Justice Referendum: the Severino Law keeps democratic institutions in check (by P. Becchi and G. Palma)
We propose below the complete version of an article signed by Paolo Becchi and Giuseppe Palma, already published on May 27 on Nicola Porro's website: https://www.nicolaporro.it/referendum-giustizia-i-quesiti-spiegati- in-5-minutes /
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The televisions hardly mention it, but on Sunday 12 June the Italians are called to vote for an abrogative referendum on justice . Five questions are admitted by the Constitutional Court: system of election of the CSM; fair evaluation of magistrates in district judicial councils; separation of careers; limits to abuses of pre-trial detention; repeal of the Severino Law . We are for the Yes to all five questions and we wrote it, most recently, in our booklet " Justice Referendum: all the reasons to vote Yes ", published in these days, but today we would like to deal with one question in particular, that on the repeal of the Severino Law , the subject of various points of view and evaluations, which also push those who are in favor of the other referendums to have doubts about this.
What is the Severino Law
On the spur of a rampant anti-politics before the 2013 general elections, the Monti government adopted, as delegated by the Parliament, the Legislative Decree no. 235/2012 (“Consolidated text of the provisions on the subject of incandiability and the prohibition to hold elective and government offices”). The decree provides for the reliance on the Chamber and the Senate, as well as the European Parliament, of all subjects sentenced, with a final judgment (i.e. which has become final), to a sentence of more than two years of imprisonment for non-culpable crimes (therefore committed with willful misconduct ascertained in court), with automatic disqualification from public office (therefore also from holding government posts) for a period of six years, including exclusion from Parliament – if the sentence becomes final after the election – upon decision of the Chamber to which the offender belongs. The Constitutional Court – with sentence no. 35/2021 – has also established that the suspension from the office of parliamentarian (on which the chamber to which he belongs must decide), of member of the Government, of regional president, regional councilor and mayor is in accordance with the Constitution, even when the sentence is not it is final but only in the case of particularly serious crimes. Even suspending the mayor, without even the sentence becoming res judicata but only after the issuing of the first degree sentence, gives the sign of justicialism in our country.
Different positions
Those who support the reasons for the No or the abstention from the referendum argue their position by arguing that the Severino Law prevents corrupt, extorted and mafia members from accessing elected offices or public offices. In order to prevent the condemned from accessing public office, the law provides, as mentioned above, the automatic ban from public offices for a period of six years, without any evaluation by the judge, as is the case in all the others. cases. Before the Severino Law anyone, even those sentenced to sentences of more than two years of imprisonment, could run for Parliament, but this happened: when the sentence became final, if the sentence to be served was actually that of imprisonment, the chamber to which they belong would decide. , authorizing or not the execution of the same penalty. A mechanism that protected the results of popular sovereignty. There was no automaticity in the disqualification from public office, unless this was pronounced in a sentence that became final. And in any case, in the last resort, the room to which he belongs was always decided (self-deciding power of the rooms). Today, after Severino , if the parliamentarian has been sentenced with a final sentence to a sentence of more than two years (even if the same does not provide for effective imprisonment but the possibility of presenting a request for custody on probation), the expulsion from Parliament upon decision of the chamber to which he / she belongs and automatic ban from public office for six years, without the possibility of being re-nominated before this period.
Results of the Severino Law
The salient fact is that the 2012 law served, in the ten years from its entry into force (2012-2022), to subject parliamentarians, mayors, regional presidents, regional and municipal councilors to spurious investigations with the aim of preventing the continuation of political activity. Think of Silvio Berlusconi, at the time leader of the opposition, expelled from the Senate in autumn 2013, or the trial for kidnapping against Matteo Salvini who aims to have him convicted and to prevent him from doing, for example, again the Minister of the Interior. A similar path also touches Matteo Renzi as he is under investigation for the case of the Open Foundation. But not only. There are many cases of mayors suspended after the first degree sentence, pending the other degrees of judgment, which, as a result of the Severino Law , have seen their political life destroyed before a final judgment. Think of the mayor of Reggio Calabria Giuseppe Falcomatà (Pd) or that of Catania Salvo Pogliese (FdI, ex FI). Madness, but it was the Constitutional Court itself that unfortunately endorsed the inversion of the presumption of innocence: the judges in fact suspended this principle only for politicians; bad business for democracy.
