I am following the tiring progress of the decree on the presumption of innocence in the Italian parliament, and the problem is that if I talk about it with some German friends I cannot explain why this is a victory. There are still two or three states in Europe that have an inquisitorial type trial, and of course among these there is Italy, even if "theoretically" it is said that it is not "completely" inquisitorial.
The common vulgate suggests that the Italian trial is moving in the direction of the more civil accusatory trial, and that therefore there are still minor residues to be eliminated in order to have a non-medieval trial. In reality this happens: the EU has made a law that obliges all countries to follow the presumption of innocence, or to administer justice starting from the hypothesis that whoever is accused is innocent as long as there is no logical possibility that it either, or proved guilty.
The problem is that this request is not met with shrugs of the type "look that it has already been like this for decades" but "it is not so, and we do not want it to be so because the inquisitorial process suits us" .
Here we need to take a step back. There are essentially two types of process: the inquisitorial process and the accusatory process.
- in the inquisitorial process the judge and the prosecutor (the accuser) coincide, or at least they are interchangeable. Consequently, the judge can form a "free conviction" and sentence even in the complete absence of evidence. Prejudice, that is, is an acceptable and used method. The sentence does not even require to be legal, that is to comply with the laws: in the event a higher level of judgment will annul it, but nothing will happen to the judge. The defense is purely aesthetic and aims to drop the aggravating factors and use the mitigating ones to the fullest. (if the judge decides to follow the law when writing the sentence, otherwise it is spoken about on appeal). The Habeas Corpus is continuously bypassed, adding charges to the accused.
- the accusatory trial. In this case the accusation and defense are equivalent, the debate takes place in front of the judge who is not in solidarity with either party, and the judge cannot condemn if he cannot rule out that the accused is innocent. If the sentence is illegal, the judge can be punished. The defense can investigate and collect evidence of which the prosecution is unaware, and then present it to trial. Then there is the Habeas Corpus, which is very difficult to get around. There are legal dictionaries where the legal meaning of EVERY word is defined, from "ship" to "laugh".
In the description of the accusatory trial, you will have recognized what is seen in Anglo-Saxon films, and this is due to the fact that the Anglo-Saxon countries have decided to use this model. Since people believe they live in the world of American films, and don't spend much time in the courts, Italians believe that the trial is accusatory in Italy as well.
No it is not'. Italians are so addicted to American films that they delude themselves about criminal justice. In Italy the trial is still largely inquisitorial in legal doctrine, and as if that weren't enough there is also a mentality of judges (who were trained under the Rocco Fascist code) that does the rest. Davigo, mind you, is one of the most civilized: the others are far worse than him.
A feature of the criminal trial, any criminal trial, is that the vast majority of cases end in doubt. It is not a binary system 0 AUT 1, where they caught you on live TV robbing an old woman holding the identity card hanging around her neck and releasing the invoice on letterhead and you put the selfie with the robbery on Facebook (in which case I would say that you are guilty), or at the time of the facts you were playing the final of the World Cup live and therefore you have a decent alibi (in which case it is assumed that the robber is not you). In most cases we work in the middle of these two values, that is in the gray area of doubt. The evidence is almost never complete, the defendant's defense appears reasonable, the motive is not so clear, etc.
In this case, for the trial to be REALLY accusatory, the godson of the presumption of innocence must enter the field, "in dubio pro reo". I mean, in all gray areas the accused should be acquitted. (means: in the vast majority of cases). The problem is that the definition of "doubt" indicates a mental process that takes place in the judge's mind. But in the inquisitorial process the judge also listens to slanders, and an opinion is formed during the investigation and not in the courtroom. Even if he does not carry out the investigations, he is a colleague of those who carry them out, and he is used to working in the same way as his colleague.
Consequently, having a good lawyer in Italy counts for very little compared to having a bad one: while in countries with an accusatory process the lawyer can literally dismantle the accusatory thesis and clarify, in countries with an inquisitorial process the lawyer is only a expert in the bureaucracy that took over the process, and an expert in mitigating circumstances. For this reason, of course, the Italian lawyer is paid much less than his foreign colleagues: his work is WORTH much less. It would make no sense to detach an expensive fee from a guy who does nothing but raise issues of goat wool and report irregularities in the procedure.
As a consequence, Italian lawyers are not pushed to become better in order to earn more, and the average of lawyers is really poor compared to foreign colleagues who have an accusatory trial. And this still facilitates certain judges. An American lawyer would have dismantled "Mani Pulite" in five minutes as a "blunt pile of nonsense", and without even sweating, and Di Pietro would have ended up dealing with abigeato for the shit figure: out of 2600 people who ruined Mani Pulire, only two thousand were sentenced in the first instance, of which 1700 had the trial canceled on appeal. In the world of prosecution, such an accuser ends up on TV selling kebabs for law students (whatever they are), and then gets ruined by compensation claims for abuse of remand.
