Monday, March 14, 2011
Sunday, March 13, 2011
Smelly Urine Vitamine B
Point by point
Giuliano Ferrara today writes a long piece in the newspaper of the brother of the Prime Minister, explaining the reasons why we should do justice reform proposed by the Government chaired by the brother of the owner of the newspaper that hosts the piece.
Ferrara is not the first idiot hacks, and in fact, his article is very suggestive: to dismantle it is necessary to analyze the steps salient point by point.
The embankment to the potential conflict of interest or customization of the link between one of the parties to the proceedings and the court lies in the professionalism of the judge, he has the obligation to justify its measures, and when considering that those reasons have to face the courts of appeal and the Supreme Court. The separation of careers in itself means nothing, or does not mean more than it means the separation of golf clubs. An organic law that would bring the concept of the separation between the prosecutor and judges should rule that courts may only practice golf, tennis and PM only defense lawyers just riding, doing undermines the possibility that the three process actors can come together in a dressing room.
regard to the fact that those who pursues today tomorrow can judge, and vice versa, we have already made it clear that this is the rule in common law systems, to which the Ferrara is so attached. Strange that one who has dubbed it the "elephant" has a memory so short.
But this is not the point: the point is that in the Anglo-Saxon system is that a jury decide the fact, and that does not justify its decision. 'S why the decision (acquittal or conviction ) is not subject to appeal, because the decision on the fact being unreasonable is not subject to appeal.
In Italy the decision is that the law, must be substantiated. And on the basis of motivation (or lack of motivation), the court decides whether to appeal the magistrate who pronounced sentence has correctly assessed the evidence and whether or not the legal characterization of facts. We note, incidentally, most of which in Italy is a magistrate sitting alone, and this subject much more than a jury of twelve civilians to consider, in the cases really in doubt, only part of the evidence, or erroneously assessed the weight.
In the French system, until 2000, decisions of the Court of Assizes (structured like the Italian one, so popular with the judges who decide on fact and law) was no appeal, either by the prosecution to the defense. Poi è stata introdotta la possibilità dell'appello anche lì. In ogni caso, quel che deve essere ben chiaro è che non si vede da nessuna parte un sistema in cui l'appello sia consentito solo alla difesa e non all'accusa 
Giuliano Ferrara today writes a long piece in the newspaper of the brother of the Prime Minister, explaining the reasons why we should do justice reform proposed by the Government chaired by the brother of the owner of the newspaper that hosts the piece.
Ferrara is not the first idiot hacks, and in fact, his article is very suggestive: to dismantle it is necessary to analyze the steps salient point by point.
the investigating magistrate must be equated with the defender, while judges who must stand above the parties. This is the "separation of careers." Without it, there is no true justice, there is a grotesque caricature of justice. If the lawyer is a beggar's rights barely tolerated while the prosecutor who investigates and promotes the charge is a colleague who will issue a decision, working with him, does the same career, leans to the same office, has the court for a daily attendance and a community of corporate and professional interests, justice is denied in the root. If you can judge people who are now pursuing tomorrow, and vice versa, the denial adds insultAs mentioned in previous days, the problem of the common career is very different from the problem of equating the case of the prosecution and defense. In most of the smaller Italian courts there is a commonality of interests, acquaintances and leisure much higher among judges and lawyers than there is between the judicial and PM. This is because the judging is often there for a long time, if there is even born, he attended the circles of high society, goes to the golf, tennis and so on, while the PM in the small towns is often early in his career, and expects to going to make the leap to a larger center. The fact of being part of the same company is much stronger in the control of the same Ministry or of having a career decided by the CSM: This I am sure that Ferrara did not ignore it, but do not mention.
The embankment to the potential conflict of interest or customization of the link between one of the parties to the proceedings and the court lies in the professionalism of the judge, he has the obligation to justify its measures, and when considering that those reasons have to face the courts of appeal and the Supreme Court. The separation of careers in itself means nothing, or does not mean more than it means the separation of golf clubs. An organic law that would bring the concept of the separation between the prosecutor and judges should rule that courts may only practice golf, tennis and PM only defense lawyers just riding, doing undermines the possibility that the three process actors can come together in a dressing room.
regard to the fact that those who pursues today tomorrow can judge, and vice versa, we have already made it clear that this is the rule in common law systems, to which the Ferrara is so attached. Strange that one who has dubbed it the "elephant" has a memory so short.
