The debate on the regulation of wiretapping must inevitably be accompanied by a reflection across the state of health and the ills that plague the administration of justice in Italy and, especially, the possible cures. A reflection of this kind is given in the dialogue between Charles and Nordio Giuliano Pisapia: "Waiting for justice. Dialogue on possible reforms "(pref. S. Romano, Guerini e Associati, 2010, 191 pp., 18, 50 €). Carlo Nordio is deputy prosecutor in Venice, "prosecutor refractory to any political stance but certainly liberal," while Giuliano Pisapia is a lawyer "on the left politically engaged" (he was elected to parliament in the ranks of the Communist PRC). Beyond the different political stance, however, the two have in common the fact that he presided over (under different governments), the Commission for the reform of the penal code and, above all, a vision of reform that would define "long term", that little attention to political contingencies-election. Romano writes in the preface, both in their constitutional duties, have come to conclusions very similar, but their proposals were not endorsed by the political class, because this "instead of working on medium and long time for the renewal of the criminal justice system, prefer to live day by day chasing the mood of public opinion or the calls from beyond the Tiber "(p. 10), with reference a measure such as a pardon or to the numerous "security packages" that were launched by governments of the center and center-right. On measures on which we can discuss (and the two authors do), but from the point of view of the method have the serious defect of not taking into consideration the long term consequences and not substantially change the underlying problems.
The book is divided into two parts, the first of which analyzes the "diseases of justice", while the second reflects on "poisons and antidotes." The second part is more delicious, because, beyond the technical issues (which are important) widens the look on some "questions of principle" that are particularly close to heart (and, I believe, are particularly dear to those who share a position "Guarantor"). For the insiders, I report only the short end ("Possible Reforms"), in which the authors summarize their proposals for reform in three sections, devoted respectively to "procedural law", the "substantive criminal law" and to "sector regulated directions." The first part, however, is important because it presents a very lucid discussion of the ills of our judicial system and, generally, the administration of justice (while the second focuses on the relationship between justice and politics); examination that, within the space of a review can not be considered in detail. Why limit myself to certain questions that "subjectively" me being me most.
interceptions
After the first chapters, devoted to long periods of Justice, the slowness of the bureaucratic machinery, resources and waste system, the fourth chapter deals with "hot-tapping. According to the North, which the dialogue takes on the role of the disenchanted realism "(while it Pisapia the part of the 'ideal generated), the reality is that the interception of telephone and environmental are "a small number of useful (and perhaps necessary), but overall they are expensive and harmful ... harmful to the citizen who suffers annoying intrusions, and the investigator who flattens them easy to carry on, giving up a more complex instruments, but also more reliable "(p. 45). interceptions, wisely handled, you may say it all, in deference to that of Richelieu, give me six lines of the most honest of men and find a way to have him hanged. interceptions, then as a "necessary evil", "evil" because they go against the art. 15 of the Constitution (which protects the freedom and privacy of our communications), "necessary" as an investigative tool, but often very poor instrument to its limits and "the dangers associated with their liberal use" (p. 46). The idea of \u200b\u200bNorth and that the interception should not be used as evidence but only as an investigative tool, "the truth is that the intercepts were processed by means of gathering evidence to test itself: elements of a dispute, and catch even convictions, then at the end are usually void "(p. 49). As for the "theory", Pisapia is less rigid, for him, in some cases, "the interceptions, including environmental, are conclusive evidence ... That said, I repeat that I am absolutely convinced the need for some changes to the current legislation "(p. 50). Both also express reservations about the reform project, because" it is wrong that we can intercept only in the presence of extremely serious crimes "(Pisapia) and reform as it is, "contains too much, and with too little ... because keeping the intercepts as evidence allows access not only to judges and police officers that have to carry them out, but the lawyers and parties entitled to select the useful points ... But it contains too little for severely limits the freedom of the press during the investigation phase "(north). Both, finally, I agree in condemning the publication of conversations (which are often criminally negligible) in print. Pisapia: "I firmly believe that the publication of wiretapping ... ... it is a barbarism - and here reflect those who decide these publications today and tomorrow could be a rude-violence victims. I have the [...] 'impression, however, that many do not want to see the barbarism in a ruling and closing the door to change. Many do not know whether in good or bad faith, they tend to confuse the right and duty to inform the alleged right to commit crimes; freedom of the press with the freedom to defame, misinform, "rubbish." Because there are loopholes: the trial must be public, investigations are not public "(p. 55).
