We receive and publish the speech of the Attorney General of Cagliari, Luigi Patronaggio.

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I was educated to respect the Law, Socratically even when I did not agree with it, and I am by cultural formation led to doubt and to listen. Between Socrates and Antigone I have always rooted for Antigone but in my professional life I have always referred to obedience to the law of Socrates. The indisputable Catholic influence in my cultural formation makes me look at obedience as an indisputable virtue.

Having said this and without denying any of my professional and associative choices, carved, for better or for worse, in my public curriculum, I must confess that, with the spotlights turned off on the magistrates' strike, I remain very disturbed by the political, social and cultural isolation in which the judiciary finds itself.

Regardless of the propaganda and power of those who control the media and communication, it cannot be left serene that politics, with a broad front not exclusively identifiable in the parliamentary right, the Legal Profession and the Academy, all agree in maintaining that the criminal process, despite the provisions of art. 111 of the Constitution, still remains an unfair, unguaranteed and unbalanced process. The uniqueness of recruitment, career management and the ideological as well as physical commonality between judges and PMs, would be, according to that broad front, at the basis of this imbalance and, more seriously, would be a source of injustice for the citizen.

Now, even though I have many arguments to refute this approach, which have been widely discussed in the various public meetings called by the ANM, I cannot, with intellectual honesty, fail to recognize that the PM, as it is designed in the material constitution of this country, is unique in the international panorama. The reasons are essentially three: the total autonomy and independence of the PM from any other power, the total and absolute control of the judicial police and the possibility, strengthened by the mandatory nature of criminal prosecution, of being able to autonomously take cognizance of crimes and start any possible preliminary investigation. The Deciding Party, of any political color, would only need to paralyze one of these elements to drastically reduce the weight of the PM in the dynamics of the management of justice in the country. On closer inspection, therefore, the real issue is not the separation of careers (which in the opinion of the writer is now unavoidable) but the need, felt by multiple and heterogeneous factions, to reduce the weight of the PM and to prevent his investigative choices from creating an obstacle to politics and national administration, without such power being able to be scrutinized except within the trial when the damage, electoral or even just to the image, for those who manage public affairs is now caused regardless of the outcome of the trial itself.

Now the founding fathers had well perceived the problem, and while strongly supporting the obligation of criminal prosecution as a necessary corollary of the principle of equality and the figure of an autonomous and independent PM, they had foreseen a safeguard clause for politics represented by parliamentary immunity inscribed in the original formulation of art. 68 of the Constitution. The logic of parliamentary immunity, in this first formulation, was not to create a privileged political caste but to avoid interference by the investigating magistrates in the political choices of parliamentarians.

In the face of the wave of judicialism that followed the “clean hands” scandal (a phenomenon that a certain judicial revisionism tends to minimize today beyond the truth engraved in the sentences passed with the authority of res judicata), it was considered that the original institution of parliamentary immunity constituted an unjustified privilege of caste and with the Constitutional Law n. 3 of 1993 the entire art. 68 of the Constitution was rewritten, reducing the protective shield provided for the political class.

In reality, this is not the case: that system allowed the PM to investigate freely and autonomously everything and everyone (with the obvious exclusion of the most invasive investigative acts), thereby guaranteeing both the equality of citizens before the law and the mandatory nature of criminal action. The outcome of those investigations had, however, to be verified for further action by a Parliamentary Commission that would have had to assess whether there was substantial evidence behind that investigation and whether there was at the same time no intention to persecute the MP under investigation or his party. Unfortunately, the system was not without its critical issues, rightly criticized by public opinion at the time, given that authorization to proceed was often denied only for reasons of party solidarity without any techno-legal justification.

Now I think that the motto "one is worth one" is a utopian vision of reality and that in truth there is a difference in prosecuting an apple thief from a politician with government responsibilities and that therefore the principle of equality, as also expressed by the Constitutional Court, does not suffer any impairment if different situations are treated differently.

A return to the past, perhaps with some formal corrections and more correct application practice, I believe is preferable today to hasty reforms resulting from ideological conflicts and divergent interests.

I would see nothing scandalous in restoring the old parliamentary immunity abolished in 1993 if this could serve to alleviate the serious institutional conflict underway which constitutes a dangerous threat to the correct conduct of democratic life.

From another perspective, I observe that politics, including associative politics, has the task of reducing the complexities of a phenomenon to find a shared solution. Personally and realistically, I think that after the strike proclaimed by the National Association of Magistrates, we need to sit down at a table with politics, not ignoring the reasons of all the parties involved on the great issue of justice, to seek a solution that goes beyond the separation of careers that I believe is now an ineluctably marked path.

Anchoring oneself to the hope of a favorable outcome of a referendum on the reform of justice, as enshrined in the government bill and approved by the majority of Parliament, would be extremely risky because a confirmation of the reform by the electorate would lead to a delegitimization and a loss of confidence in the judiciary, difficult to fill in the medium and short term, with serious repercussions on the institutional balance of the country.

The judiciary must take charge of a “fair”, fast, efficient model of justice, which reduces to a minimum the risk of unjust arrests and convictions, as well as avoiding any form of spectacularization of the process. The associated judiciary, however, must be able to legitimately and authoritatively interact with the Deciding Judge on some aspects of the reform that appear objectively punitive for the judiciary as a whole, aiming at:

  • to a single competition for access to the judiciary, to a single professional training of magistrates and to a single self-governing body, divided into two sections, one for judging magistrates and one for public prosecutors, both chaired by the President of the Republic and this in order to safeguard the so-called culture of jurisdiction, an unavailable asset of the entire judiciary;
  • to a single High Court of Justice for all the magistracies (administrative, accounting, military and tax), with members who also come from the lower courts and not only from the legitimacy courts and with the possibility of appealing against its decisions to the Court of Cassation, the legitimacy judge of last instance of the Italian judicial system;
  • to the election of the members of the CSM drawn by lot from a single group previously selected by all the magistrates (so-called tempered draw).

Unfortunately, giving in on the separation of careers seems inevitable to me, but on some points of the reform it is not possible to retreat, under penalty of dissolving the regulatory principle of the separation of powers, a characteristic of every modern democratic system. Inevitable cornerstones of any reform project on justice cannot but be:

  • autonomy and independence of the PM clearly guaranteed in the Constitution;
  • mandatory nature of criminal prosecution, even if mitigated by indications coming from Parliament;
  • possibility for the PM to independently take cognizance of the crime reports;
  • functional and exclusive dependence of the judicial police on the PM

We therefore hope that these brief considerations may be of assistance at the next meeting between the President of the Council and the ANM Board, in the supreme interest of the citizens and their fundamental and ineluctable right to "fair" justice.

Luigi Patronaggio – Attorney General in Cagliari

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