The magistrate Costanzo Cea he is certainly not a man who can be dismissed as a sympathizer of the judicial right. For years he was a member of the PCI, raised in a political tradition that has historically viewed with distrust separation of careerstoday announces that he will vote “Yes” in the referendum on justice reform. It does so with a motivation that weighs more than the political gesture and which recalls both the Constitution and the history of the Italian judicial system. “If the judge must truly be a third party,” he explains, “he cannot share the same self-governing body with one of the parties to the trial.”
But Cea also recalls a fact that is often ignored in the public debate: the unity of careers between judges and prosecutors is not a principle born with the Republican Constitution. On the contrary, it derives from the judicial system of 1941, the reform desired by the Keeper of the Seals Dino Grandi in the fully totalitarian phase of fascism, which unified the careers of prosecuting and judging magistrates within the same order. A structure conceived in a political context in which state control over justice was an integral part of the system.
The fascist roots of the system and the need for change
For this reason, Cea argues, today’s discussion on the separation of careers should not be read as a break with constitutional tradition, but rather as an attempt to correct an institutional structure that was born in that historical period. In short: the principle of thirdnesswhat the Constitution recalls in due processit cannot remain an abstract formula. It must have an institutional consequence. And that consequence, for Cea, is precisely the separation of careers between those who accuse and those who judge.
His intervention is only the latest sign of a phenomenon that is going through the Italian left: a non-marginal part of the progressive world is preparing to vote “Yes” in the referendum on justice, in open contrast with the official line of Democratic Party. It is not an organized front, it does not have a political leadership, but it has a common trait: it considers the referendum a choice of institutional merit, not a judgment on the government of Giorgia Meloni.
It is the same argument that returns in the words of the constitutionalist Stefano Ceccantione of the most authoritative references in the reformist area of the centre-left. For Ceccanti the point is not to defend or attack the government, but to bring to the logical consequences a choice made by Parliament over twenty years ago, when the constitutional reform of fair trial was approved.
A necessary reform
«When it is said that the judge must be a third party», he warns, «there cannot be a single judge Csm which governs judges and prosecutors together.” It is a contradiction that arises precisely with the new article 111 of the Constitution, which defines the trial as a confrontation between parties before an impartial judge. If the public prosecutor is not a party, observes Ceccanti, then we are not within the logic of due process. If, however, it is a part, then the separation of careers becomes almost inevitable.
Ceccanti also insists on another point often removed in the political debate: the reform is not born today. «When Parliament voted for due process in 1999», he recalls, «it was clear that sooner or later we would also have to intervene on the disciplinary system and on the structure of the CSM».
In other words, the current reform is not a break but the completion of a constitutional path started some time ago. «The technical solutions can be discussed», concedes the constitutionalist, «but it cannot be doubted that these problems existed and that a reform was necessary». A surprisingly wide network is forming around this reading in the progressive camp. Among the “Yes” supporters is the former president of the Constitutional Court Augusto Barberawhich recalls the need to strengthen the impartiality of the judge, together with scholars and reformists such as Tommaso Nanniciniconvinced that the issue is not the independence of prosecutors but the balance between accusation and judgment in the accusatory model.
The progressive network for Yes between Milan and Lombardy
Among the administrators of the Lombard center-left the debate has become explicit. The regional councilor Pietro Bussolatia member of the Democratic Party, announced that he will vote “Yes” “while respecting the party line”, claiming a personal choice linked to the need to reduce the weight of currents in the judiciary.
A position shared by several Milanese progressives who have gathered in recent weeks in public initiatives in favor of the referendum. Among them the constitutionalist Marilisa D’Amicothe criminal lawyer Vinicio Nardothe lawyers Mirko Mazzali And Annalisa Learned. Mazzali, a historic exponent of the Milanese left, lawyer of Leoncavallo and of many antagonists often arrested during demonstrations, explains his choice thus: «I am voting “Yes” because it is not a vote on the Meloni government. If it were, I would vote “No”. Here we are talking about the separation of careers, a battle in the penal chambers that has lasted for thirty years. It is a reform that also belongs to the culture of the left: the judge, as well as being independent, must appear third.”
A network of administrators and civic figures moves around this nucleus: Alessandro Enginoli, Ilaria Li Vigni, Marco Brenelli, Stefania Bariatti, Lisa Noja, Giovanni Cominelli, Silvia Brena, Simona Viola, Michele Salvati, Patrizia De Grazia, Edoardo Croci, Marta Tamborini, Benedetto Della Vedova, Grazia Callipari, Paolo Costanzo, Mila Grujovic, Giannamaria Radice, Erminio Quartiani, Paola De Pascalistogether with the deputy Ivan Scalfarotto and to the civic leader Michele Usuelli. In Milan there is also a “Yes” vote Sergio Scalpelliformer PCI then councilor with Gabriele Albertini, who says: «The justice reform makes Italy more modern and breaks the power of the currents».
A guaranteeist tradition from Matteotti to Falcone
Moreover, the idea that the separation of careers belongs only to the right is historically unfounded. In the progressive camp, figures such as Emma Boninoheir to the radical battles of Marco Pannellaand the former Mani Pulite magistrate Antonio Di Pietroaccording to which “the public prosecutor does not seek the truth, but the guilty party”. Even in the reformist area of the center-left the topic has been discussed at length: from Goffredo Bettini to Claudio Petrucciolifrom Enrico Morando to the governor Vincenzo De Lucaup to jurists and managers such as Giovanni Pellegrino, Cesare Salvi, Luciano Violante And Franco Bassanini. A debate that has been running through the political culture of the Italian left for decades.
Even a radical left lawyer like Giuliano Pisapia came to support positions very similar to those discussed today. In 2008 the former Milanese mayor wrote together with the current Minister of Justice Carlo Nordio the book Waiting for justice. Dialogue on possible reforms. A confrontation that at the time almost seemed like a political experiment: a liberal magistrate and a left-wing lawyer discussing together the reforms necessary for Italian justice. In the book, Pisapia used a metaphor destined to return to public debate: “I look with disfavor at a referee who can wear the black jersey one time and the player’s uniform the other.” A simple way to explain why the distinction between judge and prosecutor strengthens citizens’ trust in the jurisdiction.
Nordio, for his part, argued that “the automatic passage from one function to another undermines the perception of impartiality of the jurisdiction”. But both made a firm point: the separation of careers must never transform into the subordination of the public prosecutor to political power. “It is essential to guarantee the absolute independence of the prosecutor from the executive,” they wrote. That reflection, born almost twenty years ago, is once again relevant today also because the debate is often marked by a certain historical amnesia.
The name of Giovanni Falconethe magistrate killed by the mafia in 1992, is often evoked to defend the unity of the judiciary. Yet Falcone was not against the separation of careers: he believed that distinguishing between prosecutor and judge was compatible with a modern and guarantee-based process. An even more surprising precedent comes from the history of the left. The socialist Giacomo Matteottibefore becoming the symbol of opposition to fascism, murdered in 1924, he was a refined criminal lawyer and supported the need to clearly distinguish between the prosecuting function and the judging function, as a guarantee against any arbitrariness. The referendum thus reveals a fracture in the centre-left: while Elly Schlein leads the Democratic Party on “No”, a part of the same reformist tradition of the left is preparing to vote “Yes”, reminding the party that the guaranteeist culture was not born in the halls of power but in the history of the Italian left.
