Justice reform: because the reasons for the No vote do not hold up and the reform would finally make the principle of fair trial effective
We collect the punishments, but we carry on anyway: even on the constitutional referendum we want to listen to the reasons for Yes and those for No. For the former, it is enough to compare the two articles of the Constitution before and after the amendment and we also did so in my article of Thursday 29 January.
As for the latter, the No supporters put forward five reasons, the first of which was discussed in the said article: it cannot be true that, with the reform, politics would have greater interference in the formation of the CSM because the composition of the latter would take place by drawing lots (and no longer by vote) among those qualified to be part of it. And it is the votes that are susceptible to external interference, while a draw is certainly exempt from it.
We now want to listen to the other side also on the remaining four reasons for voting No (you can read them on the website of the Committee for No, www.cgil.it).
The second reason would be that «the constitutional reform does not solve all the problems of Italian justice». But the reform does not make this claim. However, at least it solves one problem: the mix between judges and the public prosecution, which leaves the principle of fair trial enshrined in Article 111 of the Constitution unapplied, according to which “every trial takes place in cross-examination between the parties, in equal conditions, before a third and impartial judge”. Instead, currently, judges and prosecutors share the same work spaces, talk to each other and report to the same control order: in short, prosecutors maintain relationships with judges that are not possible with lawyers. Regarding the last thing said, I would like to observe that it is sometimes said that the two entities must not only be but also appear separate. I would rather say that, instead, it is not that the two entities are separate and do not appear as such; but, on the contrary, they appear separate (and they appear so due to article 111, which is not yet completed), but in fact they are not.
Reason three. “The high percentage of trials that end in acquittal (i.e. the judge rejecting the prosecutor’s requests) shows that, with the current system, the judge is already third and impartial.” Extravagant logic that swirls in the heads of those of the Committee for No: true or not – but they say it from the Committee for No, so we take it for granted -, “the high percentage of trials that end in acquittal” shows something completely different. It shows that there is a high percentage of processes that should not have even started. If they began on the initiative of the prosecutor and ended with acquittal, one wonders how this has so far affected the prosecutor’s professional assessment. The answer would seem to be that it did not influence it in any way, given that only the constitutional reform talks about personal evaluation (the current system only provides for “promotions”). If, however, “the high percentage of trials ending in acquittal” began with the assistance of the investigating judge (for the preliminary investigation phase) or the preliminary hearing judge (for the preliminary hearing), then this highlights the vicious mix between prosecutors and judges, where the latter would tend more to favor their colleagues and participate in the continuation of a trial that should not have even begun.
Reason four. «The procedure adopted was rushed (sic!): exactly the opposite of that desired by the fathers and mothers (sic!) of the constituents». The separation of careers – desired for thirty years – is implemented with the declaration in the Constitution according to which the judiciary “is made up of magistrates from the judging career and the prosecuting career”: the 11 slowest words in the history of law, I would say. In any case, the Regional Administrative Court did not share the same opinion and, as Gianluigi Paragone informed us on these pages, believed it should not waste any more time.
Reason number 5. “The government’s public statements confirm concerns about the autonomy of the judiciary.” The No Committee refers to Giorgia Meloni who had shown disappointment at the fact that the Court of Auditors had objected to the Strait Bridge. Now, apart from the fact that, following the extravagant logic of the No Committee, one could conversely consider the autonomy of the executive to be undermined by the Court of Auditors, it is not clear what relationship there could ever be between anyone’s declarations with the evaluation of the goodness or otherwise of a law.
In conclusion, if the reasons for the No vote are valid, there is no reason to vote No. The reform would fully implement the principle of due process.
