Yes or No: between expectations and risks for the balance of the judicial system

In the debate on judicial reform, part of public opinion (and the legal profession) has sided with the "Yes" to the upcoming referendum on justice. As far as criminal lawyers are concerned, this is a position consistent with a historical battle, primarily pursued for the separation of careers between judges and public prosecutors. However, beyond the consistency with this long-term line, a crucial question arises: how many are fully aware of the possible consequences of the reform, not only on the legal profession but on the entire system of citizen guarantees?

A first point: the (apparently) central theme, represented by the separation of careers between judges and public prosecutors. If the declared objective is to strengthen equality between prosecution and defense before a third judge, in my opinion, this principle is already - in practice - adequately guaranteed in its natural setting, namely within the trial, through balanced rules that have nothing to do with the placement of judges and public prosecutors within the legal system.

The reform intervenes without affecting the rules of criminal procedure, without speeding up its timelines, without changing anything that concerns citizens, and this raises doubts about its real purpose. Let’s look at the effects in the medium and long term: the separation of careers could have a significant impact on the associative and political level. It is difficult to imagine the survival of a unitary association of the Judiciary, like the current one, in the presence of a clear distinction between judges and prosecutors.

The birth of a new autonomous category of public prosecutors would make plausible the formation of its own union, representing specific interests that could potentially diverge from those of judges. The future association of prosecutors could promote specific claims regarding the different interests represented, eventually requesting a distinct economic treatment compared to that provided for judges. The role performed by prosecutors has peculiar characteristics, such as working hours, office presence, holiday and leave regime, which would be further emphasized if the common membership with the judging magistracy were to cease. Furthermore, the autonomous organization of prosecutors could strengthen their ability to influence public opinion, with an increased possibility of generating tensions towards judges, through press conferences by the Prosecutor's Offices or associative initiatives aimed at contesting decisions deemed unfavorable to the prosecution.

Conflicting dynamics may emerge, fueled by positions expressed by the media or pressure campaigns on judicial decisions considered unfavorable for the prosecution. Such tensions could affect the relationships between the two self-governing bodies introduced by the reform, generating possible interpretative or institutional divergences and mutual delegitimization among the different components of the judiciary. Ultimately, what is currently seen as a pathology of the system would become common practice, and the cure would be worse than the disease.

Now, let's address the main argument of the “No” front: the risk of weakening the independence of the judiciary. Concerns focus on two key elements of the reform: the split of the CSM into two distinct self-governing bodies and the creation of a High Court with disciplinary powers over judges and public prosecutors; additionally flavored by the introduction of lottery for the composition of the CSM and High Court. These are bizarre innovations that present a clear heterogeneity. And here’s why.

The logic of the draw already seems absolutely inconceivable with an organ of constitutional significance like the Csm, not coincidentally presided over by the Head of State. It is inconceivable that its members would be pre-selected according to the logic of lottery balls, to be identified as, according to Herodotus, the Persians named their sovereign: "Once the decision was made to entrust power to one alone, it was decided that at sunrise, mounted on horseback, the one whose horse neighed first would have the kingship: thus, thanks to a trick, Darius becomes king (The Histories, III, 84-87)."

Let’s reflect on this: no one has ever proposed to draw lots for the members of the Government or the administrators of large public enterprises; in the private sector, the principle of competence is non-negotiable. To give a paradoxical (but not too much) example, even in the meetings of the Cupola or the Santa, it does not appear that anyone ever dreamed of suggesting that Cosa Nostra or the ’Ndrangheta should rely on Tarot cards to select the Boss of Bosses. Probably, the imprudent advisor would have been dissolved in acid on the spot.

But that’s not enough, because we are faced with a partial draw, a masked lottery. As is known, the Csm is composed of judges (so-called togati members) and professors or lawyers (so-called lay members). The future two Csm will also have a mixed composition, as will the High Court. The problem is that, according to the amendment, the draw of the togati will be pure and simple (one equals one, no matter the cost), while the draw of the lay members will only be apparent, as the drawables will be pre-filtered, like chemical compounds in a distillation apparatus, by a selection (of competent individuals, of course) made by the parliamentary majority. This scenario raises questions about the possible exposure of the judiciary to political influences, because the two Csm and the High Court will be composed of togati “advisors by chance”, like participants in a Sunday outing; lawyers and professors will instead be (pre)selected based on alignment and loyalty logics.

Ultimately, the judiciary reform raises complex and profound questions. While it is legitimate for the Bar Association to advocate for a transformation consistent with its historical battles, it is equally necessary to question the systemic consequences of such choices. The central point remains: will the reform truly contribute to strengthening the guarantees for citizens, or does it risk altering delicate balances without offering concrete solutions to the issues of the criminal process? Furthermore, how many lawyers who are currently advocating for the “Yes” truly envision the possible scenarios described, and how many genuinely aspire to exercise their function in a context and with interlocutors similar to those outlined here?

Prosecutor of the Republic
at the Court of Ragusa