Referendum, Cannata: «Reform is a democratic turning point, the equality between prosecution and defense has remained only on paper»

Our space towards the Referendum continues. We give voice to the "experts" on the contents of the constitutional reform of justice. A way to inform and educate, to arrive prepared for the vote on March 22 and 23. 

"I was born as a lawyer with the 'new' procedure, the one that was supposed to guarantee equality between prosecution and defense. Unfortunately, that equality has often remained on paper. In my experience, even without overtly biased positions, I have often sensed the weight of a subtle conditioning," As a man of the left, he states: "We men and women of the left should always fight for the rights of all, especially the weakest, as it is precisely in the courts of justice that the level of civilization of a people is measured."

Lawyer, let's start with a simple question: why "Yes" to this reform?
I have been frequenting courtrooms for almost thirty years. I was born as a lawyer with the 'new' procedure, the one that was supposed to guarantee equality between prosecution and defense. Unfortunately, that equality has often remained on paper. In my experience, even without overtly biased positions, I have often sensed the weight of a subtle conditioning. The fact that judges and public prosecutors share the same career does not help dispel the suspicion of a shared "culture of jurisdiction" that penalizes the defense. I see in this reform a democratic turning point, but what primarily drives me to support the Yes is the idea that separating careers means making the Judging Magistrates truly strong and independent. Today, their impartiality is called into question by a single CSM that also decides on the careers of the same judges with a strong component of the Investigating Judiciary, not to mention that their association, the A.N.M., is composed of both Judges and Prosecutors.

For her, then, is "separation" synonymous with greater procedural guarantees?
Absolutely yes. It guarantees that a citizen is judged by a third-party arbitrator, not by someone who, until the day before, wore the "robe" of the one supporting the accusation. We must strengthen the guaranteeing culture of the Judging Magistrates: a conviction should come only when there is no reasonable doubt. Too often, instead, we read sentences based on ideological prejudices where doubt is almost never resolved in favor of the defendant. The principle of "in dubio pro reo" is a cornerstone of criminal law that would require the judge to acquit the defendant when the evidence of their guilt is lacking, insufficient, or contradictory. It would ensure that a conviction occurs only beyond a reasonable doubt. Yet too often we read sentences in which the free conviction of the Judge disregards this principle.
 
Was a double CSM and the lottery system really necessary?
It was the judiciary itself, with the degeneration of factions, that made it necessary. The factions have become tools to occupy positions of power in the Courts or Ministries, with Magistrates out of role. The distinctions between right, left, or center are now superstructures that have no meaning within the Judiciary, where one associates with one faction or another to secure positions, not to express their own political sensitivity. The lottery remains the only system to sever this link and make magistrates free. Magistrates are among the most qualified individuals within the bureaucratic system of the State; we are talking about highly trained professionals, winners of very tough competitions: anyone who is drawn will have the skills to perform the role to the best of their ability, which for me is already a guarantee that anyone drawn in the future to the CSM will know how to adequately fulfill that role. It seems paradoxical to me that only those Magistrates who decide to run for office, and in most cases are associated with the ANM, are considered more suitable, rather than those who are not associated, who find themselves being appointed based on a lottery. That is, only those who are members of the ANM are deemed more qualified.

Does the current system therefore present deep distortions?
More than distortions, I would speak of "discords." The criminal process is like an orchestra where everyone must play their own instrument following the score of the rules. Today it happens that someone tries to play another's score, breaking the harmony and balance that should always be guaranteed.

