More than justice reform, that of Minister Nordio is a constitutional reform of the judicial order. The National Association of Magistrates is already on the barricades, but we believe that the judges’ continuous failures at every attempt to reform the judiciary are merely instrumental. The aim of the officials is in fact to self-protect as much as possible their position of interference in the democratic life of the country. Let’s see briefly what the constitutional revision bill approved by the Council of Ministers on 29 May provides.
First of all there is the separation of careers. In fact, the art. 104 of the Constitution would be amended as follows: “The judiciary constitutes an autonomous order independent of any other power and is made up of magistrates from the judging career and the prosecuting career”. Open heaven! The ANM immediately spoke of a political attack on the independence of the judiciary. False! In fact, our Constitution provides, with the constitutional revision of 1999, that the criminal trial is carried out according to the system of the accusatory process, which in simple terms means that the prosecution and defense are placed on the same level and the accused is judged, as well as or in a proceeding in which there is cross-examination between the parties, by a third and impartial judge.
If the magistrate who judges, i.e. the one belonging to the judging judiciary, must be third and impartial, it is not clear how he can belong to the same judicial order as the magistrate who investigates (requiring), given that the latter is also placed on the same level as the defense . Furthermore, it must be said that the accusatory process has already been a reality for over thirty years; in fact, the new code of criminal procedure dates back to 1988 (which came into force the following year). Of course, ours is an accusatory process that is still unfinished, so much so that the Nordio reform seeks to complete the long journey begun at the end of the 1980s.
He had also thought about separating careers at first the former minister Cartabia (Draghi government), but had to fall back – also due to the presence of M5s and Pd in the government – on rules that currently limit the transition from the prosecuting judiciary to the judging judiciary and vice versa in a more incisive way compared to the previous formulation. Today, in fact, it is possible to change roles in just the first nine years of starting your career, although changes in roles are also possible later in time, but with limitations. An example: if you have been an investigator for more than nine years, you can move on to being an adjudicator only in the civil sector (to put it bluntly). In short, something has been done in recent years.
The center-right has gone further, to the point of starting the constitutional revision process providing not only the separation of careers but also two CSMs, one for the judging judiciary and the other for the prosecuting judiciary. A logical rule because, with clearly separate orders, there cannot be a single body of autonomy and self-regulation of the judiciary.
The new CSM will be made up of 33 members: 3 by right (President of the Republic, the first president of the Court of Cassation and the Attorney General of the Cassation), 20 professional figures and 10 lay people. Officials and lay people will have to be chosen by lot and no longer by election. An innovative solution that will end up dismantle currentism which has done so much harm to Italian justice in the last thirty-odd years.
Also notable is the introduction of a High Court composed of 15 judges (3 appointed by the Head of State, 3 drawn by lot from a list drawn up by Parliament in joint session, 6 judging magistrates and 3 prosecutors drawn by lot in their respective categories) competent for disciplinary proceedings. An innovation that undermines the so-called “domestic justice”, in fact judges who make mistakes, as is well known, have always been judged by the disciplinary section of the CSM, with sentences almost always of acquittal or condemnation to negligible disciplinary measures. The introduction of a High Court certainly guarantees less self-exculpatory judgments.
In recent days the left has gone on the attack, using as always its own paid intellectuals who denounce an attack on the independence and autonomy of the judiciary. It’s a shame that they forget the words of Giovanni Falcone, which has always been instrumentally used by the center-left for its own use and consumption. In fact, in 1991 the great Palermo magistrate said in a famous interview with Republic that “the Public Prosecutor must not have any kind of relationship with the judge and must not be, as he is today, a kind of para-judge. Whoever, like me, requests that there be, instead, two figures structurally differentiated in terms of skills and career, is branded as an enemy of the independence of the Magistrate, a nostalgic for the discretion of criminal action, eager to place the PM under the control of the executive”. Words that cost Falcone the enmity of most of his colleagues, only to then – those same colleagues – praise him after his death and use him as a flag of political struggle against the centre-right.
What leaves us perplexed, however, is the final success of the reform. It is in fact a constitutional revision bill, therefore it must follow the process provided for by the art. 138 of the Constitution: passages in the commission and then in the chamber, first resolution of the Chambers by a majority of those present, then three months of stoppage and second resolution at least by a majority of the members of both Chambers. And since a majority of 2/3 of the members in both Chambers will not be reached in the second deliberation, there will certainly be a confirmatory referendum. We don’t dare imagine the propaganda war machine that the ANM and the center-left will set up. In short, Nordio has dealt the cards, but we don’t want the judges to have the usual four aces in their hands.
Paolo Becchi and Giuseppe Palma, 1 June 2024
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