di Barbara Spinelli Quando giudichiamo il conflitto fra potere politico e giustizia, conviene sempre alzare gli occhi, guardare oltre i nostri confini, usare la memoria, per capire se davvero chi governa ha in mente una soluzione che migliora le cose o una regressione formidabile, dissimulata dietro finte promesse.
La riforma della giustizia will propose Thursday that Berlusconi is a case, and raises many concerns when it is not dissolved but exacerbates the conflict between public authorities, and in fact intends to revitalize some of these powers. It is a reform that improves but does not despise our legal heritage, and the idea that powers should not be many because only one predominates.
is a regression that not only demeans the Constitution but is at odds with legal principles that the European Union calls on states to comply. Often regression in advancing this way: presenting as rivoluzionaria.È observing what is happening in France and the impression of a retreat Italian confirms dramatically.
Over the past two months, discontent of the French magistrates has deteriorated, and their goal is not new, has become more clear than ever: Free at last by the power of attorney pm politico.Succede so that the Italian heritage become a goal, at the precise moment when Berlusconi would reduce the independence of the judiciary from politics. If before we were considered avant-garde in Europe, in the separation of powers, risk ending up in the queue today.
A radical myopia towards the world, and indifference to the weight that Europe has in our lives (with its binding laws) are the root of what may become a serious impoverishment of legal, democratic, memoria.Alla the basis of this short-sighted indifference there is a double fallacy. Before fallacy: the idea that in a democracy sovereignty is concentrated all the people who elect governments and parliaments are not vetted by third powers. Second fallacy: the fiction of a sort of legal and political self-sufficiency of the nation state, and ignorance of Europe is already part of federal, exercising sovereignty parallel to the States through legislation, common policies, customs also on democratic the separation of powers.
The idea that only one is the decisive power - the people - is often mistaken with democracy but it is not, and Europe has joined with this awareness. The illusion is monolithic legacy of 1789 - better: his Jacobin extremism, nationalism - and explains the special French malaise. In the Jacobin tradition, justice is not an independent institution, notwithstanding Article XVI of the Declaration on the Rights of Man and Citizen of 1789: it is the weapon of the sovereign people, that it shall elect the executive. Here is his habit of origin, and even today the French prosecutors is not for everyone but it maintains a relationship of dependency governo.I magistrates reformers in France do not just rely on complete autonomy, but are fighting for the country internalize constitutional democracy that Europe is a midwife.
is within this framework that claim a genuine constitutional court, and especially the independence of the prosecutor. It is for the latter to conduct the prosecution, as required by Article 112 of our Constitution, not to politics, as happens in Paris and would like Berlusconi in Italy. On 15 December, the French Court of Cassation, requested on remand, held that "the prosecutor is not an independent judicial authority," given that "does not guarantee the independence and impartiality required by the European Convention on Human Rights 'man', and the OECD Convention on Corruption.
no coincidence that the autonomy of those who hopes pm starts in France with the constitutional change the words. In Title VIII is the 'judicial authority ". Many people (among them the association Terra Nova, in a recent report) require that the word authority is replaced by "judicial power." With centuries of Paris rediscovers therefore delay the separation of powers to Montesquieu, is free of Jacobinism, is tired of reduce democracy to universal suffrage: "In France - the report said Terra Nova - justice is no longer the independent power, the guardian of individual freedom, described by Montesquieu. is under protection of the executive. " The more it is subject "to the influence of private interests and partisans.
Justice is a partial, two-speed lenient towards those who are protected by the executive, more and more rapidly towards those who are not protected. " With severe memory and thinking of its history that the French judges rebel. Only a Constitutional Court and an independent prosecutor can become fixed points, the most durable of the changing majorities. Governments are fatal in a democracy. Not the Constitution and justice.
is not only the nation's history to come into play, we have seen, but the Europe that has treasured memories of many, transcending them. Is it to advocate a more independent justice, not requirements of convenience, then the reform most desired by Italians: Shorter process for everyone, not for one or a few. In particular - remember it for years and the jurist Bruno Tinti Marco Travaglio - Europe calls for the careers of the judge and the prosecutor are not separate: "that states, when their legal system so provides, take measures to enable the same person to perform the functions of pm and then a judge, and vice versa, "for" the similarities and complementarities of the two functions' (Recommendation of the Commission of Crime Council of Europe, 06.30.2000).
Berlusconi reform are absent in these constitutional provisions, and is the reason for this is regression. The goal is to put the prosecution in the protection policy, duplicate the Superior Council of Magistracy neutralizing it, remove the police from subjecting pm only political power (perhaps the measure most dangerous, because then the government holds the key to close and open a criminal trial). And it is to separate the careers of the prosecutor and the judge to degrade the prosecutor to "prosecutor", closer to culture the defense lawyer to the judge, while the present order with the public ministry must also consider the exculpatory evidence, not just against the accused. Here is the first reason why separate careers is a risk. It's a real insult to Pm, Tinti explains: "The prosecutor represents the interests of the community, the lawyer and those of his client. For PM does not matter if the accused is convicted, it is important that the guilty are convicted. L ' defense attorney, he is part man, "having the obligation to" make him fulfill a customer or have a smaller penalty. "
What we wonder is why Europe, despite laws and principles, counts so little. In reality it defends the principles with extreme force prior to accession: Candidates must have independent judges and the separation of powers (if Italy was nominated today, certainly would not fit). That said, the Copenhagen criteria set out in '93 for the admission of Eastern European countries: the criteria were not only economic (existence of a robust market economy) but also political and legal (presence of stable institutions guaranteeing democracy , rule of law, human rights, respect, protection of minorities). Even more stringent are the criteria in the case of Turkey.
With countries that are already in hand, Europe is timid, inert. Passing the front door only weigh the economic parameters and was even an umbrella that shelters the authoritarianism. The more you're in, and respects the financial parameters, the more you are free to do whatever you please with democracy. If only you would, Europe could act to stem. The Lisbon Treaty in Articles 6 and 7 provides interventions and sanctions for those countries of the Union where there are serious risks for democracy and for freedom. But so far the articles are not relied upon nor applied to Italy. Yet the risks are still there now and are really serious.
There is much talk of the absence of antibodies, in Italy. But Europe has the same defects although they have instruments and laws to safeguard its democracy.
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