LECCE – The debate on the separation of careers between the judging and prosecuting judiciary is becoming increasingly heated in view of the constitutional referendum. Among the voices raised against the Nordio reform is that of the lawyer Umberto Leo, who became part of the coordination of the no committee, inaugurated in Lecce six days ago (as reported in this article).
In this lucid intervention, the lawyer dismantles the presuppositions of the reform, supporting a worrying thesis: far from limiting the “excessive power” of the public prosecutor, the separation would paradoxically risk strengthening it, creating a new autonomous and independent state power. A power which, in order not to degenerate, would inevitably end up subjected to the executive, with serious damage to the constitutional balance and to the guarantees of the accused.
We publish his contribution in full.
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“In order for each of us to be able to decide with full knowledge of the facts for one or the other vote, we need to start from a certain and incontrovertible fact: the entire judiciary, prosecuting and judging, is a power of the State. To understand this, it will be enough to read the art. 104 of the Charter: “The judiciary constitutes an autonomous order independent of any other power”.
You can argue as much as you want whether it is a question of mere power or of power aimed at a service or, finally, of power constituted in order; but it cannot be denied that it is, in fact, a state power. And in fact, the use of the indefinite adjective “other” commits the scholar to recognizing that organ as true power. If this were not the case, the rule would only have stated “from all powers”, without any adjectives.
Having settled this point, it will be necessary to ask ourselves why the Constitution is concerned with the autonomy and independence of the judiciary towards the “other” powers, and is concerned enough to enshrine both in law. The answer is simple to give: demand that all citizens are equal before the law, without favoritism and without any privilege!
Given this, and consequently, the dismemberment of the jurisdictional system into two distinct and separate bodies, increasingly governed by separate and distinct CSM, would effectively create a power further than those already recognized by the Constitution.
Nor can it be hypothesized, except senselessly, that once the judge is “separated” from the prosecutor, the latter miraculously loses the substance of power, which is proper to him and derives from the constitutional precept mentioned above.
Ergo, the Prosecutor’s Office would become a new state power, autonomous and independent from all the “others”.
This being the case, wanting to draw reasoned conclusions at this point – and if I have understood correctly – the new reform, in order to deprive the public prosecution of the excessive power it would enjoy today, has seen fit to give it greater and more incisive power.
This is how, my dears, we reap the fruit of the bad garden: with a single manoeuvre, the strength of the public prosecutor is increased immeasurably and that of the defender is considerably weakened.
Far from implementing “due process”! So, we are well beyond the ambulance hypothesis!
And we are also because, to prevent the prosecutor’s power, so excessively increased, from slipping into excess, no other path can be taken other than to subject the accusatory function to the executive power. Please note that the picture just described is not a wild gem from the evil mind of the writer, but originates peacefully from the reading, albeit ruthless, of concrete reality.
On the other hand, the Nordio reform postulates an unproven premise: the words of the public prosecutor convince the judge much more than those of the defender.
To me, the last of the “village” lawyers, this does not seem true.
Sentences and judicial measures in general, when reformed, are reformed by judges.
It applies to the investigating judge who, avoiding the arrows of opinio communis (the dominant thought in bowling), validates the arrest and does not order any precautionary measure; for the Court of Review, when you cancel a restrictive order or an ablative decree; for the Supreme Court of Cassation, when it accepts the appeal pursuant to art. 311 cpp or pursuant to art. 606 same code; for annulment on appeal; in the event of an execution incident; when it concerns the acceptance of the opposition to the request for dismissal, especially in the event of the formulation of the forced indictment.
Continuing the analysis, I ask myself: from the specific point of view of the speed of judgments, does the change bring one and only one acceleration boost? He simply keeps quiet about it, since he doesn’t care at all!
And then, the birth of the government reveals a “defective syllogism” that gives rise to errors; and these, like all their peers, are destined to evolve into further errors!
By unleashing the lawyer’s weapons, jurisprudence is annihilated and the accused is defrauded of any possibility of proving his innocence, or of hoping for mitigation of the sentence.
Of course, I may have been wrong; but, in summary, the modification of the art. 104 yearns for the establishment of a judicial apparatus to be acclaimed as third party only if it satisfies the reasons of the ruler, which almost never coincide with the hopes of the governed.
Voters, strip this reform of its trappings, strip it of the redundant proclamations of progress, strip it of the covering paint, strip it of the clumsy and excessively shiny tuxedo it wears, and only the Jacobin’s tattoos will remain.
“When he takes the chalk, he takes the face of Sertoria; he lost it as the chalk, he also lost the face: when if he begins, Sertoria assumes un bel viso; vanita la crema, si perde anche la faccia. (Seneca, Epigrammi)
Merry Christmas to everyone: may the Lord bless us.”
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