The second element is the responsibility to the citizens in the exercise of the profession of judge. If an official of any wrong, and perhaps intentionally or otherwise overwhelming the rights of the citizen, that officer reasonably pay the consequences of error, is civilly liable for his behavior. Without this rule, the officer of the Registry can take a sleepy and distracted when he farts apply for a certificate of coffee per hour. And the irresponsibility of the judiciary has more serious consequences of a mockery or a delay in issuing an ID card: it weighs on people's lives, their honor, on affects, health, freedom of us allThe Ferrara equates a purely executive role, such as the issuing of identity card with one that requires intelligence and skill and that is inherently subject to error. The official registry sleepy should not make decisions based on data almost always insufficient. No one has photographed Franzoni who killed her son, but the court's task is to establish, even in the absence of a test objective, if she has or has not done. The magistrate is of course subject to error, because it could exercise if it were not convicted and confessed only those caught in the act, which, I believe, no one would want. The current legislation regarding the liability of the judge ( a summary here) provides that a magistrate be liable for willful misconduct or gross negligence, like the doctor and architect (Alfano and yet continue to support the reform he proposed to equate the magistrate to the doctor!). Are now excluded from the activities of professional liability interpretation of provisions of law or the assessment of facts and evidence, and this for the simple reason that such activities are inevitably fallible and subject to appeal for that very reason. Imagine being in the role of the judge to decide murder of poor Scazzi, and that whatever decision or the father or daughter could then come to your decision to account for the mere fact of being wrong, but not for negligence in good faith and using your skills to the full. Do you believe that in this situation you would be able to decide? And, well, follow me, if indeed the judiciary is entrenched in self-defense infamous caste of each component, if indeed each judge has the sole interest to defend their colleagues, do you really believe that the Court of Appeals overturn a decision of the Court, knowing that this would ruin the judge who pronounced the sentence? No: If the judiciary is indeed composed only of the infamous, successive sets of proceedings would become mere jokes.
The third simple truth is that you can not be tried a second time after being acquitted. Why? It's easy to say. The common law provides that people can be convicted only if they are considered guilty "beyond a reasonable doubt" (the lawyer Perry Mason in the old TV series had this warranty to find the real culprit and exonerate the innocent). The exclusion of every possible shade of opinion is an objective anchor, a decisive guarantee for civil liberties. For us the principle is that you can give award on the "free conviction of the judge," a purely subjective criterion. But that freedom must be anchored to the objectivity of the court to a certainty as the basis for a review in due process. And it is obvious that an acquittal leaves and will always leave a reasonable doubt in the air, even if the court of appeal came a conviction. So: no double jeopardy once the accused will be acquitted because there is no absolute certainty caseHere Ferrara, who earlier had forgotten to remember how things work in America, once the omelette. This time you forget that in Italy the art. 533 Code of Criminal Procedure provides that the sentence is pronounced if the offense is proven "beyond a reasonable doubt" and not on the basis of free conviction of the judge.
But this is not the point: the point is that in the Anglo-Saxon system is that a jury decide the fact, and that does not justify its decision. 'S why the decision (acquittal or conviction ) is not subject to appeal, because the decision on the fact being unreasonable is not subject to appeal.
In Italy the decision is that the law, must be substantiated. And on the basis of motivation (or lack of motivation), the court decides whether to appeal the magistrate who pronounced sentence has correctly assessed the evidence and whether or not the legal characterization of facts. We note, incidentally, most of which in Italy is a magistrate sitting alone, and this subject much more than a jury of twelve civilians to consider, in the cases really in doubt, only part of the evidence, or erroneously assessed the weight.
In the French system, until 2000, decisions of the Court of Assizes (structured like the Italian one, so popular with the judges who decide on fact and law) was no appeal, either by the prosecution to the defense. Poi è stata introdotta la possibilità dell'appello anche lì. In ogni caso, quel che deve essere ben chiaro è che non si vede da nessuna parte un sistema in cui l'appello sia consentito solo alla difesa e non all'accusa
Saturday, March 12, 2011
Do U Get Cervical Mucus Before Your Period
Some reflections on reform of the justice / 2
Passiamo ora a parlare dei due punti di maggiore rilevanza della proposta di riforma: l'attenuazione del principio di obbligatorietà dell'azione penale e la responsabilità civile dei magistrati. Ci sarebbe da scriverci sopra un paio di tesi di laurea, ma non avendo qualche mese a disposizione mi limiterò a formulare qualche pensiero più disordinato del consueto.
