Thursday, May 2, 2024

Vogon Today

Selected News from the Galaxy

StartMag

Justice and CSM reform: ends, knots and tensions

3 years ago babelfish

Justice and CSM reform: ends, knots and tensions

Reform of the CSM and the judiciary, the proposals of the Luciani commission. Policy Brief by Ermes Antonucci ( Luiss School of Government )

The final report of the study commission on the reform of the judiciary and the Higher Council of the Judiciary, established in March 2021 by the Minister of Justice, Marta Cartabia, and chaired by Professor Massimo Luciani was made known.

The proposals formulated by the commission are part of the vast reform program of the judicial system carried out by the Draghi government, aimed at obtaining the resources provided for by the European Next Generation EU program. Two other study commissions, chaired by the former President of the Constitutional Court Giorgio Lattanzi and by Professor Francesco Paolo Luiso, have already worked on drafting reform proposals relating, respectively, to the criminal trial and the civil trial.

The work carried out by the commission chaired by Professor Luciani takes on particular relevance in light of the serious credibility crisis experienced today by the Italian judiciary and by the CSM itself, especially following the emergence in June 2019 of the so-called scandal of piloted appointments. Since then, the reform of the judiciary and the self-governing body of the judiciary has established itself as one of the main issues at the center of the country's political agenda. It therefore seems appropriate to examine the content of the main proposals drawn up by the Luciani commission.

THE REFORM OF THE CSM

In its concluding report, the study commission first of all puts forward some proposals to modify the functioning of the CSM, overwhelmed in recent months by scandals and controversies, linked in particular to the phenomenon of the degeneration of the currents of magistrates.

Precisely to "hinder the consolidation of aggregations of interest that transcend the correct exercise of board functions", the commission proposes to reform the method of election of the certified members of the CSM, through the introduction of the system of single transferable voting. This system, in the opinion of the commission, would make it possible to produce results of a basically proportional type in colleges of at least average size (four to five seats) and to strongly enhance the voter's power of choice, eliminating the phenomenon of useless voting, thanks the transfer to other candidates of the preferences expressed by the voters of candidates already elected or last in the electoral confrontation. Still with a view to reducing the weight of currents in the electoral competition, it is also proposed to reduce the number of signatures necessary for the presentation of individual candidates.

The commission is in favor of the hypothesis of a partial renewal of the CSM every two years, underlining, however, that a revision of the Constitution would be necessary for this change. This change, in the opinion of the commission, should also involve the appointment of the vice-president of the self-governing body of the judiciary (to be entrusted to the head of state).

Finally, the commission deems "worthy of careful consideration" the hypothesis of establishing – again through a constitutional amendment – of a High Court of the judiciary, composed of ordinary and special magistrates, to whom the disputes on the measures of the CSM and of the bodies guaranteeing the autonomy and independence of special magistracies, as well as the resolution of conflicts of jurisdiction.

THE CONFIRMATION OF DIRECTIVE AND SEMI-DIRECTIVE APPOINTMENTS

Also of particular importance are the proposals drawn up by the study commission on the conferral by the CSM of managerial positions (for example public prosecutor, president of court, president of court of appeal, etc.) and semi-directives (for example deputy prosecutor, president of court section etc.). As highlighted by recent scandals, this is one of the areas of intervention of the CSM most influenced by the conditioning of the currents.

To counter the phenomenon of current subdivision and the politicization of the appointment procedures, the study commission proposes measures aimed at promoting the publicity and transparency of the Council meetings, at discouraging (through the chronological treatment of the procedures) the practice of "appointments to package ”, and to strengthen the assessment of the skills – especially organizational and managerial – of the various candidates. In any case, it is up to the legislator to identify the general and specific indicators which the Council must take into account in choosing the judges to whom to entrust the executive and semi-executive positions.

