The opposing “belligerent” fronts shy away from reasonable information on the technical-legal contents of the reform. It comes to opposing the “real” reform with a dystopian idea of imaginary future scenarios. If some brave person tries to get to the merits, the stubborn no front’s response is: “it’s not written today, but who knows tomorrow?”.
The utopian spirit of the Founding Fathers was quite different. Piero Calamandrei proposed to the 75 wise men of the Constituent Assembly a draft text which, within the functional independence of Judges, understood in a broad sense, already proposed a mutual independence of Judges and Public Prosecutors: “Judges in the exercise of their functions depend only on the Law, the same independence is held by the magistrates of the Public Prosecutor’s Office in the exercise of criminal prosecution and other functions assigned to them by the Law.”
Moreover, immediately after the Liberation, the left supported the battle for the direct election by the people of the Public Prosecutor. Rousseau had long made it a creed. Judiciary understood as a judicial Order, not power: today, even more clearly, “an order, autonomous and independent from any other power, composed of magistrates of the judging career and the prosecuting career”.
Nothing new, rather a revisitation of the old. The two distinct magistracies are mutually free, autonomous, and independent even from each other.
Previously, in the distant Rocco code, the inquisitorial system concentrated investigative powers in the figure of the Public Prosecutor, the “undisturbed” and solitary protagonist of the Accusation. The accusatory system introduced in 1988-1989, instead, opposes Accusation and Defense, parties tending to equality, before a third and impartial Judge, guaranteeing full adversarial proceedings and based on the presumption of innocence. The Judge is the primary Aristotelian mover, the other subjects – Public Prosecutor and defense – are parties. This scenario has existed for decades; the constitutional law tries to bring it to completion.
In 1999, over 500,000 voters supported the first referendum on the separation of careers of judging and prosecuting magistrates, promoted by Radicals, Social Democrats, and Republicans: liberal and anti-authoritarian minorities. On February 7, 2000, the Constitutional Court, in a formation that made the history of our high legal thought (Vassalli as President, Mirabelli, Zagrelbeski, Onida, Contri, Neppi Modona), not only declared it admissible but noted how, already on this point, the original text of the Constitution “had considered not to impose, or conversely to preclude, the configuration of a single career or separate careers between judging magistrates and prosecuting magistrates.” Therefore, a repealing referendum was admitted requiring a quorum of at least 50% + 1 turnout. This threshold was not reached, but significantly, the yes vote in favor of the indicated repeals, considered preclusive of a real separation of careers, overwhelmingly won with 64%, against 35%.
But still. Another repealing referendum arrived in March 2022, after a new admissibility judgment. The names of those wise men: Giuliano Amato, Nicolò Zanon, Silvana Sciarra, Francesco Viganò, Augusto Antonio Barbera. The “wise men” of the distant past, recent past, and present do not give up! The result was even more “brutal”: yes rose to 70%, no stopped at 30%. The quorum was not reached. The Parliament, then in a very different unity, intervened with the constitutional law of November 23, 1999, which brilliantly reached two-thirds in both Chambers (Parliament and Senate), with double voting. Article 111, a milestone: “Jurisdiction is exercised through a fair trial regulated by law. Every trial takes place in adversarial proceedings between the parties, on equal terms before a third and impartial judge. (…) The criminal trial is governed by the principle of adversarial proceedings in the formation of evidence.” It was the era of the D’Alema government, ministers Mattarella and Amato. It was effectively confirmed that for more than 50 years the reform of the judicial order has been a flagship of guarantist, progressive, and liberal forces in the highest sense of the term.
The current acrimony is unjustified in the present and, given the past, unjustifiable.
One must confront Article 138 of the Constitution, unchanged over these 80 years: the people called for the third time. To promulgate a non-repealing revision law requires a super-qualified majority of two-thirds of Parliament in both branches, Chamber and Senate, in two separate sessions, plus, in the case of a merely confirmatory referendum, the request must come from one-fifth of the members of a chamber, from 500,000 voters, from 5 regional councils, and a new admissibility judgment by the court. A highly complex process, after which the Constituent Assembly even decided on the superfluity of the quorum. Indeed, reasoning on decisions of great importance, historically established, the jurist would be inclined to think that a compact establishment must exist and that the arguments defined as “oppositional” should be commensurate with adequate and accurate information, given and consequently received.
It is surprising how the National Magistrates Association, in a now normatively and historically established framework, directs the committee for the No. It is simply incomprehensible how the judging magistracy, exalted in its role, autonomy, and decision-making responsibility, can share interests with a significant part of the criminal process, the prosecuting magistracy, still “a party.”
This does not happen for the football referee, but even children know that in capture-the-flag the “chorister” can reliably only be the teacher or the willing impartial janitor. The facts, real, not factoids.
Criminal prosecution is and remains mandatory and the Public Prosecutor directly uses his own police, which is the judicial police. The Public Prosecutor is and remains the “gatekeeper,” “armed” by his police, and holds the keys to access the criminal process. The decisive node, in that “lock,” contains all the human cost of justice. However, this allows solving a first problem which is the alleged uselessness of the new regulatory framework regarding effectiveness.
