadristi kidnapped Matteotti in Rome, murdered him, and hastily buried his
body outside the city near Riano Flaminio.” (‘Giacomo Matteotti’, 2019)
4
“The Fascist government issues a series of provisions regulating, with separate bills, the exclusion of foreign and
Italian Jews from the school, the academia, politics, finances, professional world, and all sectors of public and
private life. Italian citizens of the Jewish religion were no longer allowed to attend school and marry non-Jew, to
be drafted in the Army, to own or administrate firms, to own or administrate land and real estate over a certain
value, to hire non-Jewish employees, to be hired in the public administration, by political parties, banks, insurance
companies, newspapers, publishing houses, artistic, research, and educational institutions. The public agencies in
charge of census and demographic records become part of the government task-force for the “defense of race.”
(‘The Italian Racial Laws – Centro Primo Levi New York’, 2011)

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THE ITALIAN TRANSITION AFTER THE SECOND WORLD WAR

Ordinamento organico per l’Eritrea e la Somalia) had already been imposed regarding the

African colonized countries. Numerous internment and concentration camps were built not only

in Italy (‘I Campi Fascisti - Dalle guerre in Africa alla Repubblica di Salò’, n.d.), but also long

before in the colonies (e.g. Danane concentration camp in Somalia, where the victims amounted

to 3175) (Sbacchi, 1977).

In fact, Mussolini’s government promoted the imperialist ideology and consequently

increased the colonial effort perpetrating infamous atrocities against innocent people overseas,

such as, among others, the Addis Ababa massacre and the Debrà Libanòs massacre (the latter

constituted the first extermination of a religious community of such proportions in African

history) (Del Boca, 2005, 103), etc.5

Finally, Mussolini brought the country into the Second World War with disastrous

consequences both at national and international level; in particular war crimes and debacles

were constants in the Italian military campaigns (the most hard-fought battlespaces included

the campaigns in Greece, Albania, Yugoslavia, the Soviet Union and Tunisia.) (Del Boca,

2005).

On 25 July 1943, after a series of military defeats and the landing of Americans in

Sicily6, the Grand Council of Fascism voted a motion of no confidence (known as Ordine del

giorno Grandi) against Mussolini. They arrested him and urged the King to appoint a new

government. In fact the Statuto Albertino7 was rediscovered and with it the fundamental article

5, which reserved the executive power to the King alone, declaring him to be the “Supreme

Head of the State”. Therefore, Vittorio Emanuele III chose Pietro Badoglio8 , a trusted general

with fascist background: a new government was born.

5
See also Kirby, 1989
6
The so-called Operation Husky began during the night of 9 July 1943.
7
Constitution conceded by Carlo Alberto to the Kingdom of Sardinia in Italy on 4 March 1848.
8
Pietro Badoglio was born on 28 September 1871 in Grazzano Monferrato, Italy. In Ethiopia he commanded his
soldiers to use sulfur mustard (i.e. mustard gas) against the Ethiopian armies and to bomb the Red Cross. For
further details see Pankhurst (1997 and 1999).

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THE ITALIAN TRANSITION AFTER THE SECOND WORLD WAR

As a result, the liberal institutions provided for in the Statute were recovered and the

political and constitutional structures were de-fascistized. Between 29 July and 2 August, law-

decrees trying to eliminate the fascist constitutional system were adopted. The Special Court

for the defense of the State was suppressed: it was undoubtedly one of the most odious and

effective tools of the dictatorship, its activity was widely publicized, and together with its

threatening shadow it contributed to distract many opponents of the regime from a concrete

action against it (Aquarone, 2003, p. 103). Its task was to punish activities that did not conform

to the fascist will. PNF was dissolved too and, with it, the whole related vast system of fascist

organizations (youth’s organizations, workers’ organizations, women’s organizations, etc.). On

5 August 1943 the XXX legislature was declared closed. In 1939, the Chamber of Deputies had

been replaced by the Chamber of Fasci and Corporations which was then dissolved. As a result,

the legislative power was ad interim attributed to the government. The Grand Council of

Fascism itself was also dissolved, thus paving the way to calling elections at the conclusion of

the war.

In the meantime in Sicily, the Anglo-American army created the Allied Military

Government of Occupied Territories 9 (AMGOT10 ) (Neufeld, 1946). This government started

the vetting action in Sicily, initially aiming at persecuting only those fascists still dangerous to

the public order: within a few months, thousands were arrested or subjected to purge measures

by the judicial and administrative bodies set up for this purpose. However, the municipal

officials at lower grades of the local administrations were largely maintained and they could

continue to perform their duties.

After the conquest of Sicily was completed, the Allies started their advance against the

German occupation and negotiated with Marshal Badoglio’s government the conditions of the

9
See also (Allied Forces. Army Group 15th, 1945)
10
“Name shortened to AMG after it was discovered that AMGOT was an unprintable word in Turkish [i.e. am
göt (writer’s note)]” (Marjorie Taylor, 1948, p.19)

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THE ITALIAN TRANSITION AFTER THE SECOND WORLD WAR

Italian surrender. Armistice of Cassibile 11 was signed on 3 September 1943, but it was agreed

to keep it undisclosed until the Allied invasion of Italy was well under way. It was finally

proclaimed by Badoglio five days later, only after General Eisenhower had already

autonomously announced it: the Voice of America from Radio Algiers, in compliance with the

terms of the agreement, broadcasted the proclamation of Eisenhower on the armistice at 6.30

p.m., the news immediately bounced from the American and English broadcasters to the

suspicious and surprised Germans, who could not find confirmation of the armistice (Isola,

1996). The Italian armed forces were then in disarray both at home and abroad, where the worst

tragedies took place (e.g. Cephalonia Massacre).

