In 129 dense pages of reliefs, iThe Maximary of the Court of Cassation, the office that extracts the maximums from the judgments of the Supreme Court, in one of its many relationships on legislative innovations, has identified many critical issues in the Security Decree. Nothing too unpublished, they were very emerged critical issues during the auditions of insiders and who had preceded the text of the decree law that entered into force on 11 April. Already in early May 237 university professors of public law had signed an appeal, in which potential risks of unconstitutionality were highlighted for the reasons for method and meritwhich are also at the center of the maximary report: On the one hand, the requirements of necessity and urgency provided for the law decree are under the lens, on the other the great heterogeneity of the rules that are contained there and then the many interpretative problems and interventions on the invitation of the penalties that could jeopardize the principle of proportionality of the penalty with respect to the seriousness of the crime committed and at the same time the strengthened protections for some categories that could in the whole make people less the same before the law.
We asked Roberto Bin, an emeritus professor of constitutional law in Ferrara, among the most skilled to explain with simple words, to help us interpret the theme we are discussed.
Professor Bin, the report is discussing, Minister Nordio said he was “surprised”. Is it normal for the maximum relationship to a law decree, is it normal for the report to become public?
“One of the tasks of the maximum office, which is called this because it extracts maximums of jurisprudence from the judgments of the cassation of which it belongs, has among its duties to help the judges to move evenly in the budding of the juriprude (i.e. of the judgments of the Court of Cassation, which constitute previous ones, even if not binding, ed.): I speak of maramma because the Italian Cassation, full of approximately 100 thousand cases per 100 thousand. It produces only in the criminal 50 thousand sentences per year, as many in the civil: an unreliable amount, which has no equal in the world. The maximum task is to help the judges to orient themselves in this quantity and to understand what the addresses of the jurisprudence are to correctly interpret the laws. Among the various tasks there is also to report on the legislative innovations on which there is a need to inform the judges to give uniformity to their way of dealing with them. This is the case of the so -called Security Decree, but these reports are all found publicly on the Cassation website and are ordinary administration ».
Why then are there so much about this case?
“Because the maximary judges found themselves before a clothes of rules, very different from each other, difficult to understand: a legislation desired with an ideological profile but not filtered by an adequate technical profile”.
An elegant way to say that they are not technically written at best?
“The first thing, that already all the auditions of experts had highlighted, is that this text, born from a bill already approved in part, is outside any constitutional hypothesis, originally spoiled does not have the requirements of necessity and urgency provided for by the Constitution for the decree law. But, at the center of the maximum report, there are above all interpretative problems: rules difficult to understand, others that risk producing unwanted effects: those on hemp, for example, in some places risk destroying an entire segment of agricultural and industrial production that has nothing to do with drugs that wanted to be the target “.
Can you change the rules so often slowing a justice that already arranges?
«Surely, but worse makes them change with a lacking legislative technique. In the days when the Security Decree was approved, I opened the British law on security: in a country where the previous one is binding and has been for three centuries of tension between parliament that produces the laws and judges called to interpret and apply them, the laws are written in a very capillahe way: the security law has an attachment in which it is explained what is meant by ‘drink’. We say to us to the judges that they must be in their place and limit themselves to applying without interpreting – technically nonsense – and it is done by giving them vague and dark laws, with very wide stitches of interpretation ».
It is difficult for the citizen to understand, how does all this fall on him?
“For example, on the subject of certainty of the sentence (if you commit an action you must know that that action is a crime and what you risk if you commit it, editor’s note) and on the subject of principle of equality: why is the same handbish if committed in the bus station instead of a road? The lawyers ironically explaining that by writing about crimes against the heritage it is possible that a embezzlement is more serious if committed under the station of the station that in a ministry does not make sense. And what does it mean “in the adjacency of the station”? How many meters do you need to establish if there is or there is no aggravating circumstance? I understand that logic is to contrast the bags in the stations, but by writing technically badly, they give uncertain laws, difficult interpretations and longer processes. Since it is difficult to counteract road crimes only by threatening higher penalties, it is likely that only a psychological safety comes out, while the real one will be made difficult by a justice that will slow down because of the internal difficulties: the law should give certainty and instead will give application uncertainty: it will certainly happen with the standard on the occupation of the houses, written in a very imprecise way. And it will happen because the ordinances of the judges will multiply that will raise issues of constitutional legitimacy and it will be necessary to wait for the response of the Constitutional Court, always prudent, but who will have to intervene in the face of this dedreto. A slow justice will arise ».
Safety is often a problem of the poor, difficult neighborhoods, so many elderly citizens feel fragile, hostage to scams and diffices?
“True, but the increase in penalties alone does not lead to desisting from such widespread crimes, especially since we have a country with overcrowded prisons and in indecent conditions, in violation of international standards”.
The criminalization of passive resistance in prison and the further request for “shield” to the police are discussed. Do you risk an orwellino right of more and less equal citizens?
“With this law today one would be punishable by one who makes a hunger strike in prison or rejected the hour of air without breaking anything and without committing any violence, it is the principle of Gandhi’s passive resistance, which until recently was considered a civil dissent model and in the meantime in the same text the power of the secrets increases, in the field of terrorism, giving more free hands that go beyond infiltrated, in a country that has known implications of the services. deviated in the massacres of black terrorism years seventies. It seems to me very dangerous. Problems with article 3 of the Constitution may arise, asking for citizens to be the same before the law ».
These days there is also a lot of talk about the relationships between President Trump and the American Supreme Court. Is it a reality comparable with the Italian one?
«No, they are not comparable. Today Trump has the majority in the Supreme Court, because he has appointed most of the judges, a sensational thing that has never happened in America. We do not have this problem, because our Constitutional Court has a balanced composition, appointed in part by the judiciary, part by Parliament, in part by the President of the Republic. It is true that he made the contemporary appointment of the four judges chosen by Parliament discuss, but our Court than the American one is much more balanced and purple. “
It also makes the application of the cut of amendments called ‘kangaroo’ to the constitutional reform of the separation of the careers of the magistrates, what does it mean?
“The so -called” kangaroo “is a normal tool of practice to combat parliamentary obstructionism, but one thing are ordinary laws one thing is a constitutional reform: since they are tools with which the majority manages to remove spaces from minorities, they can become a problem if they become anti -anti -debate techniques, marginalization of parliament. In these cases, if the minority suffers a serious vulnus, the possible reaction could be the uprising of the conflict of attribution before the Constitutional Court “.
