The father of the new Penal Code gave an interview in which he explained how dividing the prosecutors from the judicial robes was a necessary step for the system to work. With all due respect to the Republic and the anti-reform party. Here is the document that Panorama published exclusively in 2024
Article published by Panorama in July 2024
What you are about to read is an unpublished, historical and at the same time very current document: Panorama.it offers its readers the complete transcription of a conversation that took place on 19 February 1987 and intended – in a more restricted form of interview – for publication on Financial Times.
The British journalist asks the questions Torquil Dick-Eriksonwho responded was the great jurist Giuliano Vassalli, who at that time was a senator of the Socialist Party as well as president of the Senate Justice Commission which had just approved the delegation law on which the new Criminal Procedure Code would then be based. That Code, of which Vassalli is considered the “father” and which will be introduced into our system at the end of 1989, should have transformed its structure from inquisitorial to accusatory. Just five months after the interview, Vassalli himself became Minister of Justice and held that role until 1991, before rising to the presidency of the Constitutional Court in 1999.
Thirty-seven years ago, the interview was conducted in Italian by Dick-Erikson, and the nine pages that are published today by Panorama.it – courtesy of the author – are the faithful transcription. Dick-Erikson, who has lived in Italy for over 50 years, is a great expert on judicial systems and has collaborated not only with the Financial Timesbut also with theIndependent and the Wall Street Journaland his name is considered synonymous with seriousness and competence, having also published in the Italian legal journal Criminal Defense. This interview of his from February 1987, however, is particularly important as it contains some of Vassalli’s very current thoughts on justice in Italy, and above all on the separation of careers between prosecuting and judging magistrates: precisely the theme of the constitutional reform plan presented in the middle of last June by the Minister of Justice Carlo Nordio.
In the interview, Vassalli states that “the concept of the accusatory system”, which is about to be introduced in Italy in 1987, “is absolutely incompatible with many other principles destined to remain in force in our law, and in particular with our judicial system”. And he adds that the first and fundamental “incompatibility” is precisely the lack of separation of careers. Vassalli underlines how it is almost not even correct “to talk about an accusatory system, where the public prosecutor is a magistrate equal to the judge (…) and will continue to be part of the same career, the same roles…”. Vassalli concludes that “our judicial system will not change, if not minimally”.
Already 37 years ago – therefore well before the upheavals that would later be caused by Tangentopoli in 1992-94 – the jurist admitted, with clear despondency, that “it will not be possible to change the system because what the judiciary has conquered it no longer lets go, it no longer abandons”. Because now “the judiciary has enormous power over the legislative power” and is also “the largest pressure group”. Vassalli adds that “in forty years there has not been a law on justice that has not been inspired and desired by the judiciary, which has increasingly become a corporate body”. And further on he concludes, verbatim and disconsolately, that in Italy the will of Parliament «is a limited sovereignty, like that of Eastern European countries: it is a sovereignty limited by the judiciary, (also sand, ed.) in matters of justice, not in all matters.”
Among the other negativities of the system, already in 1987 Vassalli criticized the immutable tradition of too many magistrates “seconded” to the Ministry of Justice: “The minister”, says the jurist, “is surrounded exclusively by magistrates, who occupy all the positions in the ministry”. And he adds: «I have always said that the greatest revolutionary gesture (of a Minister of Justiceed.) would be to appoint a State Councilor and not a magistrate as head of cabinet.” It’s a shame that Vassalli himself, once he became minister, did not follow up on his words.
Another particularly interesting judgment by Vassalli concerns the Italian Communist Party of 1987: «The PCI is in opposition», he says, «and has managed to bind to itself – through a long and subtle work – a large part of the judiciary; he is very attached to what he calls the concept of the independence of the judiciary, in which independence also includes the full independence of the public prosecutor, and in which he wants no hierarchy, no responsibility”.
But the whole interview is an anthology of ideas. Dick-Erikson and Vassalli even discuss the constitutional principle of mandatory criminal prosecution, the risks of which the British journalist perceives with great clarity and which the Italian jurist confirms, maintaining that “the moment of criminal prosecution, in many cases, should come after an initial investigative phase”.
The original document
The interview with Senator and Jurist Giuliano Vassalli
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