The dawn of 9 September the King and the government, Badoglio included, abandoned Rome.

They headed first to Pescara and then to Brindisi. This controversial event gave birth both to

the Regno del Sud and to the National Liberation Committee (CLN). In fact on the same day in

Rome, that was abandoned to the Germans’ fury, the Committee of the opposition, faced with

the most dramatic situation, approved the following motion: “At the time when Nazism is trying

to restore its fascist ally in Rome and Italy, the anti-fascist parties form a National Liberation

Committee, call on the Italians to fight and resist to give Italy the place it deserves in the

assembly of free nations” (Astengo, 2018).

At the signing of the so-called long armistice (Malta armistice, 29 September 1943) the

AMG was in charge of the administration of the whole Italian territory freed from the German

occupation, except Sardinia and some south provinces that were assigned by the Allies to the

Kingdom of the South.

As a consequence, Italy was then split in two parts:

11
Anthony James Nicholls (1974, p. 76) defined it “the crooked deal”.

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THE ITALIAN TRANSITION AFTER THE SECOND WORLD WAR

- in the north the Italian Social Republic (RSI)12: a satellite Nazi state formally led by

Mussolini, who had been rescued by German paratroopers in the operation Eiche 13 ;

- in the south the new government was starting to address the legacy of the Fascist Regime

while cooperating with the Americans.

In December 1943, the first decree was adopted (Royal law-decree 28 dicembre 1943

n.29B “Defascistizzazione delle amministrazioni dello Stato”). In this decree it was foreseen

that special Purge Commissions removed subjects who were entangled with fascist regime from

their offices and declared them suspended. These persons had to fill in special questionnaires

that contained detailed information on their accounts and work during the ventennio. The

government then arranged to appoint a High Commissioner centrally with the task to judge

them.

Since February 1944, with the return of the territories to the Badoglio government,

subjected however to the supervision of the Allied Control Commission (ACC), AMG’s

competence was restricted to Naples, to the areas near the conflict frontlines and those of

military interest. With the advance of the allied troops, in many cities of liberated Italy

(especially in the north) the AMG had to deal with the increasingly structured political and

administrative presence of the local CLN representatives. CLN demanded the immediate

abdication of the King, considered responsible for the disasters of the country, and the formation

of a government with the participation of the six founding parties14 with tasked with preparing,

with guarantees of freedom, the convocation of the Constituent Assembly as soon as the war

would have ended. Thus, the prospect of restoration of Statuto Albertino was lost.

12
The so-called Repubblica di Salò was constituted on 23 September 1943.
13
The footage of the rescue of B. Mussolini is available on YouTube (La liberazione di Mussolini a Campo
Imperatore, 1943)
14
The Italian Communist Party, the Italian Socialist Party, the Christian Democracy, the Action Party, the Labour
Democratic Party, the Italian Liberal Party.

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THE ITALIAN TRANSITION AFTER THE SECOND WORLD WAR

Palmiro Togliatti15 returned to Italy in March 1944 and proposed a compromise to the

Sovereign (the so-called Svolta di Salerno). Vittorio Emanuele III would retire without

abdicating and his powers would be entrusted to his son Umberto16, who would assume the title

of Lieutenant of the Kingdom. This pact entered into force after the liberation of Rome (4 June

1944): the Badoglio government ceased operations and the first Bonomi17 government was

appointed in a joint perspective between the six parties. The political agreement was

rationalized in the Lieutenant’s law Decree n. 151 of 25 June 1944, the so-called first

provisional constitution of the new state.

The convocation of the constituent assembly was envisaged to deliberate the new Constitution

of the State, in full recognition of the equal dignity of the political parties.

Contemporary events were the progressive liberation of Italy from the south to the north

by the Americans and the emergence of resistance groups in the north. The partisan formations

were various, each an expression of a political party, and not directly linked to the government

of Rome. In fact, an autonomous CLN was established in the north of Italy.

On 25 April 1945, the two areas were finally returned to be a single State. After he had known

that «the Nazis had begun negotiations for an unconditional surrender, Mussolini stormed out

of the palace and fled Milan [...], he donned a German Luftwaffe helmet and overcoat, but the

disguise did little to save him when partisans stopped the convoy at the lakeside town of Dongo

on April 27. For 20 years, Mussolini had built a cult of personality with his image emblazoned

on posters and newspapers. Now, the familiarity of his distinctive shaved head and granite jaw,

even in disguise, did him in» (Klein, 2015). On 28 April, Mussolini was killed and his corpse

desecrated by civilians in Piazzale Loreto in Milan. Finally, the sign of the written agreement

15
Palmiro Michele Nicola Togliatti was born on 26 March 1893 in Genoa.
16
Umberto Nicola Tommaso Giovanni Maria di Savoia, born in Racconigi, 15 September 1904.
17
Ivanoe Bonomi, born in Mantua on 18 October 1873.

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THE ITALIAN TRANSITION AFTER THE SECOND WORLD WAR

formalizing the surrender of German forces in Italy, thus ending the Italian Campaign of World

War II, occurred on 29 April 1945 (surrender of Caserta).

