There is a thin, almost imperceptible, line between the sinister political opportunism declined as an ideal of justice and the capillary need to have an instrumental impact on the daily administration of that same justice even in the absence of a real reform criterion, or at least abstractly realistic, alternative and rational.

And then there is an equally subtle and imperceptible thread between the need to have a "just" justice, based on the reasons for decision-making efficiency, and the need to exercise functional control over the social "perception" of a "System" probably existing only on the level of "management" of business in the very delicate context inherent in the reasons for the division of the three powers of the State, namely the legislative, the executive, and the judiciary which, probably, should guarantee respect for legality by killing of any potential democratic distortion (therefore also that coming from the ranks of politics) due to abuse of power and / or corruption phenomena of various consistencies.

If, therefore, this were the "speculative" circuit on which the moods of the country's ruling class are stirred, how would the popular decision on those six referendum questions on justice wanted by the Radical Party and supported by the League of the already dismissed Captain, so extemporaneous and generic in their formulation and to which the Supreme Court wanted to grant its "approval", can help to draw the line between what would be useful to ensure the affirmation of the constitutional guarantees of due process and what it would be necessary to achieve on the plan of the implementation of pure and simple judicial organization?

I wonder if anyone has noticed the actual content of those six referendum questions that everything seems to want to promise, but will probably change nothing. In short, that referendum, and I would really be wrong, could be (the conditional is a must) yet another instrument of political "conditioning" for the use and consumption of those who already exercise power undisturbed and would just like to be able to direct it at will on the stock up on your own "desired".

First of all, because, beyond the proclamation of principle that continues to want to represent the public prosecutor as a helpful subordinate, someone may not understand, and rightly so, how the separation of careers between those who exercise investigative functions and those who exercise judicial functions can contribute to the realization of that much acclaimed "due process" above all, when, through that "separation", in the narrow and limiting terms in which it is presented in the enigmatic referendum question, one is ruinously limited to transforming that same prosecutor from a body called to ensure the impartiality of the investigations in order to be the first guarantor of the rights of the accused, as it is today, as the prosecution organ in the strict sense according to an American model that has nothing to do with our constitutional structure and that precisely for this reason it will be destined to fail the test of legitimacy.

So why, although that of the civil liability of magistrates is a recurring theme in consideration of the interest on which one would like to affect (i.e. the protection of property rights in a broad sense), however, beyond the media impact of the project that would like the magistrate directly involved in the proceedings concerning his own "responsibility" like any other citizen, it would be useful to ask oneself, even if one wishes to grant everything, how useful it is in terms of pure and simple economic convenience to make the guarantee of refreshment fall directly on the same economic in the pathological hypothesis of recognized civil liability. Translated into a nutshell: who could ensure that the assets of the magistrate on duty are large enough to satisfy the reasons of those who have been damaged by the careless exercise of judicial functions? Wouldn't it be more correct to continue to take advantage of the guarantee offered by the State which, after all, does not have capacity problems? I don't know: I'm asking for a friend.

Finally, because the attempt to rewrite article 274 of the Code of Criminal Procedure following the possible referendum abrogation of the Decree of the President of the Republic 22 September 1988 n. 447, in the generalist terms in which it is proposed to the popular a-technical judgment, is strongly compromising the balances on which the entire system of the precautionary system is based since, even to want to consider everything, and as emphasized by illustrious jurists and scholars of the subject , the paradox will be reached of limiting the application of precautionary measures only to organized crime and / or subversion crimes with any serious compromise of the legitimate rights of the multiple persons offended by the crime who, as always, will continue, on the one hand, to to enjoy, or not to enjoy, it would be better to say, a very limited procedural protection without guarantees and on the other hand, to act as mere approximate extras of a separate procedure. Again I ask, and always for a friend: what would be the practical utility of excluding the so-called “risk of probative pollution” and / or the so-called “serious risk of escape from the suspect” from the scope of the conditions for applying precautionary measures?

If the first imperative is to "prevent" the commission and / or the repetition of crimes, what sense can a referendum question have that vigorously points to the mitigation of that need for justice and protection which is felt today in a way so urgent is the need? It goes without saying that intellectual honesty seems to have gone to bless itself by dispersing itself into the too large mesh of approximate and self-referential reasoning conducted on objectives that, far from wanting to achieve the common interest, seem rather oriented towards building a "System" within the "System" that can continue to guarantee the survival of a "Caste" that is "other", at least in appearance, compared to the one already existing and operating on which the scandal that has inexorably compromised both the relationship between Politics (executive power) and the Judiciary has ruined (judicial power), both that between the Judiciary and the People, and the further, and more controversial, between Political Representation and Popular Mandate.

And it is precisely on the rubble of this system that those six referendum questions appear to be briefly declined in an incomprehensible form for those who, not experts, have in any case found the courage to support them with their own subscription, probably driven by the wave of an engaging but very little in accordance with reality.

"Omnia Munda Mundis" (or "Everything is Pure for the Pure") exclaimed Fra 'Cristoforo. Today someone could express the concept in much more mischievous forms: but who would benefit after all? I believe that beyond the indifference exploited by a political narrative that has arbitrarily decided, and in the absence of any own examination of conscience, to focus all responsibility on the work of the Judiciary by relying on its broad shoulders, another has been lost. an important opportunity to ensure the correct and sound administration of justice.

Giuseppina Di Salvatore

(Lawyer - Nuoro)

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