The contradictory reforms of criminal law
Diritto e libertà

The need for reforms in the Italian penal system has been a raw nerve for too long. The Meloni government, when it was formed, entrusted Carlo Nordio with the Ministry of Justice. Nordio's credentials represented, on paper, a guarantee for a possible comprehensive reform design.
Carlo Nordio is a former public prosecutor, appreciated for the respect he has always ensured, despite his position as prosecutor, to the guarantees of suspects.
Having left the gown, he had always done his utmost, as a commentator, lecturer and columnist, to defend and promote the essential features of a liberal criminal law.
Furthermore, Nordio had chaired yet another ministerial commission to reform the criminal code. The results, like those achieved by another predecessor, Giuliano Pisapia, were certainly encouraging. The draft of the new criminal code would have been a clear step forward compared to the one still in force that had been issued in 1930, in the midst of the fascist period, and which was, and remains, heavily indebted to the authoritarian culture of that repressive regime of individual freedoms. The 1930 Code itself, the Rocco Code in the name of the Minister of the time, had in fact replaced the previous criminal code of post-unification Italy, the Zanardelli Code, which was instead a code with a clearly liberal imprint.
One of the most distinguishing features of the Codice Rosso is the severity of the penalties it envisages, combined with a description of the offences that is characterised by a tendency to expand the illegitimate conduct. The definition of conduct, in fact, tends to leave significant room for interpretation, which is therefore accompanied by the possibility of an obvious repressive tightening.
Unfortunately, however, the best reform projects tend to remain in the drawers of some ministry gathering dust.
The Rocco Criminal Code was flanked, in an overall systematic vision, by a Code of Criminal Procedure, issued in the same year, with a clear inquisitorial imprint, with a strong imbalance between prosecution and defence, in favour of the public prosecution.
In the course of the republican regime, and following the new principles of the 1948 Constitutional Charter, inspired by democratic values, a redefinition had been initiated, in an interpretative key, of the penal code rules that were most at odds with the changed cultural and political sentiment of democratic Italy. In this effort, a primary role must be acknowledged to the Constitutional Court, which declared that many of the incriminating provisions of the Rocco Code were contrary to the Constitution.
Then, in 1988, the new Code of Criminal Procedure, the Vassalli Code, named after the then Minister of Justice, was approved and came into force. It overturned the inquisitorial trial model - incompatible with liberal principles - and introduced an accusatory trial, seeking its inspiration from the adversarial models in vogue in Anglo-American legal systems.
But, of course, the mere enactment of a new code is not in itself a guarantee of a complete reform as long as both the culture of the interpreter and the legal norms are not aligned with the guiding principles of the new model.
Obviously, being a Minister of Justice imposes a greater burden. One has to move from proclamations of principle, from perfect and agreeable articles, to the ability to promote a broad design of reform and, above all, to find the political consensus to implement such designs.
The beginning was not consistent with the liberal premises.
As soon as he took office, in the wake of a news event - the organisation of a rave party - the Minister helped to enact a new crime, the usefulness of which was immediately questioned.
This is another typical trait of Italian criminal legislation: in a system that certainly does not lack sanctioning rules, some new crime is always inserted on the emotional wave of some news event. The sadly well-known symbolic expressive function of which the jurist Giovanni Fiandaca speaks.
These are usually highly ideological rules of little practical use. They only serve those who issue them to assert some identity profile and to do the worst thing in legislation, especially criminal legislation: respond to the mood of public opinion.
In the same wake came another piece of legislation, the introduction of the universal offence of gestation for others. A universal offence because the Italian state, according to the legislator's perspective, should oppose this practice even if it is carried out outside its national borders and therefore even if it is carried out in legal systems that admit it.
Regardless of one's opinion of this practice, this is clearly not a liberal approach.
And again, the Minister himself favoured the enactment of a package of regulations aimed at toughening the conduct of resisting a public official: if there is one profile, as we have seen, that is not lacking in the criminal system, it is that of the severity of the criminal sanctions.