 Will the High Court be able to ensure impartiality in the disciplinary proceedings of magistrates?
The random selection among long-serving magistrates and the presence of lay members will reduce the influence of politics and factions within disciplinary proceedings. According to the reform, "politics" will have a limited physical presence in numbers, with 3 out of 15 members, compared to 9 from the Court of Cassation and 3 appointed by the President of the Republic, thus 3 out of 12. I hope, of course, that the High Court will have little work in the future, a sign of a judiciary attentive to citizens' rights, but I also hope that there will be less leniency regarding certain situations that weaken the authority that, for me, the judiciary must have. The issue of magistrates who are not punished or sanctioned despite judicial errors, investigations that lead nowhere, or reprehensible behavior is a debated topic in Italy. Data indicates a strong disproportion between the compensations paid by the State for wrongful detention and the disciplinary sanctions actually imposed on the responsible magistrates. Between 2018 and 2024, the Italian State has compensated over 220 million euros for judicial errors and wrongful detentions (about 5,000 cases), but in very few cases have the involved magistrates been sanctioned (only 9 sanctions in 2024 against thousands of cases). It is an imbalance that undermines the authority of the judiciary itself.

Is there not a risk of having prosecutors who are less "judges" and more inclined to convict at all costs?
This already happens on a daily basis. I have often seen prosecutors refuse to conduct investigations in favor of the accused despite requests from the defense. I could cite several cases where the prosecutor refused to conduct investigations in favor of the accused, despite being compelled to do so by the defense. I remember, for example, a client of mine who was detained in prison for 52 days, facing the serious charge of attempted sexual violence against a minor; the accusation was based on an identification made by a minor from a distance through a window of the police headquarters. Despite my request for a confrontation to see if the boy would confirm that identification, which we immediately deemed procedurally incorrect, the prosecutor refused to conduct this confrontation approved by the investigating judge. In the end, only thanks to our defensive investigative efforts were we able to convince the investigating judge to order the confrontation. In that instance, the boy did not recognize my client, and the investigating judge ordered his immediate release; but the matter did not end there, as the prosecutor still requested to bring him to trial. In the end, my client was acquitted and compensated for the wrongful detention he suffered.

How do you evaluate the tones of this referendum campaign?
I find myself sharing this battle with political subjects who are very distant from me, as I consider the current right-wing government to be among the worst political classes in our history; perhaps one would have to go back to Caligula and his horse to find equally low points in the selection of a ruling class that, in my opinion, is made up of populists and the ignorant. However, I believe that the left is making the mistake of not looking at the merits of the reform, ending up judging it solely based on who proposed it. On the contrary, this is a battle of civilization that aligns us with the rest of Europe and the Western world, and that is why I find it reductive and wrong to interpret the referendum only as a vote for or against the Meloni government. We men and women of the left should always fight for the rights of all, especially the weakest, as it is precisely in the courts of justice that the level of civilization of a people is measured. For this reason, I do not share the unwavering defense of the Prosecutors' Offices by the Left. Often, in fact, we witness the initiation of investigations based solely on theories and flimsy evidence, as demonstrated by the numbers on unjust detentions: figures that, among other things, do not even take into account those acquitted but not compensated, who are many more than those who receive compensation. A glaring example is the many trials against alleged human traffickers. I wonder where my leftist companions are when these very poor boys and girls are arrested, who perhaps are only steering the boat to pay for a journey they otherwise could not afford. Yet they are punished with very severe penalties, intensified by the Cutro Decree, without any distinction between criminals and the desperate. Even today, many remain in Italian prisons unjustly accused under Article 12 of the Consolidated Immigration Act, a law that punishes the facilitation of illegal immigration regardless of the profit motive. Just having taken on a minimal role, such as translating instructions or steering the course, risks a base sentence of two to six years, which can rise to sixteen years in the presence of aggravating factors such as the number of passengers or danger to their lives. With the Cutro Decree of March 2023, the penalties have become even harsher, reaching up to life imprisonment in the event of shipwreck or death. It is precisely on this decree that the judiciary has split: while Democratic Judiciary, which represents 15% of the members of the ANM, has supported a hard line against the norm, Independent Judiciary — which gathers 30% of the votes — has defined such criticism as a "serious mistake," deeming it inappropriate for the National Association of Magistrates to take political positions.
In conclusion, while the defense of the independence of the judiciary must be a battle for every citizen, the criticism must also be equally strong not only towards those who write repressive laws but also and above all towards those who apply those laws without ever questioning their constitutionality.