On 10 December 1945, after the brief experience of the Ferruccio Parri government, the

first De Gasperi cabinet was designated. Thanks to De Gasperi, who had good relations with

the Anglo-American council, the second provisional constitution of the Republic, integrating

the first one, was promulgated (Lieutenant’s legislative Decree n. 98 of 16 March 1946).

On 9 May Vittorio Emanuele III abdicated in favor of his son (who then became

Umberto II King of Italy) with the intention of regaining Italian citizens’ trust with a view to

the institutional referendum. The abdication was clearly in contrast with the first two

provisional constitutions, which provided for the maintenance of the existing regime until the

electoral consultation for the election of the Constituent Assembly.

Finally, on 2 June 1946 the institutional referendum was held, with the inclusion, for

the first time in Italian history, of women’s suffrage and the result was the affirmation of the

Republican form of State. The Savoy family left Italy. The Constituent Assembly became

operative on 25 June 1946 with the tasks to draw up a Constitution, elaborate electoral political

laws of the Parliament, ratify international treaties and deliberate on the legislative provisions

submitted by the government.

Each party had its own constitution draft, the idea of the others was known and the need

for a compromise was felt: the Assembly would have decided on the basis of a project drawn

up by a special commission composed of 75 deputies who would have represented the

numerical strength of the representatives in the Assembly (556 deputies).

The Constitution of the Italian Republic was promulgated on 27 December 1947 by

Enrico De Nicola, the provisional Head of the State who had been elected by the Constituent

Assembly. He became formally President of the Republic only on 1 January 1948, when the

Constitution came into force.

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THE ITALIAN TRANSITION AFTER THE SECOND WORLD WAR

Section II: the criminal prosecution (1944-1946)

In the period between 1944 and 1946, the Italian government, formed by CLN’s parties,

adopted a series of acts, namely Lieutenant’s legislative decrees, introducing criminal offenses

against the fascists and establishing ad hoc special tribunals or special chambers within ordinary

criminal courts to try them. It is necessary to consider that, when these acts were approved, the

internal fascist enemy had not been defeated and a violent conflict was ongoing in the centre-

north of the country. Therefore, the criminal policies of this period have a strong political and

symbolic value and aim to identify the “enemies” of the renewed State (Seminara, 2014, p. 7).

The first important legislative act which introduced specific criminal offenses was the

Lieutenant’s legislative Decree 27 July 1944, n. 159 entitled “Sanctions against the Fascism”.

Per article 2, the members of the fascist government and the fascist hierarchs, responsible for

abolishing the constitutional rights, suppressing the popular freedoms, establishing the fascist

regime, betraying the Country led into the current catastrophe, are punished with life

imprisonment and, in most serious cases, with death.

Article 3 casted a new light on the historical events that led Mussolini to take power in

the 20s: organizing fascists squads, which committed acts of violence or devastation and

promoting or directing the insurrection of 28 October 1922 was included in the crime of

insurrection (art. 120 of the 1889 criminal code) and promoting and directing the coup d’etat of

3 January 1925 or contributing with relevant deeds to keep in power the fascist regime was

considered to fall in the scope of art. 118 of the criminal code, punished from 12 to 21 years of

imprisonment.

Article 5 dealt with what happened after the armistice: the provision extended the

applicability of the military criminal code of war to whoever, after the 8 September 1943,

committed crimes against the loyalty and the military defense of the State by whatever form of

10
THE ITALIAN TRANSITION AFTER THE SECOND WORLD WAR

complicity, correspondence, collaboration with the German invader, of help or of assistance

given to them. The offences of “help to the enemy” (art. 51) and “complicity or correspondence

with the enemy” (art. 54) were punished with the death penalty by the military criminal code

of war and art. 5 extended their scope also to civilians.

Articles 2 and 3 concerned acts committed during the fascist era and, according to Barile

and De Siervo (1969, p. 545), are an example of “criminal responsibilities of constitutional

level” or “political justice”. Instead, the different conduct of collaborationism is incriminated

by article 5. From a technical point of view (Seminara, 2014, pp. 10-14), the provisions were

drafted in such a way that the judiciary had a lot of discretion and was able to interpret them

restrictively.

The Lieutenant’s legislative Decree 22 April 1945, n. 142 introduced a iuris et de iure

presumption of collaborationism for those who hold a series of public offices in the Italian

Social Republic. However, the Roman Cassation Court (inter alia, Cass., 17 aprile 1946,

Dinale) required the special intent of loyally serving the RSI and de facto it vanished the

existence of the presumption in a lot of cases (Seminara, 2014, pp. 19-21).

In coherence with a quite complex system, the criminal proceedings concerning the

aforementioned offenses were brought before ad hoc courts. For the crimes defined at art. 2 of

the L.l.d n 159/1944 the High Court of Justice had exclusive jurisdiction and its decision could

not be appealed to the Cassation Court. The High Court was not an ordinary Court in the Italian

judicial system but a highly politicized special tribunal whose nine members were appointed

by the Council of Ministers among judges and other morally uncorrupted citizens. Besides the

High Court, a series of decrees of 1945 established the Extraordinary assize courts, composed

of both professional magistrates and lay judges, and a special chamber of the Cassation Court

with its seat in Milan. Their jurisdiction covered all the offenses defined in the L.l.d n. 159/1944

and, even though their activity lasted less than a year, their judgments are significant for their

11
THE ITALIAN TRANSITION AFTER THE SECOND WORLD WAR

coherence with the spirit of legislator and for the high number of convictions (Seminara, 2014,

p. 17). Statistics show that the criminal prosecution reached its maximum intensity in 1945.