Had it taken place in an accusatory country, Mani Pulite would have ended up in a general chorus of laughter, synonymous with antics.
The success of Mani Pulite, and other investigations that should not even have existed (such as the whole plant invention of the "P2 Lodge", which ended up in the ridicule of a parliamentary commission of inquiry) lies in the "free conviction of the judge", which allows you to see scenes like this:
Prosecutor: Judge, I can't prove he's the killer, but I can prove to you that he cooked the carbonara using onion. I have the photos: real stuff, handmade.
Defense: yes, but was it Thursday or Friday when you cooked like that? Friday, in fact, is penance.
Judge: this man is clearly guilty of genocide, heresy and zoophilia, the Elves of the Breadbox told me. I condemn him to the electric guillotine inside a gas chamber. The case is solved.
Appeal: This sentence appears to be written by a raccoon on acid. Therefore we cancel the sentence. But the raccoon in acid is a friend of mine and he sells me the acid, so we cancel the sentence but let's say that we canceled it because the real carbonara (cit Christ) is not of this world, but the first judges degree they can still have faith so that's okay it's okay that's okay, eeeeeeh. And then, in an inquisitorial system, what the fuck is the appeal for if not to sing Iron Maiden unplugged?
Cassation: we do not know exactly why we exist since the system is inquisitorial, so we take it for granted that we are here to shoot bullshit, drink rosolio and break my balls. The appeal sentence is not inspired by Julius Evola's Sacra Minchia, but somehow we have to end up in the newspapers for an absurd sentence, so we order the trial to be redone, but with a Deep Purple soundtrack.
The prosecution, that is, writes a novel that puts the accused in a bad light, adding unnecessary details such as "he was rude at condominium meetings", "he liked pizza with pineapple", then the mass media then relaunch the accusations (filtered in derogation of the law) forming the opinion of guilt, and even in the absence of evidence the judge forms the idea of having a guilty person in front of him. Because "everyone" says it, that is, the journalists. The rest of the degrees of judgment are simply nonsense.
And now we come to the point: the new European directive on justice does not ask for anything special. It would be much more devastating if he asked for the full application of principles such as "in dubio pro reo", (if in doubt he ruled in favor of the accused), or in making the Habeas Corpus more stringent, but the principle of innocence is really the minimum wage.
So why is it so difficult? It is difficult for two reasons:
- the press has been making a profit on the end of the principle of innocence since Mani Pulite. The trials are carried out in the street precisely because there is a principle of guilt in the street, the press knows it and enjoys it to increase sales. Imposing the "principle of innocence" means giving a hard blow to newspaper sales and TV ratings: in Anglo-Saxon countries you often see drawings of the accused in newspapers because it is not even allowed to take pictures during some trials.
- the parties profit a lot on the end of the principle of innocence, which started from the idea of transforming every accusation into a sentence: populist parties always accuse this and that of doing horrendous things, but if we look carefully at the number of times in which this translates into real complaints (despite a shit justice), we find few. Grillo has accused several companies of heavy crimes during his shows (he once said that a type of cancer was a pure invention to sell therapies, which would be a very bad crime) but he has never filed a complaint with any authority.
All this, however, has little to do even with the judiciary, since in the end a judge risks nothing because there are no bodies capable of punishing him when he violates the law: any law, for the judge, is irrelevant: they will find a way to circumvent it, as they already do with the principle of tertiary nature of the judge.
the ones who are really sorry, and are rowing against it, are the mass media and the populist parties, that is, the political arm of journalism .
There is a reason for this: when it comes to "what everyone says", in general the speaker cannot carry out precise surveys. When it comes to “the people”, in general the speaker doesn't really know what the average person thinks: they don't have the statistical tools.
When we say "the people", "the people", "everyone says it", etc., we mean the many names of the mass media.
Whoever says "the people" means what they see on TV and in the newspapers. Whoever says "people" means what you see on TV and in the newspapers. Whoever says "everyone says it" means that the mass media say it.
The party of the "ggente" and the party of the "people" are none other than the party of journalists. "Everyone says it" means "the journalists say it". Populist parties are the political arm of the mass media, and "populism" is simply another name for journalistic gossip.
A reform that goes in the sense of the presumption of innocence limits both the mass media and the parties inspired by the mass media, ie the political arm of the mass media.
The debate, therefore, is not between "guarantors" and "guilty", but between "journalists & sycophants of journalists" and "civilians".
Not for nothing, the reform focuses a lot on the fact that wiretapping and trial records end up in the hands of journalists before the sentence, forming a conviction of guilt BEFORE the sentence, and this is precisely the point of the reform text.
The problem of Italian justice, that is, is journalism.