The reform does not have the power to intervene on the choices, which are indeed political, of the current Government. Every project of decriminalization or deflationary measures of criminal gigantism has fallen on deaf ears, so the clogging of the machine is only attributable to those who have vastly expanded the “gate” of entry to criminal law. It is true, however, that the Public Prosecutor, with the same and sole registration in the register of suspects and guarantee information, decides the investigative fates of the plethora of those who can be investigated/suspected. Referring to the most recent statistics (2024), the Preliminary Hearing Judge (lazy?) with very brief reasons accepts 94% of requests for authorization to carry out telephone and environmental interceptions, a percentage that rises to 99% when it comes to extending the same interceptions. Requests for extension of preliminary investigations, which the Public Prosecutor addresses to the Preliminary Hearing Judge, approach an “automatic acceptance” of about 85%.
The Cartabia law tried to unlink the Public Prosecutor’s request for indictment from the outcome of the preliminary hearing, an outcome decided by the Judge and which can be acceptance of the indictment request or acquittal. Well, even today, and one could perhaps attempt a statistic extended even to 2025, despite the indictment request imposing on the Preliminary Hearing Judge (a Judge different from the Preliminary Hearing Judge), a prognosis of reasonable prediction of future conviction, this has not changed the numbers situation. Always a 90% acceptance rate of indictment requests. And so, one becomes defendants, with the consequent stigma, upstream and before a trial examination, of a reasonable prediction of conviction. The trial judge will see it, but the damage linked to the mere disvalue of the process is already done.
Well, from the genetic moment of the criminal case, the structural separation between Public Prosecutor and Judge “jumps”: with it, the otherness of the latter ceases. The judge is not third, not even in an “aesthetic” sense. It is difficult to believe him independent if he does not even appear so. It is an old problem, dating back to Caesar’s wife. The attempt of the new constitutional law approved is precisely to combine a problem of substance with a problem of image. The new law should not be asked for a mechanism that is not clogged and therefore more streamlined and effective: this is the legislator’s task. At least, a fairer mechanism must be demanded.
But there is more. Given that oxymoron is a rhetorical figure that juxtaposes two words of opposite meaning, creating an apparent paradox or a strong antithesis that should surprise or disconcert the reader, can an “impartial party” exist in nature? The paradox. A textual interpretation of Article 358 of the Code of Criminal Procedure would seem to impose on the Public Prosecutor the duty (the conditional is mandatory, despite the text of the norm being clear) of investigations also on facts or circumstances in favor of the person under investigation. With obvious consequences at least disciplinary, if not even on the criminal level of omission.
Well, whoever wishes can undertake research on violations of the duty of diligence by the Public Prosecutor in this matter in the last decade and evaluated as disciplinary functional offenses. There are no precedents of guilt, not even in more remote times. The Public Prosecutor has always been considered the absolute and exclusive master of his investigations, and thus judged by the Superior Council of the Judiciary, an organ necessarily so far unique, composed of Judges and prosecutors: quis custodiet ipsos custodes?
It is legitimate to think that a prosecuting order that takes the path of crime for hiding decisive documents that exonerate defendants commits not only a very serious crime but also a disciplinary offense that, by the mere fact of being committed, brings discredit to the entire category. The author believes that the bad apples in the Magistracies are few: rooting out wrongdoers in their bodies should be normal, a duty of self-defense. Now we come to the issues raised by Articles 104 and 105 of the Constitution of the reform, which address the problem of the double superior council, one relating to the judging magistracy and one to the prosecuting magistracy. The outraged astonishment seems directed at procedures that entrust partial composition of the two superior councils as well as the high disciplinary court to random selection. In general, even this in the current system is not new: in extremely delicate cases, the draw already has provisions both in criminal procedure and in the Constitution itself and for some time.
In criminal procedure, the “naked” and untempered draw of lay judges in the Court of Assizes and Court of Assizes of Appeal has never caused any scandal worldwide. And it has not caused any scandal that Constitutional Law 1/1989, with a large majority and, moreover, without a request for a confirmatory referendum, established that accusatory trials would take place in this special form only against the President of the Republic. But, on the point of election by draw, it was specified that the draw took place from a list of citizens having the requirements for eligibility as senator, through a choice of Parliament on the model of ordinary judges. So fate remains, but tempered: we do not believe that the successive Presidents of the Republic felt humiliated and offended.
We are always at the same false problem—reform: either dystopian cataclysm or useless toy.
Beyond the unusual recourse to dystopian normative data. We are between Orwell’s 1984, Fahrenheit 451, Metropolis in the future of the soothsayers one should read a constitutional abrogative revision this time, with prosecuting magistracy subjected to the Executive Power in disregard of Article 104, paragraph 1, of the Constitution, still awaiting current popular verification.
The argument of the reduced interchangeability sanctioned by Cartabia of functions would prove too much, because it would attest a contiguity and community of functions which is precisely what one wants to avoid: few or many as they may be, how can the subjects feel interchangeable as parties or third judges? Therefore, the need for a genetic system reform that is and appears as such: back to Caesar’s wife.
Even the criticisms of the draw seem to violate the value in itself of the broad pool of magistrates graduated, winners of a public competition, with annual merit evaluations, in some cases with many years of seniority and with a past as legitimacy judges: in 97% of cases already experienced in associationalism. More tempered than this: magistrates should really esteem each other more, it’s a safe bet.
Indeed, 97% of Italian magistrates are members of the National Magistrates Association, thus reaching a percentage that anyone could define as exhilarating or disturbing. A simple arithmetic proportion leads to consider with near certainty that the drawing pools will still, with very high probability, be pools of members of the Association, detached, this yes, from factional elements, no longer easily manageable.
Chasing the last of utopias, the hope is that the referendum represents an opportunity for all voters to regain autonomy of their own thought and conscious judgment.
