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The recent "Reform of Justice", regardless of its epoch-making represents a change of strategy and behavior of the majority, which requires an articulated reflection point by point.

Gim Cassano

Justice Reform of the Judiciary or the Counter?

I think it is a mistake to not see the justice reform proposal passed by the last government, and managed very skillfully on the piano communication among the many metamorphoses which the rider has accustomed us. In this case, that of a man was willing to give the country great (epoch) and consistent liberalizing reforms, which of course this term is used in populist terms that are proper. It seems to revise the so-called scripted, and very cheap, mass of the origins of liberalism, which had nothing of a liberal, as it was easy to suppose, and then as you saw. This impression that received confirmation about the so-called recovery measures and liberalization of the economy, where we can no measures of effectiveness: a proposal for more harmful and perverse than useless, but who had the Common Prayer to be equipped with a highly symbolic and propaganda (the amendment of Article 41 of the Constitution).

In other words, the rider felt that it could not restrict the attempt to discredit and to respond to allegations that rain down on him by Italian public opinion and foreign escaping in one way or another process and has realized having to try to justify his dismissal giving himself the appearance of a statesman, shifting the debate from his personal need to general concepts and not due to personal matter and, behold, so that the diligent coryphaeus Galan, referring to the meeting of the Council of Ministers' decision launched the proposal, report promptly that it was a debate "high."

In fact, the Government's proposal is not found anything that could be specifically related to the vicissitudes of the Papal court, unless the general conception of the role of the judiciary and the prosecution. And we must also consider how the two key points of this proposal can not in itself be considered as subversive of the constitutional foundations of the rule of law. The autonomy of the Judiciary is not challenged by the fact that judges are held responsible civilly for their errors with guilt and is not challenged by the fact that the separation functions between PM and judges may correspond to a separation of careers and bodies.

I do not think then, that opposition does not intend to set aside a conception of justice can be ensured, in the name of separation of powers and independence of the Judiciary, to fall into the trap of challenging such as the introduction of separation careers and responsibilities of civil magistrate would not be understood by those who still believes that a reform of justice is necessary, namely, almost all of the Italians, who would eventually conclude with a resounding "at least we tried this."

That said, the ineffectiveness the government proposal on the one hand, and its poisoned fruit to the other, are detected by other aspects that are downstream of the general principles that inform and slogans, but which in practice the approach given in an authoritarian direction and opposite on principles of separation of powers and the equality of citizens before the law, and, what is more serious, antigarantista. And it is on these issues, it should mobilize the opposition.

Meanwhile, it should be noted that this is not a justice reform, but much more prosaic and practical, a Reformation or Counter Reformation, the Judiciary, and is limited to purely criminal aspect. Nothing is been predicted could lead to the reduction of process times and nothing, if not the fear of the judiciary to be called to pay and not appellabilità of acquittals would alter the rights of the accused or the plaintiff (and what would happen Rights if it considers it unjust acquittal in the first instance?), nothing enables faster preliminary investigations, rather the opposite would happen and, if possible, with even fewer safeguards for the suspect.

The authoritarian system is revealed when looking to circumvent the general principle of mandatory prosecution, states that this remains valid unless the priorities determined by ordinary laws, ie by Parliament. Being openly appeared excessive harm this, it is preferred that the violation of ordinary law, on the grounds that it is for political not judicial courts, but the political seat of the representatives of the people, namely the Parliament.

This would be acceptable to a principle even a strong supporter of parliamentary democracy, except the obvious observation that, in a Parliament such as this, however, tend to be bipolar and that goes to the sound of conversion orders and votes of confidence, and composed by gentlemen who, far from representing the people, rather represent themselves and the secretariats of the parties who have appointed, speaking of the autonomy of Parliament over the executive seems totally unreal. That will be made in the Executive to set priorities regarding criminal proceedings. And I do not think, given the precedents that the offenses of bribery and corruption, false accounting, tax fraud, will be judged more "dangerous" than others. If it is true that, in practice, and present condition of justice, mandatory prosecution can not be exercised in respect of all crimes, the executive entrust the choice of crimes to pursue and those to be considered residual . is not the best solution, is not worthy of a rule of law, and is detrimental to the principles of legal certainty and equality of all before the law.

A similar reasoning applies to the composition of the self-governing bodies of the two Courts. These, through the combined effects of increasing the share of the laity and the draw of stipendiary, are controlled by the government majority: that is, by the Executive. The independence of the judiciary is less when it is subjected, from the point of view of discipline and career, possible conflicts of jurisdiction, reviewing the legality of the acts, the control of a college education in which the Executive will still have the last word. Especially if the chair of the organ of self-government of the PM is responsible to the President of the Court of Cassation.

And finally, it announced the serious distortion of the relationship of direct dependence of the judicial police to the public prosecutor, intended to be limited by ordinary law, and the related possibility to the police to proceed with investigations and without self-control of any magistrate, what guarantees for the ordinary citizen is easy to imagine. In practice, employed by agencies of the Ministries of Interior, Defence, Finance, will carry out independent investigations against anyone, without answering to anyone. But we really think that independent investigations of police or State Police can offer a citizen any more guarantees than the present ones, and that should not be directed in those directions where the government and not an autonomous body, attach greater importance or urgency?

E 'latter aspect that reveals the true extent of the so-called reform antigarantista "epochal." In fact, it irrelevant in terms of effective reform of the justice, it is geared solely to the prosecution policy of taming the political control of the executive and away from them and monitoring the availability of the necessary tools to fulfill their task.

of "epochal" in this reform is the attempt to transfer the prosecution under the control of caste politics, and particularly, the executive, and as a further important step in the design of institutions and the rule of law, which several times and this majority its leaders have expressed.

who is convinced of what should carefully consider how to define its own way to oppose this "reform" on pain of not being able to rationally justify its position, as stated, the fruits are not poisoned in the abstract concept of separation of careers: are downstream, in the manner in which these are implemented, in that space that lies between the general principle and constitutional and the ordinary law.



Gim Cassano (14-03-2011)