Photo credits Nick Zonna
Everyone is talking about epochal reform. Reading the newspapers of the last two days it seems to be in the presence of the reform of the century. But if we then look at the cards, the impression is that the mountain has given birth to a mouse.
We are talking about the justice reform that Minister Marta Cartabia presented to the Council of Ministers, receiving the unanimous okay of all the governing parties. A springboard for the former President of the Constitutional Court towards the Quirinale. But what exactly is it about? The Minister made only three proposals in the area of criminal procedure, but nothing in relation to the reform of the judiciary. In short, Cartabia has brought to the Council of Ministers the only proposals on which there is convergence in the government, with a reasonable probability that they will be approved in Parliament by the parliamentary groups that support the Draghi executive.
Let’s see the three proposals of the Minister:
Prescription: the rule introduced by the Bonafede reform which provides for the suspension of the statute of limitations at the end of the first instance judgment remains in force, with the introduction, however, of precise terms of “inadmissibility”. In the event that the judgment is not reached within two years from the appeal and one year from the filing of the appeal with the Supreme Court, the offense will be declared “inadmissible”. The terms may be extended by one year for the appeal and by six months for the Supreme Court in the case of the most serious crimes or of particular social alarm, with the right for the accused – in any case – to renounce the declaration of inadmissibility if intended to reach a definitive ruling (as already happens for the prescription). A proposal that satisfies the M5S only from a lexical point of view, which sees its statute of limitations saved only until the conclusion of the first degree of judgment, then canceled by the inadmissibility. What is digested in order to remain attached to the chair! With the impossibility of proceeding, in fact, the process dies if the terms proposed by the Minister are exceeded. Surely a measure of civility, but tighten tightly it is a proposal that does nothing but respect the indications of the EU which for decades has been asking us to reduce the times of trials. Nothing new under the sun, a shareable but undoubtedly modest intervention.
Appeal on appeal: the Minister’s idea is to strengthen the appeal filter introduced by the Orlando reform in 2017 with the introduction of an additional filter, the one already envisaged for the appeal to the Supreme Court. The proposal of the holder of the department of via Arenula is to introduce the declaration of inadmissibility of the appeal “for lack of reasons”, exactly as it happens for the appeal before the court of legitimacy. A proposal that we do not find at all in agreement, in fact the main function of the appeal is to submit to three different judges the sentence issued by the court and considered unjust by the accused. No foreclosure can be imposed on this right. From the Criminal Procedure Code of 1865 to the entry into force of the Orlando reform (2018) it was sufficient for the accused, personally and / or through his lawyer, to file a simple declaration at the registry of the judge who had issued the sentence deemed unjust to propose an appeal on appeal, without even specifying the reasons (the so-called appeal subject to grounds), which were then explained at a later time. If the Minister’s proposal is approved by the chambers, and we believe that there is a good chance that this will happen, the accused risks being denied the appeal judgment because it is summarily deemed inadmissible by the Court (with what objective criteria it is not yet known), precluding his sacrosanct right to obtain a (re) discussion of the merits in the context of appeal (the so-called revisio prioris instantiae). And this would be the great justice reform? Would this be the idea that the “best” have of procedural guarantees?
Priority criteria in the exercise of the criminal action and in the treatment of trials: the Minister’s proposal is to determine by law transparent and predetermined priority criteria both in the choice of crimes to which priority is given over others, and in the handling of proceedings, as is already the case today through the indications established by the heads of the legal offices holding prosecution on the basis of ministerial circulars submitted for approval by the CSM. The Minister’s idea is to attribute dignity of ordinary rank to administrative rules, in such a way as to guarantee transparency and avoid unequal treatment from one judicial district to another. In our opinion, the proposal has a limit: to predetermine by law (therefore through a source of law of ordinary rank which in itself presents the characteristics of generality and abstractness) criteria of priority both in the exercise of the criminal action and in the treatment of trials valid for the entire national territory, it does not take into account the different territorial realities. How can we think that Sicily, Calabria and Campania have the same priorities (both in the exercise of criminal action and in the treatment of trials) as Veneto, Lombardy and Piedmont? How can a state law determine a priori priority criteria valid for the whole national territory without taking into account the territorial realities of the individual districts? Doubts remain.
The salient fact is that, despite the work carried out by the two Commissions set up by the Minister shortly after taking office in via Arenula (Luciani on the judicial order and Lattanzi on the trials), he took very little from those two reports. At the moment, the Minister pretended that the report produced by the Luciani Commission did not exist; the focal points of the work of the Lattanzi Commission remained out of the question. Think of the Lattanzi Commission proposal to make the judgments of no place to proceed unappealable or to make the choice of alternative rites more convenient for the accused due to greater benefits in terms of punishment. Or to the proposal to extend the hypotheses in which the judge could pronounce a sentence of acquittal due to particular tenuousness of the fact. The proposals put forward by the Minister leave all this out, like the reform of the civil process, completely absent and forgotten. Yet, in the matter of civil procedure, the Lattanzi Commission proposed a wider use of alternative instruments to the trial, such as civil and commercial mediation which has worked well in the last eight years, but the Minister has limited himself to issues not able to to give a real turning point to the theme of justice.
At the moment, Minister Cartabia has put forward the only proposals on which an agreement was possible between all the parties of the government majority, including the 5 Stars. Conte’s critical stance is instrumental to the internal struggle of the Movement. Three proposals concerning the criminal trial and none concerning the judicial system. Considering that four of the six referendum questions proposed by Lega and Radicali exclusively concern the judicial system (system of election of the CSM, separation of careers, fair evaluation of magistrates and direct civil liability of judges), while the other two – in the matter of trial criminal – are not among the reform proposals advanced by the Minister (precautionary custody and effects of the Severino Law), it is desirable that Cartabia does not want to get in the way of the referendum, which at the moment remain the only way for a concrete reform of the judicial system. The Minister just this morning said that shortly he will also deal with CSM, but we do not know how he wants to intervene and if he will do it to prevent the admissibility of that particular referendum question on the obligation to stand as candidates only in organized lists. We’ll see.
For now, the three proposals put forward by Minister Cartabia are not the answer to the problems of justice, only warm panels. Uno tool to book the seven-year stay at the Quirinale after Mattarella, and as Mattarella would like. Fortunately, there will be referendums. Maybe.