The Senate of the Republic approved the separation of the careers of magistrates With 106 votes in favor, 61 against and 11 abstentions. But what does it mean? Today the Italian Constitution provides that, to become a magistrate, it is necessary to support a single public competition for all functions: whoever exceeds it can choose whether to become a prosecutor (abbreviated as prosecutor, the reporting magistrate) or a judging magistrate (the trial judge) and possibly change your choice during the career.
The goal of this reform, in fact, is that of separate the careers of prosecutor and judge from the beginning, introducing two distinct competitions and establishing Two CSM (Upper advice of the judiciary) separated.
Being a constitutional reform, however, it must first be specified that there is not yet nothing definitive: now the law will have to be approved by both the Chamber and the Senate, and then be subjected to a confirmation referendum (which can only be avoided with a majority of 2/3 in both votes of Parliament).
How it works now: the difference between requient and judging magistrates
Today to become a magistrate it is necessary to support a public competitionwhich is accessed only with a law degree: as already mentioned, those who exceed this competition can choose whether to become public ministries (PM) or judging magistrates. But what is the difference Between the two careers?
The prosecutoralso defined as a reporting magistrate, has the task of investigating and pursuing the alleged guilty of a case, with the aim of protect the interests of the company and guarantee the correct application of the national law. In other words, its task is to start and support theaccusation against the accused, confronting his defense always in compliance with the principle of legality.
The public prosecutor therefore acts in the name of the state e represents the public interestopposing the defense lawyer: he carries out Preliminary investigationsformulates the charge (i.e. the act with which the accusation is formalized) and, if it deems it necessary, asks for the accused of the accused at the end of the trial. Precisely for the functions it performs, it cannot be considered impartial In the trial, given that his task is to find evidence against the accused.
The judge (judgmental magistrate), on the other hand, has the task of interpret Italian law In order to adopt decisions impartial And equally at the end of a process. By definition it must be super partesthat is, impartial in its judgments: must guarantee compliance with the rights of all the parties involved, assuming the position of a third stranger and guaranteeing theabsence of conflicts of interest in his final decision.
It must then be remembered that, in general, the judiciary is totally independent from politics: precisely to guarantee this separation of the 3 state powers (executive power, namely the government; legislative power, that is parliament; judicial power, that is, the judiciary) in Italy there is a Superior Council of the judiciary (CSM), or the self -government body of the judiciary, so as to guarantee its total independence.
What would change with the separation of careers
But therefore, in the event that the constitutional reform is approved, what would it change?
First of all, article 104 of the Italian Constitution would be modified, introducing the distinction between the magistrates of the judging career (judges) and those of the requient career (PM).
Secondly, two different CSMs would be established (while now there is only one): the first dedicated to the judiciary judge and composed of the judges and the second by the judiciary requiatingand therefore formed by the ministries. Both organs would be chaired by the President of the Republic.
But the reform also introduces other news:
- THE members of the two CSMs will no longer be elected directly by the magistrates or by Parliament: Today the CSM is made up of 33 members in total, of which 3 by law, 20 togates and 10 lay people. With the reform, secular members will be Extracts by a list of jurists drawn up by Parliament, while the members who were toga will be drawn among all the magistrates, judgments and reports. The members of the two CSMs will remain in office for four years and will not be able to participate in the next draw procedure.
- An ‘will be establishedHigh disciplinary court, who will deal with disciplinary sanctions against magistrates. Will be composed of 15 members: 3 appointed by the President of the Republic; 3 extracts that arose from a list of jurists completed by Parliament; 6 extracts that are arrested among the judging magistrates with 20 years of activity and with experiences in the Court of Cassation; 3 drawn among the representative magistrates with twenty years of activity and experience in the Court of Cassation. Also in this case, they will remain in office for 4 years, and the assignment is not renewable.
The opposing opinions on the separation of careers: against and favorable
It must be said that this theme has always been at the center of the Italian legal system: the possible separation of careers between prosecutors and judges was one of the discussions who were held between 1946 and 1947 among the members of theConstituent Assembly who took care of drawing up the Italian Constitution.
Jurists in favor of this reform argue that, separating the careers of the magistrates, the risk of conditioning: in the event that a judge decides to move from the PM function to that of judgmental magistrate, in fact, he could pronounce a judgment conditioned by his previous activity (in which he represented the accusation). In other words, the goal would be to guarantee even more impartiality in judgments.
This separation, then, would also allow avoid that the magistrates, who in the past had conducted investigations such as PM, find themselves in the future a judge the same subjects involved or in any case similar cases.
Who is opposite The reform, however, underlines first of all how the magistrates decide rarely To change his career: from 2019 to 2022, in fact, only 0.83% of public ministries have gone to judging functions, while only 0.21% of the judges became prosecutor. The fear of contrary jurists is that this reform can modify The relationship Between PM (now completely independent of politics) and executive powerpaving the way by greater political influence on the prosecutors.
Among other things, following the same logic To separate the careers of requient and judging magistrates, a separation between first instance and second instance judges should also be implemented, as well as that between judges of merit and judges of legitimacy.
