I’m not afraid of it constitutional reform and I will vote yes in the referendum. And I will do it because I care about the function of the judge, his authority in society and the people who are judged by him.
The reform concerns three areas: the separation of the careers of public prosecutors and judges (and, consequently, the split of the Superior Council of the Judiciary into two Councils, one for judges and the other for public prosecutors), the creation of a High Court responsible for judging the disciplinary sanctions requested against magistrates, judges and prosecutors, and, finally, the formation of the Superior Councils no longer on an elective basis, but by drawing lots, both of the magistrates (who maintain a two-thirds majority) and of the members indicated by Parliament.
Before addressing the issue of the separation of careers, I focus on the drawing of the members of the Superior Councils. A “technical” fact? It’s not like that at all. The National Association of Magistrates claims that the reform would empty democratic representation, altering the balance in favor of the political component: but it makes no mention of the “Palamara case”. That “case”, which led to the dismissal of Doctor Palamara – who had been president of the ANM and member of the Superior Council of the Judiciary – demonstrated that the transfers, promotions and important appointments of magistrates were managed by currents, with exchanges of favours, reports, recommendations, interventions by outsiders, pressure: a “countersystem” that opposed the laws, regulations and criteria that the Council should have applied and which had been continuing for years. The currents of the ANM, behind the role of cultural elaboration that they attributed to themselves – “the different ways of understanding jurisdiction” – hid contacts, dealings, agreements: the election of the members of the CSM made it possible to create this alternative system. It was truly a “scandal”: for the citizens, who discovered that those who should be “subject only to the law” (Article 101 of the Constitution) were not at all and, if necessary, repeatedly violated it; but also for the entire judiciary, which must ask itself – or rather: it should have asked itself – what credibility and authority a category has that punishes or wrongs citizens “in the name of the law” and, at the same time, becomes the protagonist of patent violations of the law.
Here the constitutional reform, by detaching the members of the current system with the drawing of lots, carries out a work of “purification” of the judiciary: an intervention – obviously – the result of a political will, but also inevitable. If the referendum confirms the reform, this innovation will, over the years, be advantageous for the magistrates themselves.
A few words about the High Court created to judge disciplinary complaints made against magistrates: if what really matters is that the “accused” magistrate has the guarantee of having an authoritative and impartial judge before him, the composition of the High Court fully provides this guarantee. Of course: there will be no magistrates members of the CSM on whom, in some way, to rely; exactly as happens for any accused or defendant.
We come to the separation of careers: under the constitutional reform, the competitions for the judiciary will be separated to become a public prosecutor and a judge; magistrates will remain public prosecutors or judges for their entire career, without the possibility of moving from one function to another; as has already been said, there will be two distinct superior councils for both (obviously transitional legislation is foreseen).
The first objection: this does not make justice quicker and more efficient. I answer: obviously! Constitutional reform does not have this objective; actually money, investments, hiring of staff, construction of prisons and so on are needed to promote the efficiency of justice: but in this way we are talking about something else.
Second objection: the reform is not necessary because today less than 1% of magistrates change functions (the Cartabia reform had limited the transitions from one career to another). If this is the case, why this vehement aversion towards the separation of careers which would only formalize a de facto situation already in existence?
Again: the reform “brings the public prosecutor closer to the executive power”, making him less independent, transforming him into a “super policeman”. But article 104 of the Constitution still establishes that the judiciary constitutes an autonomous and independent order from any other power and that prosecutorial magistrates are also part of it; and article 107 of the Constitution, unchanged, establishes that the public prosecutor enjoys the guarantees established in his regard by the rules on the judicial system, remains immovable and cannot be released or suspended from service, nor assigned to other offices or functions, unless the Superior Council, made up of two thirds of magistrates who exercise the same function as him, decides so. It seems that there is a desire to attribute to politics intentions that do not emerge at all from the text of the reform, nor from other ordinary legislative proposals.
Would the reform make the judiciary “less free”, more exposed to external powers, less capable of defending citizens? A judiciary that will be “strong with the weak and weak with the strong”? Let me say: they are simple slogans launched for the referendum campaign. One could argue with the colleagues who launch them, asking them: «If the reform is approved by the referendum, are you ready to let yourself be influenced by external powers and to be strong with the weak and weak with the strong? Is your idea of a magistrate really that fragile? And have you really, up until now, not let yourself be influenced and have always courageously defended the citizens?”.
Let’s get to the substance: why the separation of the careers of prosecutors and judges? In 1999, another constitutional reform rewrote article 111 of the Constitution, solemnly establishing the following: «Jurisdiction is implemented through due process. (…) Each trial takes place in cross-examination between the parties, in conditions of equality, before a third and impartial judge.” The figure of the judge appears, whose intrinsic characteristics are impartiality and impartiality. How can you argue that the separation of careers between prosecutors and judges constitutes an “upheaval of the constitutional architecture”? If the public prosecutor is a “party” – a public party, but still a party – the fact that he is separated in his career from that of the judge makes the principle of impartiality effective, but also that of the equality of the parties in the trial: that equality which the civil judge guarantees without problems – he has two private parties before him, who assert their interests – and which, instead, risks being endangered or made more difficult by a public prosecutor “close” to the judge.
You see, on the one hand it is not entirely sincere who denies any problem of impartiality and impartiality of the criminal judge, claiming his absolute autonomy of judgment at any stage of the proceedings (think of the judge for preliminary investigations who must decide on the requests for precautionary measures formulated by the public prosecutor in a phase in which cross-examination does not yet exist, or must authorize wiretaps, or the judge who must decide mafia maxi trials), on the other it is important not only that the judge is third and impartial, but that appears as such in the eyes of the citizen who has to deal with him and who is intimidated by the accusations and the proceedings.
It has been said that the reform is inspired by the liberal principles of the process; this is certainly the case, but, in my opinion, there is also room for a Catholic reflection. Who is the judge? Once upon a time, judgment was entrusted to the king, or to the priests, or to the wise men. In the current democratic system it is entrusted to public officials selected through a technical competition. But, if once the acceptance of decisions by the community derived from divine investiture or from the authority of those who judged, today what does it derive from? Who gives me – me, quite good at legal subjects, quite lucky in the competition, free of psychiatric problems – the power to establish that a person must remain in prison for life, or to acquit someone who everyone believes is guilty? With what power can I establish the punishment for a drug dealer, when the law sets the minimum at six months’ imprisonment and the maximum at twenty years’ imprisonment? Rosario Livatino – the “little judge” who is a model for many – responded, first of all: STD – sub tutela Dei. But he didn’t stop there: he underlined the importance of the judge in common social sentiment “as a super partes figure” who must not be the guarantor of any interest. A judge who must not “save” investigations, if they have not provided sufficient evidence, must not take into account questions of criminal policy or, simply, politics because he must give a just response to that party or that accused. For Livatino it was «essential (…) that the decision arises from an autonomous and complete motivational process, as the result of one’s own personal elaboration, dictated by meditation on the concrete case».
Of course: impartiality and impartiality do not guarantee the adoption of “fair” sentences, but they constitute one of the prerequisites. Livatino indicated others: listening to one’s conscience, incessant moral freedom, fidelity to principles, the ability to sacrifice, technical knowledge, experience, the clarity and linearity of decisions, but also morality, the transparency of conduct even outside the office, the normality of relationships, the choice of friends, the unavailability for initiatives and business, the renunciation of any desire for roles and perks, credibility.
This is the judge who wants the Constitution; society demands this judge and is willing to consider his sentences authoritative.