Sulla responsabilità civile, la questione, per quanto mi riguarda, è abbastanza semplice: today is expected to respond to the judge for willful misconduct or gross negligence. The proposal of the Government to equate the judges employed by the State, which also respond to simple negligence. This in my opinion, an unacceptable pressure on those who are called to judge, because the jury is a difficult job, and those who exercise it should be put in a position to do so with all the serenity of the case. Judges are still human beings, subject to glare, distraction and fatigue: so much so that the judicial system, worldwide, provides that there are several levels of courts, in order to repair the errors in the imposition of a sentence. Already
art. 2236 cc limits the liability intellectual work of the civil service provider (doctor, lawyer, architect ...) ruling that "If the provision requires the solution of technical problems of special difficulty, the person undertaking the work is not liable for damages, if not in cases of intent or gross negligence ", and rightly so because, otherwise, no doctor would think to try a new therapy. In the U.S., where this principle of limitation of liability does not exist, the protection of the trader goes through the insurance mechanism, which has led to a rise in costs for access to health care for all, as viewers of U.S. series, well know.
What would a judge who may be sued in an action for damages whenever someone who condemns? We are confident that freedom could make the award? I frankly do not think so: just a doubt (that is a far more nuanced question of "reasonable doubt" is currently provided by art. 533 cpp) to discharge the accused, to avoid trouble. And if you marry this with the well planned without appeal of acquittals, what would come out is a system where everyone (but especially those who, having more resources, could face a peaceful heart, the cost of subsequent reviews compensatory damages) could get away with much more easily than today.
Mind you, I am a firm believer in the principle that is better that a hundred guilty be out that one innocent in jail, but here we are going to intrude legalized impunity, and impunity for more class.
We come now to the issue of mandatory prosecution. The proposed text says that "The prosecutor has the obligation to prosecute under the criteria established by law" . It would appear that not less vengsa the basic principle, but it is not: this reminds me very closely fornmulazione art. 28 of the Statuto Albertino (which, lest we forget, was in force in twenty years) that provided: "The press is free, but a law shall repress abuses" , and we all know as it turned out.
We note therefore that the proposed wording, then, would end the constitutional obligation to prosecute, calling the law the ordinary rules of this exercise and try to understand what that means.
not everywhere already know that the prosecution is required: in Anglo-Saxon legal systems in fact it never is, and yet in many continental legal systems (especially those in French) is discretionary.
In Italy the principle of mandatory prosecution has always existed, as the procedure code of 1930, which gave the PM the power to file the notice of the offense without being considered by the Examining Magistrate, l'avesse di fatto incrinato. La cosa non sfuggì nel corso del dibattito alla Costituente, all'inizio del quale la figura del Pubblico Ministero era ben lungi dall'essere ben definita.
In effetti vi erano sul tappeto due temi, strettamente connessi anche se tale legame non è di immediata evidenza: quello se il PM dovesse essere espressione del Potere Esecutivo piuttosto che del Potere Giudiziario, e quello dell'obbligatorietà dell'azione penale.
Il concetto di base è questo: un PM espressione dell'Esecutivo potrebbe essere sottoposto a pressioni, o addirittura a vere e proprie disposizioni formali da parte del superiore gerarchico, per non fargli esercitare l'azione penale in determinati casi In tale configurazione pertanto l'obbligatorietà prosecution should be in the interests of the individual and PM, both in general the principle of equality of everyone before the law. A PM independent and instead would not be subject to those pressures or orders, and then in that case it would be possible to leave more discretion to the office. Eventually the Framers chose the way stiffer, making the PM was independent of the courts, and at the same time stating the mandatory prosecution. One reason for this radical decision was to prevent the introduction into a subsidiary of prosecution by the court were to find that the inactivity of the PM in front of the news of crime, since it appeared unacceptable for our legal culture, the possibility that a crime was not prosecuted but not as trifling as committed by "friends of friends." In other words, it is felt that unless the express provision of mandatory self-PM also could help someone, maybe not because of pressure but of personal interest, and therefore we wanted to lock up the office.
The reform proposal is that it is accepted that certain crimes, that will be defined by ordinary law, are "less crime" than others. We are told that this is the fact that justice does not work today, because you know how to prioritize the prosecution of illegal, because you can not think that for any crap from starting criminal proceedings, with all what it costs in terms of time, resources and money.
E 'largely true, but, alas, is not the point.
recently the deputy mayor of Treviso, Gentilini, was the subject of the launch of two Roman artichokes that have touched the face . The authors of the horrendous act have been identified and reported, and certainly we are all safer. Will result from a criminal proceeding (as the PM has an obligation to pursue the action) that will end with a stalemate, or at most a fine of a few tens or hundreds of euros. According to the Government to do this shit for a criminal trial is not right: you have the means of justice to be used to prosecute the real crimes: and we agree.