Woller (2008, p. 573) affirms that before the Assize Courts, between 1945 and 1946, an

enormous amount of trials (between 20.000 and 30.000) was held and that no other European

country was so fast and motivated to reinforce the principle of the rule of law. Furthermore,

Dondi (1999, p. 48) adds that the Assize Courts celebrated the highest amount of trials: 5945

convictions, 259 of them represented by death penalty or life imprisonment, while, according

to Dal Pont (1976, p. 548) the special chamber of the Cassation delivered 4596 custodial

sentences; among them 42 death penalties (31 executed) and a total number of 22.735 years of

imprisonment.

This period of criminal prosecution drew to a close at the end of 1945: the special courts

were gradually abolished or modified in their composition and the Cassation Court in Rome

reacquired its full jurisdiction by virtue of the L.l.d. n. 625/1945. The Roman Supreme Court

started to change the interpretation of the L.l.d n.159/1944, giving a restrictive reading of all

the offences defined in it and de facto leading to a progressive disapplication of those

provisions. Facts falling under article 2, defining the offence of creation of fascism, the most

political one, were often degraded to the crime of relevant deeds (art. 3), which was less severely

punished. Furthermore, in these cases the Cassation required a “particular causal efficiency” of

the conduct in order to be subject to punishment. Moreover, article 5 (collaborationism)

suffered a restrictive interpretation, as the Cassation concluded that being member of the Fascist

Party or the paramilitary blackshirts was not enough and an “extended participation” in their

collective activities was required (Donini, 2009, pp. 24-26).

This new approach of the Cassation Court led to a radical change of paradigm that would

be followed very soon also by the political power.

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THE ITALIAN TRANSITION AFTER THE SECOND WORLD WAR

Section III: the Togliatti amnesty

The turning point in the political scenario coincided with the proclamation of the

Republic on 2 June 1946. Palmiro Togliatti, Minister of Justice and Secretary of the Italian

Communist Party, was convinced that it was appropriate to make an act of clemency and

presented the amnesty as a necessary measure to “steer the country swiftly to a state of political

and social peace” (Franzinelli, 2006, p. 310). Far from being acts of weakness of the winner,

traditionally amnesties represented self-affirmations of an emerging political power and were

adopted when the new regime was stable and strong enough to show clemency to the defeated

enemy.

The explanatory memorandum of the Ministry (Togliatti, 1946) is very useful to clarify

what is the purpose of the amnesty according to Togliatti and more broadly to the entire CLN.

Referring to political crimes, the memorandum explains that clemency is justified only for less

serious acts, or carried out by people who were not in charge of high functions; it would not be

admissible for the most serious cases and when acts are performed by persons in charge of

elevating functions, otherwise the contrast with the popular conscience and with the very

principles of equity would have been unbearable. There is indeed a need not only for judicial

and political, but also for moral justice, for which those who committed crimes, whose traces

are far from being canceled, against the country betrayed and brought to ruin, against

democratic freedoms, against their fellow citizens, or against the most elementary duties of

humanity, they must continue to be punished with all the rigor of the law. We can consider this

memorandum as expressing the Italian government’s official position on the transition: the

amnesty will lead to political and social peace as long as the most serious offences and those

committed by high officials are excluded from its scope; otherwise, on the contrary, it would

contribute to rekindling hatreds and resentments with certainly unfortunate consequences for

all.

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THE ITALIAN TRANSITION AFTER THE SECOND WORLD WAR

The final text, contained in the Presidential Decree 22 June 1946, n. 4, was approved

with a structure of 16 articles: they covered ordinary crimes, political crimes committed by

fascists and political crimes committed after 8 September 1943 by anti-fascist forces.

Article 1, entitled “Amnesty for crimes in general”, granted amnesty for every crime

punished with a maximum imprisonment of less than five years. Without any limitation on what

type of crimes shall be included under this article, we find the first signal of the “poor grasp of

legal language”18 (Dondi, 1999, p. 61).

With article 2, entitled “Amnesty for political crimes committed after the liberation”,

the amnesty was granted for political crimes committed after 8 September 1943 in the part of

the Italian territory already freed from the German occupation. The rationale of this article was

to extend the clemency to act committed by partisans also to facts not covered by previous

amnesties, such as the decree of 5 April 1944 n. 96 “Amnesty and general pardon for common,

political and victualling crimes” which had covered actions committed during the fight against

the German occupation and the legislative decree of 17 November 1945 n. 719 “Amnesty for

anti-fascist political crimes” which had given pardon to anti-fascists for political crimes

committed during the fascist regime.

Without giving a definition of political crime, this article shows the ambiguity of the

Togliatti amnesty. The complex notion of political crime was susceptible to multiple

interpretations and expanded the discretion of the judiciary (Franzinelli, 2006, p. 51 and

Saporito, 2018, p. 301).

Article 3 of the Presidential Decree (Amnesty for other political crimes) was the core of

the act as it consisted in an ad hoc provision for fascist crimes. It provided amnesty, with some

significant exclusions, for offences introduced and defined in the aforementioned decrees of 27

18
Togliatti was not a lawyer, nevertheless he wanted to write the text of the decree himself and there is who
suggests that he was misguided by some officials of the Ministry (Secchia and Collotti, 1979).

14
THE ITALIAN TRANSITION AFTER THE SECOND WORLD WAR

July 1944 n.159 and 22 April 1945 n.142 19 and for all the connected offences pursuant to article

45 n. 2 of the criminal procedural code.