And now we come to the most recent news.
The government has approved a bill that intervenes on certain substantive and procedural profiles.
On the one hand, the crime of abuse of office, i.e. misconduct by a public officer, is repealed. This is a troubled case in point, the subject of interventions in the past that sought to better define the contents of the sanctioned conduct. According to the promoters of the repeal, this offence is too general in its definition, with the risk of producing only the fear on the part of the public official to take decisions within his competence. In addition, this rule would prove to be devoid of effective sanctioning content given the few convictions that are recorded (only 18 convictions in the year 2021 against more than 4,700 charges). In fact, abuse of office was most often contested together with other offences: bribery, payment under duress, and so on.
According to critics of abolition, however, the small number of convictions would not be able to express the general prevention function implemented by this offence provision.
Moreover, mere repeal will not be decisive, also because of the obligations arising from Italy's participation in the European Union: a similar provision is present in all European legal systems, so much so that the promoters of repeal acknowledge that an additive intervention is not excluded in the future. Not necessarily, in fact, the conduct previously sanctioned by abuse of office will be covered by the other competing offences.
On the other hand the bill deals with some procedural aspect.
With the entry into force of the new law, for the issuance of personal precautionary measures it is now envisaged that a monocratic judge will no longer have jurisdiction, but a collegial one, in order to allow for greater weighting before issuing measures that are highly restrictive of the suspect's freedom.
Much clamour, then, was associated with the tightening of the disclosure of a particular category of investigative acts: wiretapping. Those who criticise this tightening argue that it is an unfair restriction of the public's right to information.
This criticism, however, misses the point.
Wiretapping is an act of investigation, i.e. it is carried out - correctly - without the knowledge of the intercepted person. And they take place during the initial phase of criminal proceedings, which is not yet the 'trial' . The trial, in fact, in the accusatory and non-inquisitorial tradition, is the public moment par excellence . Indeed: the only public moment, which is different from the concept of democracy. Where the jury exists as the judge of fact, the jurors are isolated from public opinion for the duration of their term of office precisely to avoid being subjected to the moods of public opinion. And again, investigations, and the results thereof, are the act of one party, the prosecution, while the trial, to be such, presupposes the participation of the accused with his own defence. The trial presupposes the confrontation between opposing parties, otherwise it is not a trial. If the trial is adversarial - several are in fact the alternative rites that are defined without publicity of the hearings - anyone, even reporters, may attend and listen to the testimonies and will witness the formation of the evidence that is such only if taken in adversarial proceedings. There is no harm to the trial in limiting the dissemination of wiretapping. On the contrary, it limits the formation of a prejudice, which is to form an opinion without having heard the position of the accused . Otherwise, the most 'democratic' instrument is lynching . Exactly what one would like to avoid .
The latter measures seem to be more consistent with an approach that respects the liberal principles of the penal system.
The real test of reform capabilities in the criminal system will be represented by the announced, but always postponed, constitutional amendment concerning the separation of careers between Judges and Public Prosecutors.
In the accusatory trial system, in fact, the prosecution and the defence must be placed on a truly equal procedural footing. The judicial system, on the other hand, remains characterised by the organisation that was the result of the old inquisitorial trial model. This trait must be overcome.
To achieve this, however, requires a reform of the Italian constitution, which requires a strengthened and complex approval process and, above all, political cohesion with regard to the objectives pursued.
And this is the point: the support of the political forces in parliament for such a liberal approach is certainly in the minority. Will Minister Nordio be able to overcome this negative prejudice?
Will he be able to realise the proposals he advocated as a commentator? The political art is much more complex: one's personal opinion must be complemented by the ability to persuade. This is the minister's challenge.
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Questo articolo è stato pubblicato in versione italiana su Mondo Economico nel marzo scorso, dopo l'approvazione della "legge Nordio" in prima lettura al Senato della Repubblica.
