The Reform of Justice known as the Cartabia Reform is the result of a compromise between political forces. And a personal success of Draghi who can present himself in Europe as the greatest innovator of the last half century. It is not a small success because no Parliament had ever dared to legislate in contrast with the dictates of the CSM, the currents of the ANM and the militant judicial elite.
However, the Reform does not address the real problems of our Justice, especially in economic matters (which was the European target): let’s try to understand why.
No one can be punished under a law that came into force after the crime committed. This constitutional principle does not apply to judges, who can suddenly innovate their jurisprudence. And apply it to all the previous situations for which the prescription has not intervened.
Judges can arrest a citizen for a fact that their own jurisprudence did not consider a crime during the period in which it was committed. In this consists the superiority of the magistrate with respect to the legislator, with the aggravating circumstance that the former responds only to himself.
Divinatory faculties were not needed to understand the fate that would befall our ruling class, as the awareness of impunity within the judiciary progressed. The first signs came in the mid-seventies. With the “innovation” according to which the administrator of a savings bank or of an economic entity in PS was equated to a public official. After a few years, the same Supreme Court would have canceled that line of jurisprudence.
The reform corrects a political use of justice
Meanwhile, hundreds of decent people suffered the shame of arrest and changed the course of their lives forever. But the path of political justice continued inexorably. The eggheads of sure democratic faith conceived, by jurisprudential way, new figures of crime.
It was possible to be mafia by competing from the outside, three testimonies of “repentant” murderers could constitute proof. The mayor of a municipality or the president of an institution such as IRI, could have committed the crime of abuse of office, without the need to prove some form of individual corruption. It was sufficient for a trusted expert of the Public Prosecutor to evaluate a public work on the basis of a cost lower than that of the contract.
The fixed idea of the magistrates of that historical trend was to hit the “white collar”. Under the “democratic” governments the crime of illegal party financing has been decriminalized. (A law disapplied for twenty years which served to behead the First Republic).
The story of the abuse of office
The abuse of office was debunked by a center-left government to the advantage of the then head of the government. The path of decriminalizing Italian-style false accounting began under the center-left government. Continued from that of Berlusconi and ended in 2015.
The most advanced creative jurisprudence was revived with the 231 of 2001. Which allowed seizures for equivalent based on the incredible “address” that equates a service company that has committed an abuse to a drug refinery.
During the first republic the political class was able to oppose the creative jurisprudence through laws of authentic interpretation with retroactive effect. With the advent of Berlusconi, the parties were no longer able to prevent jurisprudential abuses with ad hoc laws, considered ad personam by the parties and justicialist movements.
We cannot therefore consider the problem of “justice” solved just because a watered-down form of prescription has been reintroduced. We will have to wait for the most delicate ganglia of the system (first of all the prosecutors and the GIP) to be occupied by new recruits of magistrates. More and more technical judges, far from the ideological preparation that has largely guided them to this day.