punishment and custody
Other interesting bits are the first part of the debate on capital punishment and the use (and abuse) of preventive detention. Both are d 'agreement in condemning, in the words Pisapia, the "panpenalismo" of our system, and argued that the penalties should be increased but not decreased. The paradox is reported from north of the "profound discrepancy between the severity of penalties imposed by the Code , that is generally provided for the offenders and those actually imposed by the court ... Our system is well thought out: if you commit a crime theoretically risks a prison high, but in fact the court you will inflict a very low, and most suspended "(p. 66). Pisapia, for its part, points out that in principle all speak of the need to reach a" minimal criminal " "decriminalizing some minor offenses, so as not to overburden the courts and prisons:" We must stop the panpenalismo. Pretend that you can solve everything, including social problems, with the Penal Code is just propaganda, dangerous demagoguery. The first step is to really restrict the conduct of criminal activity to the facts really serious and punishable by appropriate administrative sanctions those offenses which do not cause disruptions or public alarm "(p.67). The use of custody, Pisapia - after reporting a chilling case happened to a senior worker arrested on charges of involvement in a criminal association, which goes to the process after 3 years of imprisonment, is sentenced to four years in the first instance, acquitted on appeal and, finally, after more than six years since the beginning of the ordeal, finally acquitted in the Supreme Court (pp. 72-73) - argues strongly that "The abuse of preventive detention is a major distortion of our criminal justice system" because "it is undeniable this would rarely be used for purposes quite different from those required by law, such as to "anticipate" the penalty (although the process could end with an acquittal) or to obtain confessions (almost necessarily that the suspect is guilty and that the assumption of departure is the presumption of guilt) "(p. 75). The problem lies not in the Code, which states that custody can be applied only if there are serious indications of guilt, and when all other measures prove inadequate (as stated in art. 275, cited by Pisapia), but in the function "unofficially" that is performed by this instrument, on remand, in cases where there is no danger to the community nor the risk of contamination of evidence used to "anticipate a sentence that is feared is not granted then even if convicted. This is not acceptable, because the concept and distorts the very meaning of justice can never be anticipated or vengeance or punishment following conviction for a future "(p. 77). The role of the CSM
Turning to the second part, the dialogue focuses primarily on the issue of constitutional reforms. Those pressing for full implementation of the adversarial process, says the north, are three: the reformulation of the structure and the election of the Superior Council of Magistracy, the elimination of mandatory prosecution and the separation of careers. As a corollary, the reintroduction of parliamentary immunity " (P. 140). Nordio Pisapia and agree that the CSM is a prisoner of the excessive power of the currents, because of one or other of these to determine the allocation of posts and promotions, while the same disciplinary investigations are influenced by the games reciprocal favors, even if there are different solutions: Pisapia opposes the reform of the CSM was approved in 2002, which reduced the number of members from 30 to 24, while "there was quite the need to increase due to the introduction of the concept of justice of the peace and the doubling of the judiciary "(p. 142), while North thought the draw as the only remedy, because" the extraction eliminate the root of lots in the bond that unites voters and elected insidious, and that raises the suspicion that ... as dog bites dog, so each judge is in fact protected by its sponsors at the time that he was asked to vote "(p. 143 ). Regarding the role of the CSM, the opinions are in agreement. According Pisapia is no longer sustainable in a situation where the auditors are elected by the controlled and, therefore, think of a "High Court" is competent to decide on matters of ethics and disciplinary procedures of those who have a role in administration of justice. Even heavier than the opinion of North notes that "concentrations of power like that judges on the lives of people and the State, free from real responsibility, it seems intolerable and, indeed, it is "the Italian public prosecutor is the chief of police, heads the investigation, and may start and perform it alone . This is similar to the U.S. district attorney. Both have a tremendous power, but in the mind Use this power is controlled by the people, as the elected prosecutor, we is not controlled by anyone. [...] From a substantive point of view, the Italian PM is the only body in the world who enjoy power without responsibility equivalent ... It 's useless to say that there is control law, appeals and the SCM, we are savvy enough and mature enough to understand that it is not formal but substantial control "(p. 145).