In the opinion of the legislator, it was imperative to exclude the impunity in a series of cases

listed in the same article. The amnesty was thus excluded when the offences:

● were committed by persons holding civil, political or military high functions;

● entailed facts of massacre;

● particularly cruel brutality;

● murder;

● pillage;

● or were committed for profit.

The decree, from article 8 to 10, contained also a general pardon for both common and

political crimes by which the death penalty was commuted in life sentence (but the

aforementioned exceptions applied), the life sentence in 30 years or imprisonment, all other

penalties above 5 years were reduced by one third and the ones of less than 5 years completely

pardoned.

Section IV: interpretation and application of the amnesty

After having presented the text of the amnesty decree, it is necessary to describe how

the judiciary interpreted and applied it; in reality, the law in action was very far from what the

legislator had in mind when the decree was adopted.

As already mentioned, in the prosecution of political crimes committed by fascists,

lower courts, particularly the Extraordinary Assize Courts, were coherent with the spirit of the

19
It therefore referred to the crimes of: 1) organization of fascist squads; 2) promotion and direction of the
insurrection of 10/28/1922; 3) promotion and direction of the coup d’etat of 01/01/1925; 4) contribution, after
03/01/1925, with relevant deeds to the maintenance of the regime; 5) crimes committed for fascist reasons or
making use of the situation created by fascism; 6) collaborationism crimes, as well as in the hypothesis of presumed
collaborationism.

15
THE ITALIAN TRANSITION AFTER THE SECOND WORLD WAR

legislator and convicted a high number of people, while the Cassation Court seated in Rome

had an opposite approach. It is worth remembering that it was composed of the most

experienced judges, who were mainly appointed during the fascist period, thanks also to their

condescending approach to the regime. The reason of this indulgence towards public officials

is well explained by the words of the judges of the Court of Appeal of Rome, who openly stated

that a different way to judge the acts of the public officials during the fascist regime would have

led to consider responsible of relevant deeds the same public officials, among which there was

the judiciary, as the whole legislation had been modified by the fascist regime (Leto, 1946).

The provisions of the decree were not clearly written: they were vague and referred to

concepts that could be interpreted in different manners according to the political approach of

the judges. Because of this, all the exceptions to the application of the amnesty were

restrictively interpreted. This approach was often contrary not only to the rationale of the

Decree, as described in the explanatory memorandum, but also contra legem. In addition, Caroli

(2017, p. 171) explains that in some cases the Cassation Court did not give only a creative

interpretation, but also acquitted defendants applying the excuse of “fulfillment of a duty” and

extralegal excuses, based on the aim to do the best for the Nation.

With regards to the exception of offences committed by persons holding civil, political

or military high functions, a first contradiction lies on the (partial) coincidence between the

general scope of application of the amnesty defined by art. 3 and this exception. In fact, the

offence of presumed collaborationism, generally covered by the amnesty20, entailed that the

reus is an individual holding high function in the RSI. The same element, however, should

exclude the offence from the scope of the impunity. Similarly, the offence of “relevant deeds”,

defined in article 3 of the L.l.d n. 159/1944 and included in the general scope of the amnesty,

could be committed only by individuals having held managerial functions. However, in both

20
Article 3 referred to art. 1 of the L.l.d. 22 April 1945, n.152

16
THE ITALIAN TRANSITION AFTER THE SECOND WORLD WAR

cases, the Cassation Court concluded that since the legislator had expressly referred to these

offences as covered by the amnesty, the element of holding high function needed to be

accompanied by concrete and volunteer acts of collaboration (Seminara, 2014, pp. 34-36) in

order the exception to apply. 21

Another exception is the case of particularly cruel brutality. The jurisprudence

recognized the existence of particularly cruel brutality when the conduct would have horrified

even those who were familiar with torture (Barile and De Siervo, 1969, p. 552). Seminara

claims that the Cassation Court adopted a legalistic thinking arguing that the legislator added

the adjective “particularly cruel” to brutality, term that even alone recalls the concept of

mistreatment, because he wanted to better express one specific idea. For this reason, the Court

distinguished three stages of violence: mere brutality, cruel brutality and particularly cruel

brutality. As only the latest was considered to fall in the scope of the exception, it started to

apply the amnesty also to “minor” tortures such as beatings of the genitals, knife wounds under

the nails or on the face and hands, burns or fractures (Donini, 2009, p. 28). In a shameful

judgment (Progresso, 1947), the Cassation stated that it is not excluded from amnesty a black

brigade captain who, after the interrogation of a partisan woman, let his soldiers rape her one

after the other, while she was blindfolded and had her hands tied. Such a behavior, according

to the Court, did not amount to particularly cruel brutality but it was only an offense to the

honor of the woman.

The exception of murder was restrictively interpreted too. In fact, according to the

Cassation Court, this was related just to the voluntary manslaughter, with the exclusion of the

attempted, negligent or involuntary (preterintenzionale under the Italian criminal code) murder.

In addition, in contrast to the jurisprudence on aiding and abetting (art. 116 of the Italian

21
This interpretation granted the amnesty in clamorous cases such as for Giuseppe Bottai, who played an important
role in the Mussolini dictatorship as a Minister of National Education; Luigi Federzoni, Minister of the Interior in
the Mussolini dictatorship and Carlo Scorza, member of the paramilitary group blackshirts and Secretary of the
National Fascist Party (Franzinelli 2006, pp. 161-196).

