Justice Reform. For over thirty years, the debate on Italian justice has revolved around an unresolved issue: the separation of careers between prosecutors and judges. This is a technical issue, often perceived as distant from citizens, but which in reality concerns the heart of the criminal process and the principle of due process. Today, with the referendum approaching and constitutional reform under discussion, the issue is back in the public spotlight.
To understand what would really change and why this step is defined as “the completion” of the transition to the adversarial system, we interviewed lawyer Eros Baldini, a criminal lawyer with thirty years of experience in Italian courts, former President of the Criminal Chamber of Lucca and current head of the Department of Justice and Constitutional Affairs of Forza Italia for Tuscany.
With him, we try to distinguish between facts and principles, clarify false myths, and bring back to the forefront an issue that requires knowledge rather than partisanship.
– Attorney Baldini, we hear about it all the time, but what exactly is the separation of careers?
“It is simply the completion of the transition from the inquisitorial system to the adversarial system, which began in 1989 with the Vassali Code and continued with the amendment of Article 111 of the Constitution in 1999. Only now, with the separation of careers between prosecuting magistrates (public prosecutors) and adjudicating magistrates (judges) , has the circle been closed. Or rather, it would be better to speak of a triangle, because that is the shape that best represents a fair trial geometrically: equality between the prosecution and the defense, which form the base, before a third judge who stands at the apex. With equidistance and impartiality.”
– But in practice, what is it for?
“To restore equality between the prosecution and the defense and strengthen the impartiality of the judge, eliminating the pathological relationship of collegiality between the judge and the public prosecutor that distorts the system.”
– However, the data tells us that the transition from public prosecutor to judge or vice versa is practically non-existent.
“That’s true, but that is the separation of functions, with limited possibilities for transition from one to the other, recently regulated in an even more restrictive manner by the Cartabia Reform and now almost non-existent. Another thing is the separation of careers, which provides for a clear difference with separate competitions, separate careers, and two sections of the Superior Council of Magistrates. This ensures that the differentiation is clear and evident in both form and substance. We no longer want to see situations of closeness between two expressions of the judiciary, which must maintain the same distance between them as there must be between the judge and the prosecution and between the judge and the defense.”
– However, the protagonists of the trial appear divided: on the one hand, the magistrates, who are opposed to the reform, and on the other, the criminal lawyers, who are in favor of it.
“It is natural that it is essential for lawyers to be able to protect the rights of their clients on an equal footing with the prosecution and before a judge who is truly impartial. On this point, the Academy and various liberal associations, which have set up special committees for the YES vote, also agree.”
– And how can we explain the position of the National Magistrates Association, which is strongly opposed to the separation?
“It is an equally natural reaction, but in the opposite direction, to a reform which, through the new criterion of recruiting members of the CSM by tempered lottery, undermines the power of the internal currents within the ANM and effectively defuses control over the appointments and career progression of magistrates themselves, which until now has been managed by the association itself. The aim is to replace the logic of factional affiliation and bring merit back to the center of the paradigm. All citizens want and have the right to have the best people at the top of the judiciary.”
– But what about the accusation that you want to make the Public Prosecutor subordinate to the executive?
“It is false and decidedly misleading. To refute it, one need only read the new Article 104, which does not differ from the previous one in affirming the absolute independence of the judiciary. This is the most worrying thing: that in order to try to convince citizens to vote NO in the referendum, false arguments are being used and non-existent dangers are being evoked. The first task we must accomplish is to provide accurate information, avoiding, as some are doing, attempts to politicize an issue that is purely technical. Politics should remain out of the picture, and everyone, and I mean everyone, should welcome a reform that, on closer inspection, is 35 years overdue.
– Thank you for your time.
“No, thank you for giving me this opportunity, and I remain available for any further clarification.”