Prosecution and separation of careers
On the issue of mandatory prosecution, the opinions of the authors disagree. To the north, as we have said, the installation process involves the prosecution's discretion to prosecute, his ritrattabilità , the wide use of the pact, while in Italy the prosecution is required and irritrattabile, the settlements will be reduced to minimum, the careers of judges and magistrates do not distinguish between investigators. The mandatory criminal, says North, "means the duty of the magistrate to proceed whenever it becomes aware of a crime. But this principle, that in itself should ensure the equality of citizens before the law was due to a discretion in the investigation that often borders on arbitrariness "(p. 146). Pisapia, however, supports all the forces that "the mandatory prosecution remains a sacrosanct principle and the recognition of an essential value, the realization of equality of citizens before the law" and, knowing that the current situation is in fact discretion, believes that "worth fighting for the principles into reality, including possibly seeking a mediation (noble), a balance (equal) allowing you to get as close as possible to a satisfactory solution "(p. 147), because, paradoxically, the discretion to prosecute increase the power of the PM instead of reducing it. As for the separation of careers between judges and prosecutors, finally, the agreement is complete, so that North is Pisapia believe is a necessary reform. A magistrate, North points out that his colleagues are terrified of the "suspicion that the separation of careers is the antechamber of the subjection of the executive PM" but the fear is unfounded because "prosecutors may well be released by the courts and enjoy the same independence as judges may be separate from PM while being purely political appointment, as are members of the U.S. Supreme Court" ( p. 150). For its part, Pisapia adds that the separation of careers is also needed to create greater confidence in the city, because "even a child understands that once the arbitrator can not wear the uniform of jacket and another black player" and because only the actual impartiality of those who must decide between theses different, often conflicting, it can give people the necessary confidence that those who viewed both the above parties (pp. 151-2). Conclusion
outdated reference to the impartiality of the judge, who embodies the very concept of justice (for instance, the scale), back in a few important points of north, which I like to bring to a conclusion of this review. The problem is: some elements of the judiciary (and not just one) are concerned that the full implementation of the adversarial process is a weakening of the fight against corruption and the mafia. But, North rightly points out that the "fight" against corruption and the mafia is not and should not be the duty of justice - with all due respect to writers engaged Appeals to sign, that the reviewer does not name to avoid being accused of violating anti-mafia and these fears, according Nordio, resulting from the injury, "the result of good faith as a generator of bad justice" that "judges must fight against someone or something" and if one assumes that "the magistrate must attack and defeat crime, the more the process is carried out, the more the company is inadequate," but the company obviously is not the one (if not, better Torture) but if "you agree with the principles of liberal democracy, we must agree that the concept of struggle is incompatible with that of jurisdiction. The magistrates should only apply the law, absolving or condemning based on evidence gathered in an order governed by codes "(p. 155). The independence and impartiality of the judge, who comes from the independence of the law itself (which is not made for the benefit of some and against others) and is often cited in error, is an important reminder to distract the judges from performing tasks and missions "political" or, worse, "apocalyptic." The administration of justice, he remembered (opposed by anyone), Leonardo Sciascia, not a war against someone (ie, not even the war against the Mafia or "anti-mafia assault"), because war is the continuation of politics by other means and the distinction between judges and politicians is the foundation of our legal culture.
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