17
THE ITALIAN TRANSITION AFTER THE SECOND WORLD WAR

criminal code), the mere instigation to commit the murder was considered by the Cassation

Court out of the scope of the exception, so that the amnesty had to be granted also in cases of

moral complicity.

The fourth example of restrictive interpretation concerned the exemption of crimes for

profit, which were excluded from the amnesty because of the vileness of their aim. In fact, the

aim was considered to fall in the scope of the provision only when it was the essential cause of

the criminal action. Instead, the amnesty had to apply when the aim of getting wages or

monetary compensation from the cooperation with the regime or with the German occupier was

accompanied by the will of loyally serving the regime or taking personal revenge.

A last case of loose interpretation regards the exception of facts of pillage. Indeed, as

stressed by Caroli (2016, p. 117), the Cassation Court decided that, in order to fall in the scope

of the provision, the objective and the subjective element of the crime ex art. 419 of the Italian

criminal code (several removals and the aim of disturb public order) should be present. The

consequences of this approach were illogical. The current public order was, in fact, the one of

the RSI. So, all the pillages done during that period were not led by the purpose to upset the

public order but to eliminate the anti-fascist activity.

We should then ask ourselves if this “generous” judicial approach had risen concerns in

the political and civil society. However, we cannot give a plain answer. Two events can clarify

the situation. First of all, in a 1946 session of Parliament, some MPs raised the question

concerning the possibility to take measures against the wide interpretation of the amnesty: the

new Ministry of Justice responded that the interpretation of the law was not up to the

government. Secondly, some circulars were sent by the Minister to the Prosecutors around the

country suggesting a different approach. In particular they underlined the necessity, in case of

doubts on the interpretation of the provisions, of remembering that the Decree n. 142/1945 had

established the presumption of collaborationism (Seminara, 2014).

18
THE ITALIAN TRANSITION AFTER THE SECOND WORLD WAR

It is now the moment to shift to the amnesties adopted between April 1944 and June

1946 and granted for partisans’ crimes. We are going to compare the two different approaches

shown by the judges towards fascists and partisans. Undoubtedly, the application of the

Togliatti amnesty made by the Cassation was totally unbalanced in favor of the fascists and, on

the contrary, amnesties for partisans, who had fought for the liberation of the country, were not

so widely granted. As stressed by Ponzani (2011, p. 128), all the amnesties adopted in this

period in favor of partisans underlined the illegality of their actions, even if the State decided

not to punish them. The Decree n. 179 of 17 November 1945 should have granted amnesty for

all the crimes committed before 22 October 1922 or during the fascist regime with the aim to

combat fascism or to defend himself from fascist persecutions. It is not surprising that the

Cassation Court adopted a restrictive interpretation of the term “combating fascism”, stating

that it was limited to armed operations performed in the context of active war, between 1943

and 1945 (Ponzani, 2011, p. 129). This created a legal precedent. Several amnesties for

partisans’ crimes followed during the period between 1944 and 1959. The Decree n. 194 of 12

April 1945 stated that acts of sabotage, requisitions and all other operations performed by

patriots to meet the needs of combating Germans and Fascists shall not incur punishment. This

does not refer to “partisans” but to “patriots”, and so “it failed to address the illegal status of

partisans” (Ponzani, 2011, p. 129). In addition, as concerns the interpretation, the Cassation

Court decided that it could be applied only to those patriots who had been members of military

formations recognized by the National Liberation Committees (CNLs). In this way, it excluded

from the application civilians who had fought during the Resistance. In relation to this, Togliatti

sent a circular to the first Presidents and Public Prosecutors of the Courts of Appeal,

encouraging them to grant the amnesty not only for acts committed by partisan members of the

CNLs but also for actions of civilians who combated the Germans and fascists. Finally, in 1946

the Togliatti Amnesty was adopted, with the aforementioned consequences. A further element

19
THE ITALIAN TRANSITION AFTER THE SECOND WORLD WAR

of discrimination lied in the treatment of the connected crimes; while these were covered by the

amnesty for the fascists, they weren’t for the partisans, who were thus convicted for robbery,

extortion and misappropriation. The partisans who had committed common crimes could only

be pardoned when the offences were directly connected with the “fight against fascism or

defense against fascism persecution” (Battaglia 1955, pp. 358-363). Only lately, the L.l.d of 19

December 1953 n.922 introduced an equal status for partisans and fascists, granting the amnesty

to all connected crimes (Donini 2009, p. 29).

Some figures will help to clarify the results of this interpretation: by 31 December 1952,

of the nearly 6,000 convicted for collaborationism crime, 5328 had been released early due to

amnesty, pardon or conditional release, while only 266 were detained (Dondi 1999, p. 69).

It is evident that, on the one hand, the ambiguity of the provisions of the amnesties and

its poor technical formulation were used by the judiciary — in contrast with the expectation of

the political actors — to punish acts committed by partisans during the war of national liberation

and, on the other hand, to consider lawful the actions of civilian and military hierarchs. Finally,

it is worth remembering that in 1947 and 1953 two new and broader amnesties were approved

by the new government led by the Christian Democratic Party.

Section V: the evaluation of the transitional period

In order to evaluate the Togliatti amnesty, it is necessary to highlight the four categories

of transitional amnesties proposed by Slye (2002, pp. 240-247), on the basis of three criteria:

content of the amnesty, creation and implementation, purpose of the amnesty. The first group

is composed by amnesic amnesties, granted by the regime responsible for the human rights

abuses. They facilitate the transitional period but not the truth-seeking and the reconciliation.

