Two weights, two measures: the problem of Italian justice with the proportionality of the sentence

26 March 20213 years ago babelfish

Faced with the recent dramatic developments in the judicial case that for years has been the protagonist of the former "king of the paparazzi" Fabrizio Corona – a subject never involved in serious crimes against the person, but only in crimes against property and the like, and in fact sentenced to suffer penalties greater than those suffered for example by many convicted of murder – on the one hand, one can only humanly hope that the interested party will be allowed to achieve a balance between the need to serve sentences and that of personal health , and on the other hand, obviously without prejudice to the respect for the decisions of those who exercise judicial functions, some reflections spontaneously arise on a more general situation, which unfortunately involves many other people, even if less known, in what is often, in the opinion of the writer, one of the major defects of the concrete way of functioning of Italian criminal justice: the unequal treatment in similar cases and the lack of proportion lity of treatment in different cases, in particular the sometimes serious disproportion, both by default and by excess, of the penalties applied with respect to the crimes committed.

The examples are there for all to see. And if sometimes our state is accused of being too lenient with criminals (people convicted of murder or other crimes of violence released after short periods of imprisonment), and others of excessive rigor (people arrested for fines relating to irregularities almost only formalities, for example, to urban planning, environmental, occupational hygiene regulations, etc.), combining the two things many have the impression of a criminal justice that, despite the thousands of regulations that are often enormously detailed, or perhaps precisely because of these (which do not they almost never allow the identification of a univocal line of conduct), is implemented in a way that is too discretionary if not almost arbitrary.

However, this is a superficial impression, given that if it is true that the problem of the disproportion in excess and / or inadequacy of the criminal treatment of the guilty to the crimes committed exists, it does not depend on the arbitrariness of the operators (prosecutors and judges). ), but from something much deeper. That refined observer of social reality who was Alexis de Tocqueville (1805 – 1859), in his analysis of American democracy affirmed that to understand the concrete functioning of the political and legal institutions of a country one must rely on its "customs" (on its “Mores” , in the Latin sense of the term), that is, on the values and principles relating both to the structure of society and to human relations, which are predominant in this country. The observations of the great liberal thinker are also fully suited to Italian justice.

In fact, except in cases that pertain to the pathology, the often excessive disproportion between punishment and crime typical of our criminal justice is not a matter of arbitrariness of individuals (who limit themselves to applying the rules, obviously as they are used to apply them), but rather of mentality, a reality as mentioned much deeper, and therefore more difficult to understand and also (unfortunately, in the opinion of the writer) more difficult to modify. It is a mentality, a "custom" that is expressed both in the way of issuing the laws and in the way of applying them, which affects both the content of the general rules and that of particular sentences, and which ends up creating a sort of " vicious circle ”involving both political legislators and judicial operators, prosecutors, judges and defenders. A custom that leads to value for the purposes of the application of criminal law above all, or rather in a decidedly exaggerated way, an aspect (fundamental but not unique) of the social reality affected by the commission of a crime: the personal and social situation of the offender ( and upstream that of the accused or the suspect), neglecting the equally important one represented by the objective gravity of the crime committed, and this with opposite results, sometimes favorable, sometimes as in the Corona case, contrary to the guilty himself.

Let's try to explain, perhaps simplifying a little: I hope that the purists of criminal law will want to forgive me. All crimes, both serious crimes and fines as we say "bagatellari" always involve two "parties", on the one hand the guilty or presumed guilty party, on the other the victim (natural person, private company or public body ). One of the fundamental functions of the modern state since its inception has been that, in the face of the commission of a crime, to replace, through the exercise of criminal action, its punitive activity to the reaction of the victim and his family members who in the medieval times it was expressed through the duel ("ordalia") between the champions of the two sides, while the public power only played a role of referee in this duel (the feudal lord attended the challenge ensuring its "fair" development). When, at the beginning of the modern era, the public power of the nascent state gradually but definitively assumed the exclusive task of exercising criminal prosecution, it set its action on the basis of certain principles, certain "customs" , based in a decisive way on the particular religious vision of society and human relations that was affirming itself in each country, and which would be consolidated with the often conflictual clear separation between the different confessions. These customs of religious origin, capable of shaping both the formulation and the application of laws in the criminal and non-criminal field, have assumed such an important role as to last over the centuries, surviving in many respects to the present day, in societies that are secularized. (if not at times almost de-Christianized) in content, including juridical ones, they are surprisingly very similar to those of the early modern age in many ways of considering human relationships.