But the solution to the problem, and I think anyone with common sense they should agree not to let certain crimes in a gray area of \u200b\u200bjurisdiction attenuated, but to reduce the scope of criminal law by restricting its field Action offenses really offensive. It makes no sense to let the jet dangerous things or misuse of theatrical representation remain crimes, but at the same time say that judges need to look for lack of time. First, because it is wrong in principle (the crimes should essere cose serie e gravi, e quindi dovrebbero essere puniti senza badare al tempo disponibile), e in secondo luogo perché così si introdurrebbe una discriminazione tra chi commette un reato in un luogo con un tribunale scarico di lavoro, che verrebbe perseguito in quanto il PM locale non ha nulla da fare, e chi commettesse lo stesso reato in un luogo con un tribunale ingolfato, che la farebbe franca.
Gli strumenti per ridurre il carico di lavoro dei tribunali e dei PM ci sono: la depenalizzazione, anzitutto, come pure -ad esempio- l'estensione del procedimento per decreto alle fattispecie più lievi di reato, anche se punibili con pene detentive minime.
Il fatto è che la discrezionalità dell'azione penale vale nei sistemi in cui il PM la sfrutta non per sgravarsi da una parte del lavoro, bensì per perseguire più efficacemente i reati, modulare la pena in funzione della pericolosità del reo o, come nei sistemi anglosassoni, trattare con l'imputato per far ammettere la sua colpevolezza o concedergli l'immunità per fargli fare nomi. Ma nei sistemi anglosassoni l'accusatore dispone non solo dell'esercizio dell'azione, ma anche della quantificazione della pena.
Insomma: rendere discrezionale l'esercizio dell'azione penale, o sottoporre il suo esercizio a condizioni dipendenti dalla situazione degli uffici giudiziari, è profondamente iniquo nmel sistema che oggi abbiamo: e il fatto che all'estero funzioni non significa nula, dato che per scardinare this should import from abroad all the other institutions that give meaning to the discretion of the PM. 
Passiamo ora a parlare dei due punti di maggiore rilevanza della proposta di riforma: l'attenuazione del principio di obbligatorietà dell'azione penale e la responsabilità civile dei magistrati. Ci sarebbe da scriverci sopra un paio di tesi di laurea, ma non avendo qualche mese a disposizione mi limiterò a formulare qualche pensiero più disordinato del consueto.
Sulla responsabilità civile, la questione, per quanto mi riguarda, è abbastanza semplice: today is expected to respond to the judge for willful misconduct or gross negligence. The proposal of the Government to equate the judges employed by the State, which also respond to simple negligence. This in my opinion, an unacceptable pressure on those who are called to judge, because the jury is a difficult job, and those who exercise it should be put in a position to do so with all the serenity of the case. Judges are still human beings, subject to glare, distraction and fatigue: so much so that the judicial system, worldwide, provides that there are several levels of courts, in order to repair the errors in the imposition of a sentence. Already
art. 2236 cc limits the liability intellectual work of the civil service provider (doctor, lawyer, architect ...) ruling that "If the provision requires the solution of technical problems of special difficulty, the person undertaking the work is not liable for damages, if not in cases of intent or gross negligence ", and rightly so because, otherwise, no doctor would think to try a new therapy. In the U.S., where this principle of limitation of liability does not exist, the protection of the trader goes through the insurance mechanism, which has led to a rise in costs for access to health care for all, as viewers of U.S. series, well know.
What would a judge who may be sued in an action for damages whenever someone who condemns? We are confident that freedom could make the award? I frankly do not think so: just a doubt (that is a far more nuanced question of "reasonable doubt" is currently provided by art. 533 cpp) to discharge the accused, to avoid trouble. And if you marry this with the well planned without appeal of acquittals, what would come out is a system where everyone (but especially those who, having more resources, could face a peaceful heart, the cost of subsequent reviews compensatory damages) could get away with much more easily than today.
Mind you, I am a firm believer in the principle that is better that a hundred guilty be out that one innocent in jail, but here we are going to intrude legalized impunity, and impunity for more class.
We come now to the issue of mandatory prosecution. The proposed text says that "The prosecutor has the obligation to prosecute under the criteria established by law" . It would appear that not less vengsa the basic principle, but it is not: this reminds me very closely fornmulazione art. 28 of the Statuto Albertino (which, lest we forget, was in force in twenty years) that provided: "The press is free, but a law shall repress abuses" , and we all know as it turned out.
