start this post recommended the reading in the same piece Francesco Costa, who says things that I recognize good sense even if not all, to my way of thinking, are fully shared. Recalling also the ' articulated the constitutional draft law, to take an eye while reading.
begin with the separation of careers . In fact, the unity of the judiciary and prosecutor's career is a bit 'a peculiarity of the Italian system, since in most systems continental, and in all the Anglo-Saxon systems, the PM is not part of the judiciary or in the rare cases where it belongs, follows a separate career path.
This does not mean that there is an incompatibility between ontological accuser (or lawyer) and judge in its Anglo-Saxon legal systems, in fact, the courts are mostly (or, as in Britain, only) persons who have previously held, and successfully, the role of prosecutor (or defense) and therefore, although not part of that order or body, they have the commonality of knowledge, practices and professional bias that we can find today in the Italian and that we are represented as unashamedly shame.
claim, as does the Berlusconi government, the contiguity between the judge and PM is a source of guilt in a criminal trial is therefore wrong for two reasons: one, because that contiguity is a bit 'all over the world, the other that the guarantee of fairness is not in having offices and separate careers, but in the professionalism of those who must comply with the law and justify their action.
If we accept the thesis of Berlusconi, then we should also consider incompatible with Leonardo the Inter bench, or surprised that Cassano or Pazzini could take the field against Sampdoria. They can do this because they are professionals, do not think about never even a second to pull out of the door not to displease the goalkeeper with which even a few weeks earlier shared the hotel room.
said then that the separation of careers is not a solution to a problem, if there is the problem, the fact remains that the separation itself may not even be a totem or taboo: if the rest of the world goes on in this way , we can very well marry such a model, provided it forms part of an overall reform and rational (and in this case, I add, as in the rest of the world will also be able to decide who chooses a career in a certain time of their lives, to sit on the other hand, take exams, doing competitions and so on). As for the duplication of
CSM, it would be an obvious consequence of the duplication of their careers, and then I would not spend it on too many words to the contrary would be absurd.
bizarre, to say the least, the rule would that members who are judges of the two MSM were "elected after the draw of the candidates." You know what I think of the primaries, and to introduce the primary draw is, well, a less suitable means to ensure the best selection. It seems that, an idea only motivated by the desire to diminish the power of stipendiary component in favor of the political appointees whose members, so they would be precisely elected. As the Court of
discipline, I frankly do not see why, as a body would be substantially duplicative decide CSM is intended only to disciplinary action, but has the same mode of formation of the same CSM. If it is stated that the disciplinary proceedings today is a joke you are probably right, but not that create a twin of the other body, changing his name, can be an effective solution. The only difference I see between the two future CSM and the Court of discipline, is the fact that in the latter department stipendiary component is made up of individuals "chosen" (not "elected") after the draw, but I do not know if this difference be a sign of something other than the inability of the legislature to write laws that are made well.
We come to the important things, as is often the case that are less obvious. The new text of art. 101 would ensure the constitutional guarantee of 'autonomy and independence courts alone, and the last paragraph of the new art. 104 would mean that the PM is organized according to "rules of the judicial system that guarantees autonomy and independence." The two things look identical but are very different, since the judiciary is an ordinary law which can be changed with blows of a majority in Parliament (and we know what it means majority of strokes in a majority system where MPs are appointed by the party secretaries). In fact, then the autonomy and independence of the PM would be much less assured: after all, the situation would be created that would correspond to that now existing in France, where the prosecutor, although part of Magistrates and enjoying delel about guarantees, not independent of the executive and therefore can not be considered a "judicial authority", as the European Court of Human Rights ruling in 23/11/2010 "Moulin vs. . France."
PM We want a dependent by the Executive? It is not a taboo, we said, but that we have the courage to say so clearly, and remember that the dependence of the PM is the model followed by the Executive not only in France but also in all the ex-communist states and in Italy and Germany between the Wars.
We come now to the question of prohibition reformatio in pejus of acquittals. You must understand: you can not marry the accusatory model, bringing it to its limits, ensuring all the way logical and less logical equality between the prosecution and defense, and then eventually decide that the goals count double in the house. If the prosecution and defense are on the very same plan, then they must also have the same opportunity to appeal against the sentences in case of defeat. Otherwise they are not the same plane and one of the teams ha comprato l'arbitro. Lasciate perdere che quello messo peggio sia il PM: c'è il caso del Sofri anziano, certo; ma di contro ci sono tanti casi di criminali mafiosi che l'avrebbero sfangata in primo grado e poi sono stati condannati in appello, e giustamente. Del resto basta una banale considerazione: oggi se il giudice di primo grado all'esito del dibattimanto ha un dubbio che non è stato chiarito, può pronunciare una sentenza assolutoria, come prevede la legge, sapendo che se del caso in appello la questione potrà essere approfondita. Un domani, sapendo che dall'assoluzione non si può tornare indietro, condannerebbe senza tante storie, lasciando all'imputato l'onere di appellarsi a sua volta: e il sistema sarebbe distorto as it is today but worse.
(sorry but I stop, it's late: the anacoluthon misprints and they settle down later with the rest of the considerations)
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