They can be promulgated at any time and are not followed by other instruments to address the

consequences of the violations. The second group is made up of compromise amnesties which

20
THE ITALIAN TRANSITION AFTER THE SECOND WORLD WAR

“partially conceal and partially reveal” (Slye, 2002, p. 241). Revelation takes place through the

amnesty itself or through a parallel Truth and Reconciliation Commission (TRC); but the

acknowledgment is often institutional and not individual. They permit more acknowledgment

than amnesic amnesties but not enough to reach the minimum standards of justice. They apply

to restrictive categories (of acts, people or individuals and acts characterized by a particular

motive), allowing some forms of truth and accountability. Caroli (2017, pp.216-220) explains

that the Togliatti amnesty, in the will of the legislator, should have been part of this second

group. However, the hallmark is just the fact of creating, through the investigations for the

application of the amnesty, a space for inquiries on abuses and for partial punishment, thing

that we cannot find in practice in the Italian case. The third group is the one of the corrective

amnesties. They can be divided into two groups: the first one is used to stay the enforcement of

a law, that is still believed legitimate, but not useful anymore, while the second one to remove

an injustice. The last one is composed by the accountable amnesties, which introduce ways of

accountability. They are characterized by public hearing, the possibility for the victim to

challenge a claim to amnesty and concrete benefit to victims.

It is now the moment to outline the historical reasons which brought Italian political and

judicial system to address the legacy of its recent past in such a way. To do so, we will start by

drawing a comparison with Germany, underlining the several reasons why Italy did not have

its own Nuremberg (Prosperi, 2016). At the end of the conflict, the international community

was more focused on Germany, the country that was responsible for the starting of the war. The

winners wanted to avoid the mistakes done after the First World War, when financial sanctions

had proved to be an ineffective and dangerous remedy and led to the isolation of Germany. The

new broader approach included the adoption of a new Basic Law (Grundgesetz, 1949) and the

establishment of an international tribunal to prosecute and punish those Nazis responsible of

war crimes. On the other side of the Alps, Italy was in a different position: it was still considered

21
THE ITALIAN TRANSITION AFTER THE SECOND WORLD WAR

as a defeated ally of Germany at the negotiating table but after the armistice and the surrender

agreement of Cassibile (September 1943) the Kingdom of Italy had gained the status of co-

belligerent with the Anglo-Americans. After the end of the conflict the Italian territory was not

under the military control of the Allies and free elections could be held.

As already mentioned, in the period that goes from the armistice to the end of the war,

the country was split in two: in the centre-north groups of political opposers started to organize

an armed resistance against the occupiers and their Italian collaborators. Among the partisans

different political ideologies were represented, from monarchist loyal to Badoglio to

communists, from Christians democrats to socialists, and all were united against the regime in

the name of anti-fascist values, fighting to free the country and to restore liberties. A similar

experience took place in the centre-south within the National Liberation Committee. When the

war ended and the north of Italy was freed from the Nazis, the CLN had already set the route

of the political transition. As mentioned in the previous sections, once Italy became a Republic,

the Constitutional Assembly worked on a Constitution which was republican, democratic and

anti-fascist. Transitional and final provision XII forbade to reorganize, under any form

whatsoever, the dissolved Fascist party. 22

This historical parenthesis is important to understand how in the aftermath of the Second

World War the Italian society found a moment of rebirth and redemption in the Resistance

22
The same provision, at paragraph 2, contained the possibility to establish, for not more than five years from the
implementation of the Constitution, temporary limitations to the right to vote and eligibility for the leaders
responsible for the Fascist regime. Art. 1 of the Law n. 1453/1947 included in this category: 1) ministers and
under-secretaries of state in office since 15 January 1925; 2) senators, except those not referred to the High Court
of Justice, or for whom the High Court rejected the proposal for revocation; deputies of the XXVII, XXVIII and
XXIX legislatures, except for the deputies of the XXVII who did not swear or who exercised opposition in the
Chamber or who were declared lapsed with the motion of November 9, 1926 or who were part of the National
Council or the Constituent Assembly; national councilors; 3) members of the national council of the fascist party
or of the republican fascist party; members of the special court for the defense of the state and the special courts
of the fascist social republic; 4) high ranks of the fascist party, up to and including the rank of federal secretary
(provincial); 5) general officers of the voluntary militia for national security in permanent paid service, with the
exception of special services officers, officers of the Republican National Guard, of the Black Brigades, of the
autonomous legions and of the special police departments of the Fascist Social Republic; 6) heads of province and
quaestors appointed by the Fascist social republic; 7) those who have been excluded from teaching or professional
bodies due to their fascist activity.

22
THE ITALIAN TRANSITION AFTER THE SECOND WORLD WAR

before and in the new Constitution immediately after. It would be reductive to consider this

institutional revolution as a mere legal reform and classify it under the pillar of guarantees of

non-recurrence. Pietro Calamandrei (1955) said in a well-known speech that if you want to go

on a pilgrimage to the place where the Italian Constitution was born, you should go to the

mountains where the partisans fell, to the prisons where they were imprisoned, to the fields

where they were hanged. Wherever an Italian died to redeem freedom and dignity, you should

go there, with your mind, because the Italian Constitution was born there. For sure, victims of

massacres and abuses and their relatives were frustrated and impunity prevented them from

receiving restorations for their sufferings. However, in the opinion of the contemporary society,

the compensation for their losses was represented by the new recognition of civil, political and

social rights. The civil war was won, fascism defeated and the new Constitution granted equal

rights and freedoms to everybody. A sort of general, universal compensation after the atrocity

of the war is therefore granted to every citizen.