We note therefore that the proposed wording, then, would end the constitutional obligation to prosecute, calling the law the ordinary rules of this exercise and try to understand what that means.
not everywhere already know that the prosecution is required: in Anglo-Saxon legal systems in fact it never is, and yet in many continental legal systems (especially those in French) is discretionary.
In Italy the principle of mandatory prosecution has always existed, as the procedure code of 1930, which gave the PM the power to file the notice of the offense without being considered by the Examining Magistrate, l'avesse di fatto incrinato. La cosa non sfuggì nel corso del dibattito alla Costituente, all'inizio del quale la figura del Pubblico Ministero era ben lungi dall'essere ben definita.
In effetti vi erano sul tappeto due temi, strettamente connessi anche se tale legame non è di immediata evidenza: quello se il PM dovesse essere espressione del Potere Esecutivo piuttosto che del Potere Giudiziario, e quello dell'obbligatorietà dell'azione penale.
Il concetto di base è questo: un PM espressione dell'Esecutivo potrebbe essere sottoposto a pressioni, o addirittura a vere e proprie disposizioni formali da parte del superiore gerarchico, per non fargli esercitare l'azione penale in determinati casi In tale configurazione pertanto l'obbligatorietà prosecution should be in the interests of the individual and PM, both in general the principle of equality of everyone before the law. A PM independent and instead would not be subject to those pressures or orders, and then in that case it would be possible to leave more discretion to the office. Eventually the Framers chose the way stiffer, making the PM was independent of the courts, and at the same time stating the mandatory prosecution. One reason for this radical decision was to prevent the introduction into a subsidiary of prosecution by the court were to find that the inactivity of the PM in front of the news of crime, since it appeared unacceptable for our legal culture, the possibility that a crime was not prosecuted but not as trifling as committed by "friends of friends." In other words, it is felt that unless the express provision of mandatory self-PM also could help someone, maybe not because of pressure but of personal interest, and therefore we wanted to lock up the office.
The reform proposal is that it is accepted that certain crimes, that will be defined by ordinary law, are "less crime" than others. We are told that this is the fact that justice does not work today, because you know how to prioritize the prosecution of illegal, because you can not think that for any crap from starting criminal proceedings, with all what it costs in terms of time, resources and money.
E 'largely true, but, alas, is not the point.
recently the deputy mayor of Treviso, Gentilini, was the subject of the launch of two Roman artichokes that have touched the face . The authors of the horrendous act have been identified and reported, and certainly we are all safer. Will result from a criminal proceeding (as the PM has an obligation to pursue the action) that will end with a stalemate, or at most a fine of a few tens or hundreds of euros. According to the Government to do this shit for a criminal trial is not right: you have the means of justice to be used to prosecute the real crimes: and we agree.
But the solution to the problem, and I think anyone with common sense they should agree not to let certain crimes in a gray area of \u200b\u200bjurisdiction attenuated, but to reduce the scope of criminal law by restricting its field Action offenses really offensive. It makes no sense to let the jet dangerous things or misuse of theatrical representation remain crimes, but at the same time say that judges need to look for lack of time. First, because it is wrong in principle (the crimes should essere cose serie e gravi, e quindi dovrebbero essere puniti senza badare al tempo disponibile), e in secondo luogo perché così si introdurrebbe una discriminazione tra chi commette un reato in un luogo con un tribunale scarico di lavoro, che verrebbe perseguito in quanto il PM locale non ha nulla da fare, e chi commettesse lo stesso reato in un luogo con un tribunale ingolfato, che la farebbe franca.
Gli strumenti per ridurre il carico di lavoro dei tribunali e dei PM ci sono: la depenalizzazione, anzitutto, come pure -ad esempio- l'estensione del procedimento per decreto alle fattispecie più lievi di reato, anche se punibili con pene detentive minime.
Il fatto è che la discrezionalità dell'azione penale vale nei sistemi in cui il PM la sfrutta non per sgravarsi da una parte del lavoro, bensì per perseguire più efficacemente i reati, modulare la pena in funzione della pericolosità del reo o, come nei sistemi anglosassoni, trattare con l'imputato per far ammettere la sua colpevolezza o concedergli l'immunità per fargli fare nomi. Ma nei sistemi anglosassoni l'accusatore dispone non solo dell'esercizio dell'azione, ma anche della quantificazione della pena.
Insomma: rendere discrezionale l'esercizio dell'azione penale, o sottoporre il suo esercizio a condizioni dipendenti dalla situazione degli uffici giudiziari, è profondamente iniquo nmel sistema che oggi abbiamo: e il fatto che all'estero funzioni non significa nula, dato che per scardinare this should import from abroad all the other institutions that give meaning to the discretion of the PM.
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