Whatever the referendum goes, a reform is needed
The current Minister of Justice, Marta Cartabia, after taking office in via Arenula has set up two commissions of experts with the task of drafting two reform reports – to be submitted to the Government and Parliament – both for the judiciary and for the criminal trial: the Luciani Commission and the Lattanzi Commission. Specifically, on 24 May 2021 the Commission chaired by the former President of the Constitutional Court Giorgio Lattanzi filed its own report with the aim of elaborating proposals for reform of the bill no. AC 2435. Among the many reform proposals contained in the report there is also that relating to "disqualification sanctions", with the aim of also changing the Severino Law . A minimal part of the content of that report has been included in the amendments to the bill no. AC 2435, which later resulted in the delegated law n. 134 of 27 September 2021 (the so-called "first Cartabia reform"), which however does not contain any delegation to the government to reform Severino . The referendum could then represent a push, whether a quorum is reached or not, to initiate a serious reform that essentially envisages two things: to raise the minimum threshold of the sentence beyond which expulsion is triggered (from 2 to at least 4 years) and to repeal the automaticity of the interdiction, leaving it to be pronounced by the judge only when expressly provided for as a penalty for the offense for which one proceeds (i.e. if the criminal offense includes, as a sanction, also the interdiction from public offices). The most important intervention, however, must concern the mayors, the councilors and the municipal and regional councilors who should no longer be suspended from office after the first degree sentence but only after the res judicata.
Why vote Yes to the repeal of the Severino Law
The referendum question aims to repeal the Consolidated Law on the subject of incandiability (the so-called Severino Law ), adopted on the basis of art. 1, paragraph 63 of the delegated law n. 190/2012. After the abrogation of parliamentary immunity in October 1993 (for which, since then, the prosecutors have been able to investigate parliamentarians without the authorization to proceed from the Chamber to which they belong), that of the Severino Law is the most powerful instrument that politics has delivered to the judiciary to get caught. Not surprisingly, just a year after its approval, the first excellent victim – as we said earlier – was none other than the one who had been Prime Minister for nine years and leader of the opposition for eight, Silvio Berlusconi, the enemy n. 1 of the so-called "left" and a faction of the judiciary. With these provisions on the subject of non-compliance, it is not an exaggeration, it is the judiciary that decides who can do politics and who cannot. Political enemies that cannot be defeated in the polls can be defeated by judicial means and now even with a law , which among other things introduces non-criminal administrative provisions, but with criminal effects and without the guarantees of the criminal laws. The Severino Law , in fact, provides for the expulsion from Parliament or the suspension from the office of mayor, councilor, councilor, etc., as an administrative measure, however producing criminal effects (the interdiction from public offices is a penalty provided for by the Code penal for certain crimes), without the victim being able to carry out the ritual means of appeal provided for by the code of criminal procedure, with all the defensive guarantees to protect the accused. If the Severino Law were repealed, the automatic mechanism of interdiction from public office would fall and the general discipline would be returned, that is, the application by the judicial authority of the penalty of interdiction, only if provided for by the crime for which one proceeds.
In conclusion, we can affirm that the Severino Law has proved to be too invasive, if not downright dangerous: the use that has been made of it amply confirms this. Voting yes does not mean wanting a parliament of corrupt but a free Parliament.
by Paolo Becchi and Giuseppe Palma
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P. Becchi – G. Palma, " Justice Referendum: all the reasons to vote Yes ", GpM edizioni (both in e-book and in paper version) 
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The article Referendum Justice: the Severino Law keeps democratic institutions in check (by P. Becchi and G. Palma) comes from ScenariEconomici.it .
This is a machine translation of a post published on Scenari Economici at the URL https://scenarieconomici.it/referendum-giustizia-la-legge-severino-tiene-sotto-scacco-le-istituzioni-democratiche-di-p-becchi-e-g-palma/ on Sun, 29 May 2022 11:13:26 +0000.