Moreover, another difference from Germany is the following: Mussolini, his mistress

Claretta Petacci and his closer hierarchs did not commit suicide but were taken prisoners by a

group of partisans immediately after the liberation of Milan in April 1945. The decision of the

National Liberation Committee for High Italy, probably supported by the British, is — in breach

of the Armistice Treaty — not to surrender them to the Allies but to execute them. Mussolini’s

execution and public ostension of his body were a symbolic (and brutal) representation of

popular justice doing its course is given to the public.

It is also for these reasons that the Italian society did not experience serious criminal

prosecution for abuses committed during the war. Consequentially, the Italian foundation myth

has nothing to do with a trial, as in Germany — where a reference can be made to The

Eumenides by Aeschylus (Caroli, 2017, p. 310) — but its mythology of rebirth is rooted in the

anti-fascist values of the Resistance.

23
THE ITALIAN TRANSITION AFTER THE SECOND WORLD WAR

Is such a process satisfying for the contemporary observer interested in transitional

justice? Probably not. The Italian choice for amnesty is dictated also by the need of self-

absolution of a vast proportion of Italians, starting from from the Cassation judges. Before the

war, the fascist regime was supported, actively or silently, by the majority of the people.

Granting impunity to fascists is a way of absolving the society that has permitted them to do

what they have done. This is particularly true for the judges interpreting the amnesty decree,

they were appointed to their honorific role of Counsellors of Cassation during Mussolini’s era

and had applied his law and statutes for 20 years: how could we expect them to convict

colleagues and other “loyal” civil servants (Calamandrei, 1947)?

The broad impunity was not accompanied by any other transitional mechanism: purges

were very limited and truth-seeking or reconciliation bodies were not established at any level.

During the criminal proceedings in which the amnesty was granted, the findings of facts and

the reconstruction of the conduct of the accused played a marginal role (Caroli, 2016, p. 167)

as the subject-matter of the proceedings was not whether the conduct of the accused amounted

to a criminal offense but instead whether it felt in the scope of the amnesty. Once the latter was

ascertained, there was not any legal reason to discuss the case further and, as illustrated in

Section IV, judges were very inclined to interpret the facts in favor of the accused. The task of

seeking the truth and establishing a memory of the historical events was left to the civil society

and associations: among others, the Associazione Nazionale Partigiani d’Italia (ANPI) devoted

itself to this cause but it has been perceived by significant part of the general public as a

politicized movement.

As far victims’ reparations are concerned (Caroli, 2017, pp. 261-264), the absence of

criminal convictions determined the impossibility to seek reparation for those who suffered the

consequences of offenses covered by the amnesty. Moreover, the procedure to approve the

Togliatti decree did not involve the civil society at all and the role of the victims in criminal

24
THE ITALIAN TRANSITION AFTER THE SECOND WORLD WAR

proceedings was very limited or even excluded: in the proceedings before the Extraordinary

Assize Courts, the participation of victim as civil parties claiming for damages was not allowed.

Furthermore, these choices led to a sort of removal from the collective historical

memory of the crimes and abuses committed by the Italians who occupied the highest civil and

military positions for over 20 years. From this point of view, criminal trials not only would

have been a chance to establish the responsibilities of single individuals but could have also

represented a starting point for a general acknowledgment of the responsibility of the Italian

ruling class and society during the fascist era and the Second World War. This happened in

Germany, for example, where the Nuremberg trials constituted a basis for the political and

historical discussions about the Nazi legacy and the responsibilities of the country as a whole

(Caroli, 2017, pp. 277-284).

Conclusion

Through the pages of this paper we tried to give the reader an overall view of the Italian

transitional period. After having outlined the atrocities committed by the fascist regime both in

Italy and abroad, we focused on the political and social scenario that characterized Italy between

1943 and 1946. A destroyed country had to find its path towards peace and democracy. In this

route it was necessary to overcome the ghosts of the overthrown regime. We have shown that

at first the Italian ruling class started a severe offensive against its internal enemy by the means

of a broad criminal prosecution. However, this attempt failed, due to a judiciary compromised

with the past regime and a civil society unwilling to admit its own responsibilities. The amnesty

proposed by Togliatti became the symbol of this general sense, understood and complied with

by the political actors, and the limitations set by the law were overcome by the judges. At the

same time, the country found itself unite again not in criminal trials against a common enemy

but in the democratic and anti-fascist values enshrined in the new Constitution.

25
THE ITALIAN TRANSITION AFTER THE SECOND WORLD WAR

In light of this, we can attempt to assess whether the Italian transitional period was

satisfying in terms of justice, reparation, truth and guaranteed of non-recurrence. As regards to

criminal justice, the Togliatti amnesty is in line with the custom of the time but de facto the

practical application of it led to a generalized impunity with significant negative consequences

for victims and for the new-born democratic society in general. Moreover, the transition is

greatly deficient in relation to victims, truth seeking and collective acknowledgment of

historical responsibilities, as nothing specific has been done. However, the experience of the

Resistance and the approval of the new Republican Constitution laid the foundation of a period

of peace and democracy that resisted through the years of political terrorism and that Italy still

enjoys today.

26
THE ITALIAN TRANSITION AFTER THE SECOND WORLD WAR

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