Referendum, Montalto: «The delegitimization of the judiciary will overwhelm the credibility of the entire system»

Our space continues towards the Referendum. A voice to both sides on the constitutional reform of justice. A way to inform and educate, to arrive prepared for the vote on March 22 and 23. 

"This reform has the flavor of a brutal retaliation against the judiciary by a government majority that demands full powers and is constantly overwhelmed by judicial scandals in Sicily," said lawyer Pierpaolo Montalto (also secretary of Sinistra Italiana) regarding the upcoming referendum on justice. 

Lawyer, why vote no on this reform?
You should vote No to defend the democratic guarantees enshrined in our Constitution and to protect the autonomy and independence of the judiciary, which was established in our Constitution to safeguard all citizens.

What worries you the most?
As a lawyer, what worries me the most is that a potential victory for the Yes vote would accentuate the accusatory profiles of the trial and encourage and strengthen this government's goal of radically transforming our criminal justice system. A demolition of the mitigating interventions to the accusatory model adopted in our country with the reform of the criminal trial, suggested by the best and most protective legal doctrine in Italy, which unfortunately seems to have only just begun with this terrible reform. The greatest risk for us defenders, but especially for the people we assist, in the event that the government succeeds in carrying out its counter-reform, would indeed be to find ourselves facing a radically transformed role of public prosecutors. Now we are dealing with magistrates who, to ensure fair trials, must have a systemic view of the criminal proceedings, the only guarantee to concretely implement the obligation to seek the real truth that now binds the public prosecution, and who cannot consider the possible acquittal of the defendant as a procedural defeat. In the near future, we might instead find ourselves facing trials against true prosecutors, trained in procedural practice solely to accuse and to exclusively triumph the accusatory perspective, but with the powerful tools of the State. A huge danger because any defendant who is not rich and powerful risks succumbing in a trial that turns into an unequal challenge between structurally opposing parties, but with starting forces that are enormously disproportionate. I firmly believe that if the separation between the prosecuting and judging functions is accentuated, the effect can only be what I have just represented. Furthermore, as a citizen, I am extremely concerned about the unprecedented attack on the independence and autonomy of the judiciary. These are principles enshrined in our Constitution to defend the guarantees, rights, and freedoms of all, certainly not to protect only the magistrates and give more power to judges.

Will the separation not guarantee impartiality?
Let me turn the question around: how can one think that judges have not been impartial so far? Personally, I find this aspect of the narrative from the supporters of the Yes quite disconcerting. I radically reject the idea that in the trials where I have fought to defend rights and ensure a proper acquittal or a just sentence, the judges of different levels of judgment, regardless of the final outcome of the proceedings, have been influenced by their relationships with the public prosecutor or with colleagues from previous levels. This view of justice is distorted by a propaganda that I find unacceptable and, above all, it does not respect the reality I experience every day in court. The problems of justice are quite different, and if trials were truly influenced by the sharing of the same career between investigators and judges, by the relationships between judges and public prosecutors, I would stop believing in my work. Finally, we must be careful because if doubts are cast on the fairness of the criminal process, then these doubts can be extended to all actors in the justice system. As far as I am concerned, I believe I have achieved significant professional successes, without ever relying on personal connections with any judge or public prosecutor, just like all my female and male colleagues. If the atmosphere is poisoned with false narratives, the delegitimization of the judiciary will undermine the credibility and authority of the entire system and erase any trust the public has in our profession as lawyers.

What are the risks?
The risks are those I have already represented and argued: a less fair trial because that accusatory profile, which already makes many foreign legal systems much less protective than our criminal system, would be greatly accentuated, and a judiciary bent to the interests of politics and the blocks of economic power that support it.

Does this reform not taste like an unappealable condemnation of the judiciary for its sins of complacency and power?
This reform tastes like a brutal retaliation against the Judiciary by a government majority that demands full powers and that is constantly overwhelmed by judicial scandals in Sicily. If many political figures had truly paid for their mistakes, for corruption and collusion with organized crime, today the quality of our democracy would be much higher. The problems of justice, however, are certainly not represented by judges. The real problems of Justice are the too low number of Magistrates and other categories of workers who operate in the Courts, the workload that weighs on the Judicial Offices overwhelmed by deadlines but lacking adequate staff, the absence of new and more modern judicial venues, overcrowded prisons, and the blind political will not to make courageous but extremely necessary choices, such as the decriminalization of unnecessary offenses. Finally, I believe that if we want to prevent future forms of degeneration like those in the Palamara case, fortunately isolated cases, the first thing to do is to break any ties between the Judiciary and political interests.
This counter-reform, however, seems to be heading in a diametrically opposite direction.

How do we stop the drift of factionalism?
The drift of factionalism can only be contained by truly and concretely protecting the entire social, political, and legal system of our country from corruption and private interests and returning to the original value and importance of the legitimate and democratic different currents of thought within the judiciary. The freedom of judges to associate based on a shared legal vision, cultural orientation, or the desire to reform and improve the system is a principle of constitutional civilization that guarantees a more democratic and, therefore, fairer Justice.
History, beyond very well-known cases but certainly fewer than the virtuous examples always characterized by a polluted relationship with politics, has taught us this: the rest is mere and instrumental propaganda.

And as a lawyer, how is the right to a fair trial guaranteed?
By loving this profession and the defense of procedural rights and constitutional guarantees, never holding back - even when we lawyers do not enjoy the privilege of significant fees - studying a lot and working even harder every day in the Courthouses, always earning respect as defenders who guarantee a right enshrined in the Constitution, while also respecting the State and the people, always defending the interests of our clients and our work, but always believing in Justice. In summary, by being good lawyers and honoring the robe we wear.

A referendum campaign where there have been many rhetorical slips from both sides.

The rhetorical slips began with the threats and insults from too many government representatives towards the representatives of a constitutionally autonomous and independent power of the State. We have witnessed unacceptable interference, campaigns of delegitimization, and constant violations of the utmost principle of the separation of powers. The history of Magistrates like Falcone and Borsellino should have imposed greater respect for the Judges of this country from the representatives of this government and the majority that supports it. If many citizens see their rights recognized, it is also thanks to Judges who do their job well, and certain insults to the entire category have been and continue to be of shocking gravity. However, I defend not the Judges but many people who, for various reasons, become involved in a criminal proceeding in my work. I vote and support the No primarily to protect their rights. Finally, let me make a very important appeal: if the government truly wants to do something useful for Justice, it should stabilize all the precarious workers who work in the Clerks' Offices and the Offices for the Process, ensuring the proper functioning of justice in the real life of the courts.