MAGISTRATES IN POLITICS

In its concluding report, the study commission proposes a more rigorous discipline for the access of judges to political offices, in the belief that "any position of a political nature is likely to tarnish the image of independence and impartiality of the judiciary". In particular, the commission proposes that in order to stand for election the magistrate must ask for leave at least four months in advance and present himself in a "territorially different and distant place" from the one in which he performed his judicial functions. Furthermore, at the end of the elective mandate or political office, the magistrate should be relocated to a role with precise territorial and functional limits, in particular foreseeing that, for a certain period of time, he can only perform judicial and collegial functions and cannot aspire to a executive or semi-executive office.

DISCIPLINARY OFFENSES AND PROFESSIONAL EVALUATION

In light of the requirements for the proper functioning of the organization of the judiciary, the commission draws attention to the need for "rigorous application of the rules concerning disciplinary offenses" committed by judges. In particular, the proposal is made to introduce a specific disciplinary offense with the aim of making the managers of the offices and section presidents responsible "in taking the necessary measures to remedy the delays of the members of the offices they direct".

The study commission also proposes a series of measures to make the judges' professionalism assessments effective and "non-ritual", another subject that has been subject to heavy criticism for some time (at the moment these assessments are purely formal, with over 99% of judgments positive by the CSM). The proposed measures include, among other things, the strengthening of participatory guarantees for advocacy in the procedures for assessing the professionalism of judges in the judicial councils, and the assessment of the organizational skills of the magistrate's work.

OFF-ROLE PLACEMENTS

Significantly, the Luciani commission suggests a rigorous definition of the conditions for the placement of out-of-office magistrates, for example in ministries or international organizations (today there are about two hundred detached robes). Among the proposed measures, we note the reduction of the maximum number of magistrates overall who can be placed out of office and the provision according to which the placement can be arranged "only if it corresponds to an interest of the administration to which they belong and only if there are no negative consequences for the profile of the impartiality and independence of the magistrate ".

THE PRIORITIES OF CRIMINAL ACTION

Finally, the commission proposes that the priority criteria in the exercise of the criminal prosecution be "established by law". A reference of great importance, which aims to overcome the current situation in which, in substance, each prosecutor identifies in a discretionary way its own priority criteria in the criminal action.

A PRECIOUS WORK BUT ONLY INITIAL

The work carried out by the study commission chaired by Professor Luciani will allow the Minister of Justice Marta Cartabia to have a precious platform of technical proposals on which to rely in the elaboration of the amendments to the reform bills of the CSM and of the judicial system already hinged in parliament.

In the final report, the study commission acknowledges that the resolution of the many problems affecting the judiciary would require "a more comprehensive effort of analysis and reform". This effort, however, "would take a very long time", incompatible with the speed requirements linked to the implementation of the National Recovery and Resilience Plan. Furthermore, the Luciani commission specifies that it had to limit – by virtue of the mandate conferred on it – its scope of action to the formulation of amendments relating to the draft law of delegation under discussion in parliament, and that it could not therefore push itself to elaborate proposals for constitutional revision.

More than a point of arrival, therefore, the measures proposed by the Luciani commission constitute a starting point in the process of redefining the regulatory framework regarding the judiciary and the CSM.

The reform process does not appear to be easy, especially due to the particular current political context, characterized by the presence of an executive supported by highly heterogeneous political forces, bearers of deeply different ideas and values ​​regarding justice and the judiciary. The greatest tensions are recorded around the reform of the criminal process and the modification of the current statute of limitations, introduced in 2020 on the initiative of the 5 Star Movement. Even with regard to the reform of the judiciary, however, as recently demonstrated by the League's decision to support the collection of signatures for the referendum on justice promoted by the Radical Party and the debate that followed, the political forces that support the government continue to appear far from an agreement.

This is a machine translation from Italian language of a post published on Start Magazine at the URL https://www.startmag.it/mondo/giustizia-e-riforma-csm-fini-nodi-e-tensioni/ on Sun, 04 Jul 2021 07:51:42 +0000.