The discourse is broader and (in the opinion of the writer of course) involves a large part of social, political and economic institutions, but to limit ourselves to criminal justice, we can note that when the Italian public power (in the various pre-unification states) assumed on himself the task of exercising criminal justice, he did so according to the principles of the Catholic morality of the Counter-Reformation, dominated above all by Jesuit conceptions. According to the latter, just as the church, while consoling and helping the victim of a sinful act, had to deal above all with the sinner so that he would convert, the task of the state in punishing crimes had to be essentially that of causing repentance and repentance of the offender. , so that in concretely establishing the penalty, the situation of the offender himself became important above all, that is, his social, family, economic conditions, as well as his attitude in the trial, for which, for example, a prompt confession lightened the penalty in a decisive way. In this way the gravity in itself of the crime committed and with it the position of the victim was overshadowed. A repentant criminal even if the perpetrator of serious crimes, was judged in a lighter way than someone who, even if the author of less serious crimes, perhaps affirming, rightly or wrongly, his innocence did not collaborate with the investigators recognizing his own misdeeds.

The same mentality has surprisingly spanned the centuries, as well as the events that have happened and the ideas that have developed in the course of them, and has come down to us: it will be remembered that in the tragic season of terrorism of the 70s and 80s , some members of subversive organizations, material authors of numerous murders but repentant, also thanks to the “emergency” legislation, served much lesser sentences than accomplices never directly involved in bloody events. Moreover, our own Constitution (art. 27) rightly contains some sacrosanct principles for the protection of the offender (humanity of the sentence, re-educational purpose of the same), but does not speak of the proportionality between the sentence and the crime committed.

A brief comparison can be useful to better understand, by contrast, the thing. In the United States, whose "mores" are instead linked to the Calvinist religious culture, based for its part on a rigid separation between the "elect" and the "damned" established by divine predestination of which human action (ecclesial or state) can only take note, the criminal public power focuses above all on the proportion between guilt and penalty, and this proportion in an almost mechanical perspective of "exchange" (the sanction understood as a "price" to be paid for the guilt) becomes decisive, so that the guilty (or presumed) can reduce or avoid the penalty, for example, only if by "bargaining" he offers something in return to the state (for example if he contributes to averting other crimes) and his personal attitude in itself is of little importance. Concept of "exchange" of the relationship between guilt and sanction which, on the one hand, can lead to aberrant results such as the application of the death penalty still in force in many American states, on the other hand it allows for less disproportionate and therefore more "fair evaluations. "From an objective point of view with regard to the crimes committed and better guarantees the right of the alleged perpetrator to decide how to behave in the face of criminal justice without inducing him, perhaps out of opportunism, to repent or to assert alleged conditions of social or individual hardship that are very important today for this purpose.

If the reader agrees with what has been said so far, they will also agree that a mentality so deeply rooted in Italian "mores" is not easy to change. However, its negative consequences can be mitigated: certainly, said with all due respect, it is wrong from a moral and civil point of view that (except in absolutely exceptional cases) the culprit for example of a theft, extortion or fraud , for whatever reason he is in fact punished more severely than the perpetrator of a murder. As always, virtue lies somewhere in between: just as in the United States, with the passage of time, certain institutions have developed aimed at taking into account the behavior and personal situation of the perpetrator (some later also imported into our country, such as the conditional suspension of the sentence, the Italian version of the American "parole") capable of attenuating the rigid concept of "exchange" between punishment and guilt, in the same way it would be advisable for us to be provided vice versa with regulatory "stakes", ie limits to the variability of the effective penal sanction more rigid than the existing ones, linked to the seriousness of the offense and suitable to prevent the excessive importance given to the personal behavior and social situation of the offender from leading to applications of the sentence in practice highly disproportionate to the fact committed , which end up being unfair either towards the victim (if too slight) or towards the perpetrator himself (if excessive).

The post Two weights, two measures: the problem of Italian justice with the proportionality of the sentence appeared first on Atlantico Quotidiano .

This is a machine translation from Italian language of a post published on Atlantico Quotidiano at the URL http://www.atlanticoquotidiano.it/quotidiano/due-pesi-due-misure-il-problema-della-giustizia-italiana-con-la-proporzionalita-della-pena/ on Fri, 26 Mar 2021 04:58:00 +0000.