This time there are no prosecutors, on which the controversy usually concentrate, for their role of public accusation and as such the first to “expose themselves” in the preliminary investigations phaseAnd Not even the criminal judges who are usually found, most of the time in spite of them, at the center of the public scene, For having made judicial decisions commented favorably or unfavorably depending on whether they are welcome or unwelcome to those who governs, in a debate, at this moment, characterized by strong tensions between the executive and judicial power, reflected by the discussions on the controversial reform on the separation of the careers which in this period is the stone conviction of each position on the subject of justice.
This time the arrows touch the supreme judges of the United Sections of the Civil Cassation, which accepting the appeal of an Eritrean citizen currently with refugee status in England, where he now lives, They issued an ordinance that establishes the duty to compensate it for the undue detention on board the Diciotti ship, an investigation by which an investigation against the then Minister of the Interior Matteo Salvini had started, against which the authorization to proceed had been denied by the Chamber of belonging. The two civil and criminal events are not for how today the rules on the relationship between civil and criminal judged, directly interdependent are written.
What are the United Sections and what they decided on
It was not a question of deciding if there had been crimes in this case, but to establish whether, in the dispute between a single Eritrean citizen and the Italian governmentthe person held was entitled to the refreshment for non -pecuniary damage he asked.
The United Sections of the Court of Cassation, the largest and most high jurisdictional body of the Italian legal system, have accepted, partially and made it reiterating some principles intended to make jurisprudence, but only for subsequent appeals on any future similar cases. It should be remembered that The acceptance was partial: accepted only the main appeal, rejected the one in the incidental one while the cases of other applicants were rejected in the first and second degree because it is always decided on concrete cases, not in general.
The principles reiterated, on the basis of which rules
Qualifying the act as “administrative”, and therefore, unlike the political act not removed from jurisdictional control, the judges wrote: “… to the extent that the scope of extension of discretionary power, even the very wide one that connotes a government action, is limited from constraints placed by legal rules that mark their boundaries or direct their exercise, compliance with these constraints constitutes a requirement of legitimacy and validity of the deed, unions in the appropriate offices. And among these constraints primary relief certainly has respect and safeguarding the person’s inviolable rights. The action of the government, although motivated by political reasons, can never be considered subtracted from the jurisdictional union when it is placed outside the limits that the Constitution and the law impose on him, especially when the fundamental rights of citizens (or foreigners) are at stake, constitutionally protected».
And with reference to the sources: “The obligation of rescue at sea corresponds to an ancient customary rule, represents the foundation of the main international conventions, as well as Italian maritime law and constitutes a precise duty all the subjects, public or private, cHe has news of a ship or person in danger existing in any sea area in which this necessity occurs; As such it must be considered prevalent on all rules and bilateral agreements aimed at combating irregular immigration “.
Remembering that: “The international conventions on the matter, to which Italy has joined, therefore constitute a limit to the legislative power of the state and, based on articles 10, 11 and 117 of the Constitution, cannot be the subject of derogation on the basis of discretionary choices and assessments of the political authority, since Assumonor, based on the “Pacta Sunt Servanda” principle (the pacts must be respected, editor’s note) A hierarchical rank higher than the internal discipline “.
The reactions of politics
The decision aroused bright reactions, not always composed, in the government. Giorgia Meloni He said that “the United Sections of the Court of Cassation condemned the Government to compensate” by affirming a very questionable compensatory principle, that of the presumption of the damage, in contrast with the consolidated jurisprudence and with the conclusions of the attorney general “. Tajani He said: “It is a sentence that I do not share, I do not share the legal foundations” ». Has increased the dose, Matteo Salvinidefining the “shameful” decision, stamping it as “another invasion of embezzlement” and stating polemically: “If there is any judge who loves illegal immigrants so much, welcomes them a little at his house and keeps them. Who knows if in front of the splendid palace of the Cassation they set up a beautiful Roma camp and a nice refugee center, maybe someone would change his mind ».
The note of the first president of the Cassation
Tones that have induced, for the first time in history in such an official way and by the highest function of the Italian judiciary, Margherita Cassano, first president of the Court of Cassation to issue a formal note on headed paper and signed by his own hand, in defense of the separation of the powers: «The decisions of the Court of Cassation, like those of the other judges, can be subject to criticism. Instead, the insults that question the division of powers on which the rule of law is unacceptable are unacceptable». The note did not stop the counterpart of the League: “Of unacceptable there is only a sentence that obliges Italians, including unemployed and pensioners, to pay those who claim to enter Italy without permission”.
In defense of the independence of colleagues of the United Civil Sections, theNational Association Magistrates: «Once again inexplicable is the distance between the recognition of the principles and the application of the same. Now also the decisions of the United Civil Sections of the Cassation are subject to unjustified attacks, without any respect for the separation of powers. Every time a decision is unwelcome, it is connected to an ideological evaluation».
And in the meantime all too The councilors toga (i.e. magistrates) of the CSM, together with the lay people (i.e. members of political appointment), coal, pope and rhomboles, (excluding only the laity of the center right) they defended the judges of the Supreme Court, whose decisions “They must be respected because in charge of the principle of equality and manifestation of the right to receive jurisdictional protection enshrined in article 113 of the Constitution. The Constitution is a common good of Italian citizens and must be protected by all institutional actors».
What happens now
It should also be said how the refugee lawyer who won the appeal that compensation has not been automatically noted, following the decision of the Supreme Court, but can be established by the Court of Appeal only following a new appeal: if the interested party does not propose the judgment within three months of the publication of the ordinance, the case is extinguished.
