It is possible to implement forms of so-called "restorative" "justice" when politics, the abstract embodiment of a legislator too attentive to the electoral needs of parties and the translation of preventive requests of criminal policy into forms of banal criminal populism, forgets that it is itself subject to the principle of legality as it is aimed at favoring the full implementation of the individual rights traditionally understood both of the victims and of their executioners?

This was the doubt that crossed my thoughts when I learned of Marta Cartabia's visit to Sardinia on the occasion of the Conference on Restorative Justice: a "catwalk" as useless as subtly hypocritical if parameterized to the difficulties of expressing, in a clear way, the balanced reconciliation between the sanctioning needs specifically existing within the individual communities and the imposition of a globally understood reassessment of the sanctioning process itself. And if it is true, as it is true, that the penalty should never be reduced to the rank of mere afflictive revenge, however, it is equally true that it must be such as to prevent the offender from causing further damage to his community of reference. For this reason, in any case, it is certainly right that the penalty should always be parameterized to the social disvalue of the fact committed, and it is certainly right that that same penalty, even in its harshest concretization, must certainly be effectively expiated. if it really wants to propose, as its first objective, the full implementation of the re-educational purposes much praised but little or nothing realized, paradoxically, precisely because of the inability to actualize the principle of effectiveness of the sentence. To the point that, today, even just talking seriously about "regenerative justice", although theoretically correct "in hypothesis", appears to be a pious illusion destined to shatter, except in very rare cases, on the rocks of an unwilling reality to dispense one's "forgiveness" for the benefit of those who have brutally interrupted their peaceful daily life.

Let us be clear however: if the end appears useful, it is by no means certain that, at the same time, its actual implementation, where possible, corresponds to the actual need for "justice" of the victim who has always been the fragile element of the complex sanctioning process as it lacks, despite its own privileged procedural "position", forms of real protection that I doubt can take place within a para-procedural context tending to the active involvement of the victim himself, of the agent as a party strongly interested in " exit "as easily as possible from a rather cumbersome sanctioning path, and of the civil community itself engaged in the search for solutions to meet the set of needs arising from the crime and which, in most cases, is lacking (the community is meant ) of the tools of dialogue useful for the pursuit of an altogether uncertain result in the “an” and in the “when”.

In short: we are sure that in the context of our criminal law system it is possible, and / or even correct on the moral level, to stop considering the crime as a mere violation of a rule and the penalty as its legal consequence to access a mitigated version of the crime such as violation of persons and the correlative obligation to remedy the wrong suffered? Are we sure that from the point of view of the victims such an approach is not accepted as a further mortification of their own reasons aimed solely at benefiting, by making it less burdensome, the sanctioning process referable to the offender? Are we sure that such an approach does not contribute to instilling, in the minds of those led to commit a crime, the perverse belief that there are no relevant consequences in terms of sanctions? Are we sure that the so-called accountability of the offender is actually possible in such a way as to involve a sincere awareness of the consequences of one's actions?

Well, if I am allowed to express my personal perplexity, I would be inclined to believe that "it will be okay, but I don't believe it": the crime, although we want to purge the concept, is never a simple "experiential" case in the least damaging to the single, nor does it always and in any case lend itself to being repaired through agreed compositional forms. Perhaps the Keeper of Seals should have descended from the academic hyper-uranium to learn more about the mental mechanisms that govern the reasoning of those who appear to be "broken" in forms of massive and particularly offensive crime that do not lend themselves to restorative behaviors of any kind. All the more so when, in most cases, those same restorative behaviors are experienced, almost like "one way like another" to obtain a benefit in terms of punishment to be expiated. I do not exclude that there may be "virtuous realities", but as long as the social paradigm of reference remains anchored to a prison-centric vision on the level of the edictal attack, probably corrected in an expiative function although too often mortified at the implementation level, no real form of Regenerative justice will never be able to assert itself, also considering that not every consequence deriving from a crime lends itself to being "repaired".

Perhaps Minister Cartabia finds it hard to take note of the fact that a real reform of the sanctioning system cannot fail to pass through a concrete parliamentary confrontation which, up to now, and with good reason in consideration of the requests coming from civil society, has decided to express itself through an articulated cross-examination aimed at expanding the editorial frameworks, very rigorous in their maximum expression which, in turn, have struggled, and still struggle, to find implementation since the Judge, too often called to fulfill a role of "judicial substitute ”, And driven by a need for reconciliation, he risks poorly promoting the rules of judgment of the specific matter by drawing solicitation from his own discretionary spaces, thus nullifying the expected afflictive aspect.

Perhaps, for the purposes of the reform, it would have been more useful to intervene upstream rather than downstream but, where the judicial reality is not concretely known, as it seems in the Cartabia case, we cannot expect a realistic organic reform, useful in its effects. and satisfactory on the socio-existential level as it is put in place in a hurry only to respond to a European “diktat” which is lowered from the height of the institutional inconsistency and, for that very reason, in no way calibrated on the level of the civil structure.

The one on Justice is a serious matter, and whoever really knows the Law fears it. And he must fear it. This should have been the starting point in full compliance with the constitutionally guaranteed rights of both the victims and the perpetrators of the crime. Let us leave pious illusions to thinkers. The problem is that it seems to me that we are once again, and despite the "best" claims, with nothing.

Giuseppina Di Salvatore - Lawyer, Nuoro

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