Referendum Justice: the barbarism of the “jingle of handcuffs” (by P. Becchi and G. Palma)
Article signed by Paolo Becchi and Giuseppe Palma, already published on 28 May on Nicola Porro's website: https://www.nicolaporro.it/referendum-giustizia-perche-dire-basta-al-carcere-preventivo/
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June 12 is approaching and the debate on the referendum on justice is still struggling to get started. It is not talked about enough, indeed, it is not talked about at all! It will also be true that Italians have other concerns: work, bills and rent to pay, and in the background the fear of the effects of war and new pandemics. Still, this is the last train to try to change justice and it would be a shame to lose it.
We have dealt with this referendum with several of our articles and specials, most recently with a booklet entitled “ Referendum Justice: all the reasons to vote Yes ”, strongly supporting the need to vote Yes to all five referendum questions. In a previous post we analyzed the most controversial question, the one on the "Severino Law", today we want to focus on what concerns the " limits to abuses of pre-trial detention ". But first we want to take a couple of steps back …
The jingle of handcuffs
It was December 31, 1997 when the then President of the Republic, Oscar Luigi Scalfaro, denounced to unified networks in his end-of-year speech the reckless use of pre-trial detention in prison: " the clinking of handcuffs in the face of one who is questioned by some collaborators, this is an abject system, because it is offensive. Even the defendant of the worst charges has the right to respect ”. Scalfaro was referring to the Mani Pulite season, when it was customary, almost daily, to throw suspects in their cells to reveal what the investigators were looking for. Just to give an idea of the distorted use that has been made of the precautionary prison measure, about the season of Tangentopoli Francesco Saverio Borrelli had the opportunity to say: " But in the end, it is just so scandalous to ask whether the shock of imprisonment has not produced positive results in the search for truth? ". The scandal, in reality, are the inquisitive ideas that hide behind these words.
The torture of Enzo Tortora
The most sensational case, however, is more recent in time. June 1983, Enzo Tortora , the well-known television presenter accused by some collaborators of justice of trafficking drugs on behalf of the Nuova Camorra Organizzata (NCO) of Raffaele Cutolo, is arrested. The investigators in Naples trusted the revelations of a psychopath, such Giovanni Pandico (called 'o mad' ), who, reading the name of a certain Enzo Tortona (with the n) in the notebook of a friend of the Camorrista Giuseppe Puca was about Enzo Tortora, "the one with the parrot". The investigating judges considered such a reconstruction credible, endorsed by other repentants of the caliber of 'o animal (Pasquale Barra) and cha-cha-cha (Gianni Melluso). The fact is that Tortora, completely unrelated to the facts, will spend a total of 271 days in prison, only to be sentenced to 10 years of imprisonment in the first instance for criminal association of a Camorra type and drug trafficking. The acquittal with full formula arrives on appeal only in 1986, confirmed in the Supreme Court a year later. Pm, investigating judges and judges of the court of Naples, despite the serious errors committed, were all promoted.
What does the referendum question foresee?
The subject of the referendum is clear. It is a question of limiting the abuses of pre-trial detention. Let's see how it works. When there is at least one of the precautionary needs provided for by the code of criminal procedure (danger of escape, pollution of evidence or repetition of the crime), and only when the danger is concrete and current, the Prosecutor can ask the investigating judge to apply a precautionary measure against the person under investigation. The defense can do nothing other than to present (after the measure has been carried out) a request to the court for re-examination or to file with the same investigating judge requests for revocation or replacement of the measure (in the latter case only if there are new elements pursuant to 'art. 299 cpp). The referendum question intends to repeal art. 274, paragraph 1, letter c) of the code of criminal procedure (dprn 447/1988), limited to the part in which it allows the application of the precautionary measure for crimes for which the penalty of imprisonment of no less than four years and, for precautionary custody in prison, for crimes for which a prison sentence of no less than five years is envisaged, as well as for the crime of illegal party financing.
What happens if Yes wins?
In practice, in the event that citizens decide to abrogate the rule that is the subject of the referendum question, the precautionary measures would be applicable only in the cases established by the first sentence of letter c) of art. 274, paragraph I of the Code of Criminal Procedure, ie only for " serious crimes involving the use of weapons or other means of personal violence or directed against the constitutional order or crimes of organized crime ". The question therefore aims at decisively limiting the use of precautionary measures, first of all the precautionary custody in prison which would remain in force only for those particularly serious crimes that justify a significantly high attention from the State. It is therefore not true that murderers, robbers or rapists would no longer end up in jail: for these crimes, and for those of the mafia or subversion of the democratic order, pre-trial detention in prison would still be applicable . In all other cases, if the people voted for the repeal, they would end up in jail or in home detention only after the sentence has become res judicata, definitively canceling the barbarism of the anticipation of the sentence. The question also aims to repeal the recourse to precautionary measures in relation to the crime of illegal party financing, thirty years later than what happened in the 1992-93 season. The Amato government had already tried with the “Conso decree-law” in 1993 with which it decriminalized the crime of illegal party financing, but Scalfaro then refused to sign it under strong media pressure and the Milan prosecutor's office. Only a few years later did he realize the mistake he had made.
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In a civilized country, whoever makes a mistake pays, but only after a regular trial that leads – once all the levels of judgment required by law have been completed – to a definitive sentence.
by Paolo Becchi and Giuseppe Palma
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P. Becchi – G. Palma, " Justice Referendum: all the reasons to vote Yes ", GpM edizioni (available in both e-book and paper format) 
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The article Referendum Giustizia: the barbarism of the "tinkling of handcuffs" (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-barbarie-del-tintinnar-delle-manette-di-p-becchi-e-g-palma/ on Mon, 30 May 2022 05:34:45 +0000.