Domenico Gallo So thundered that it rained! Eventually, after a barrage of announcements, the Council of Ministers has given birth to the long-awaited era of justice reform. Commentators were quick to point out that the wording of the reform were cleared more innovative steps to avoid irritating the tenant of the Quirinal, as the appointment by the Parliament of the Attorney General of the Supreme Court, but with everything, there's innovations are enough to upset the whole system constitutional. And the worst is yet to come because the bills initiated by the government they need authorization for the deposit by the President of the Republic and should be cleaned by the rules more smelly, then emerge in the course of the legislative process entrusted to the hand of some Member compliant.
is also known that the devil is in the details in this case are the 11 rules of implementation are proclaiming, the drafts of which - of course - are not available. Yet already by the beginning of reform shows a drawing that reach deep, not so much about justice, but on democracy, deeply disfiguring the model of democracy envisioned by the constituents, based on an insuperable division of powers.
The ordering principle of constitutional democracy, which provides for the distribution and diffusion of power among a plurality of separate entities that interact in a system of mutual checks and balances, encouraging a rash of Berlusconi which defined the Constitution hell. How could tolerate, then, the scandal of the power split so inconsistent with the Constitution of Arcore, where all powers converge in the hands of a political leader? The first stone of the scandal has made since independence of the judiciary that the Constitution wanted to ensure the highest level to ensure the citizens - as much as possible - a judge peaceful manner and not be affected by the exercise of political power and government, because, as stated in art. 101 "judges are subject only to the law."
To achieve this, the Constitution has guarded the independence of the body of judges and prosecutors, minus the management of recruitment, career development and transfer and disciplinary action from the executive, through the establishment (Article 104) of the Higher Judiciary Council, whose members are elected for two-thirds of all the magistrates and one third by Parliament. It also means that the power court in its exercise is not influenced by either internal hierarchies (Article 107: "Judges are distinguished only by their different functions) and is inextricably bound to the canon of equality, through the mandatory prosecution (Article .112).
reform "era," Berlusconi's attacks all (everyone) the arrangements in place to oversee the independence of the judiciary, not denying it openly, but weakened and digging from the inside to turn them into empty shells.
If the Constitution, in defense of independence, established the principle of self-government of the judiciary providing that two-thirds of the members of the Board of Governors must be elected by the magistrates, the "reform era" neutralizes the self-government through two converging mechanisms: a reduction to 50% of the member elected by the magistrates and judges for the ban to choose their representatives, providing the draw of eligible candidates.
This will be achieved under the facade of self-government of the judiciary in fact strongly influenced by politics. And politics will put his feet on the plate also in disciplinary proceedings with the introduction of a Court Disciplinary Board, whose members are also elected by Parliament for the middle and half by the magistrates, and also the principle of the judiciary is resized dell'inamovibilità as established through common law.
If the Constitution has inextricably linked the fate of the Public Prosecutor to the courts, to avoid the purposes of investigations to be drawn into the orbit of political power, the "reform era" cut this link and create the conditions for neutralize the independence of the prosecutor through two converging mechanisms: Resize the rule that the court has directly Judicial Police (Rule 109) stating that this will happen in the manner prescribed by law and resize the rule of mandatory prosecution, providing that the PM has an obligation to exercise "according to the criteria established by law." Finally, to complete the attraction of the PM in the political orbit, it is expected that the Minister Justice has to report to Parliament annually on the exercise of prosecution. In other words the Minister of Justice must ingest regarding criminal proceedings and that the rest is a consequence of the fact that the prosecution is no longer required, per se, but must be guided by criteria established by the policy.
To complete the picture is fished out of the law Pecorella, the Court Constitutional declared unconstitutional, providing that the acquittal may be appealed only in cases provided by law. In the press conference to present the reform era, Berlusconi said that if he had been in force this new system of justice would not be there, "the flooding, the invasion of the judiciary in politics and situations that have resulted throughout history the last twenty years changes in government, to a cancellation of the ruling class in '93. "For once we agree with him. It 's true: if you demolish the building the independence of the judiciary is not possible' exercise of judicial review in respect of arbitrary committed by members of the public authorities and private and at the same time diminish the guarantees of freedom of each of us because the political influence on the work of judges can be directed so much to make the impunity of the ruling class as to obtain unjustified persecution opponents.
But that's not how you build a system?
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