It is at least curious that the need for a crackdown on telephone interceptions is proclaimed by the minister of a government that only a few weeks earlier had approved a law to intercept even the organizers of rave parties. Yet that is what happened. The minister is that of justice, Carlo Nordio, and the announcement – which arrived during the hearings of Nordio himself in the senate and in the chamber on 6 and 7 December – is part of a broader reform of the penal system anticipated precisely in this occasion, and which has already attracted much criticism.
Nordio started from the causes which, in his opinion, prevent justice from functioning. “The presumption of innocence,” he said, “continues to be vulnerable in many ways.” Among these, “the adoption of pre-trial detention as an instrument of investigative pressure”, the distortion of the guarantee information “which has become an early media condemnation” and the criminal action “which has become arbitrary and almost capricious”.
In particular, the mandatory nature of criminal prosecution – i.e. the rule which requires the public prosecutor to start investigations when he comes into possession of a crime report and which is essential for guaranteeing the equality of citizens before the law – would even converted into an “intolerable arbitrariness”. The impossibility for prosecutors to manage thousands of files would in fact lead to having to choose the facts to investigate and this situation, the minister said, “gives the initiatives, and sometimes the ambitions, of some magistrates, fortunately few, a hegemony made more incisive by the absence of responsibility in case of bad management”.
Real problems
Among the failures of the system there would also be the “excessive and instrumental use of telephone interceptions”. “Their dissemination, sometimes selected and perhaps controlled”, according to the minister would constitute “a deadly instrument of personal and often political delegitimization”. “We will monitor very rigorously any dissemination that is arbitrary or improper,” Nordio warned, announcing “a profound revision” of the rules.
And a change could also come on the front of the separation of judiciary careers. Nordio has limited himself to a hint for the moment, saying that it makes no sense for judges and prosecutors to belong to the same order. But it was still enough. On the other hand, the right’s position on this point has been well known for years.
As mentioned, all of this would be part of an overall reform of the penal and procedural system. The aim is to harmonize the rules contained in the penal code, whose original structure dates back to the years of the fascist regime, with those of the code of procedure, which governs investigations and trials. The procedural code is in fact much more recent than the first, and is inspired by the principles of the so-called accusatory process in which the public prosecution and defense are placed on an equal footing before the judge, and more guarantees are provided for suspects and defendants than in the past .
The radical right seems intent on tackling social issues above all in terms of public order, providing solutions of a predominantly security nature
It must be said that Nordio is right on this point. And he is also right to raise some questions such as the fundamental one of the problems that have plagued the functioning of the obligation to prosecute for a long time. The trouble, however, is in the answers that the government is preparing to give. Despite the vagueness with which the minister hinted at the content of those reforms, there is in fact the feeling that once again we will end up running the risk of seeing the judiciary’s capacity for action limited. And there are those who fear that the independence of the public prosecutors could even be undermined.
Giuseppe Santalucia, president of the National Association of Magistrates (Anm), stated that “the constitutional architecture of the judiciary should not be touched”. “Compulsory prosecution and unity of careers,” he explained, “are the two pillars of this architecture” and discretionary prosecution would pave the way for political control over the judiciary, “as well as separate prosecutors from the jurisdiction becomes controllable”. Even for Armando Spataro, a long-time magistrate, the reform projects announced by Nordio, “if approved, would end up determining the subjection of the judiciary to the political power”.
More generally, the program announced by Nordio presents various convergences with Berlusconi’s vision of the penal system. In government, however, today there is the radical right led by Giorgia Meloni who expresses an even more disturbing idea of justice than that of Berlusconi’s right, and who seems intent on tackling social issues above all in terms of public order, providing predominantly security in nature. And it is no coincidence that Meloni herself, stating that she shares what Nordio said, defined herself as “a guarantor in the trial celebration phase and a justicialist in the execution phase of the sentence”.
Be that as it may, it will be years before we see how this reform, for the moment I am sketched out, will see the light, provided that he manages to see it. For a significant part, in fact, changes to the constitution will be needed, a circumstance that makes the path more difficult since it presupposes a broad political agreement that is difficult to imagine for the moment. On the other hand, Nordio himself had recently explained that for the moment the priority is to make the justice system efficient, since the slowness of the trials also entails a very high economic cost. This means that for now the National Recovery and Resilience Plan (Pnrr), the productivity of judicial offices, or issues such as the review of the crime of abuse of office remain central.
In short, if the substance is yet to come, the announcements of the government serve for the moment above all to produce political substance. The Third Pole, and in particular the Renzian area, has in fact already said it is willing to support the reform. And this enhances the distances between the oppositions, which Meloni will not mind, with a Democratic Party that appears more lost than ever and a decidedly opposed 5-star Movement.
But, above all, opening the question of justice allows you to restore weight to a right that in these first weeks in government has struggled to find noble themes with which to characterize itself, screwing itself into discussions of small cabotage such as the one on pos. And justice, moreover, is an argument that makes it possible to regroup that same majority that had arrived at the government divided on everything or almost everything. Given the context, this is probably already enough for Meloni. The rest will be seen. However, it remains to be seen whether Nordio thinks so too.