One of the criticisms that strikes public prosecutors the most is that of “picking out trials”, that is of deciding without rules or, at least, without transparent parameters, on what cases to investigate and which to put aside. The experience in the Courts teaches that the real attempt of the public prosecutors is to achieve in all cases a conclusive ending of the preliminary phase, but this leads to asking the Court a great number of hearings, more than the structures can handle. An additional passage is the grade appeal, where, considering the necessity for more consideration and comparison, three judges decide together, while om the first level the majority of trials is decided by a “monocratic judge, collegiality being an exception”.
The legislator, knowing well the problem, has wanted to put some rules and he imposed, in the penal hearing and not in the preceding phases of investigation, that for priority management “ should be taken into consideration the seriousness and injuriousness of the crime, the prejudice derived from the delay of proofs collection and verification of facts, as well as the interests of the injured”. Checking is needed because “Offices promptly communicate to the Supreme Judicial Court priority parameters to which conform during the procedures and hearings scheduling”. The strictness of the respect of this rule enables to evaluate the President of the Court and Presidents of Chambers when their assignment is confirmed.
At the same time, for public prosecutors, magistrates’ internal board of supervisors approved resolutions which make Public prosecutor’s activity transparent . It cannot be underestimated that there are many condemnations, called “crime records” by the Code of Criminal Procedure and the filter carried out in the offices of investigation is complex, so that criticism of discretion should be considered. Ungenerous and often instrumental, criticism aims merely at changing the organizational system of the offices, with the desire to control them. The same spirit that animates the so-called separation of the careers among judges and public prosecutors, is often perceived by those who hide dark maneuvers at work which lead to prefer one procedure to the other.
There are many possible remedies, from the indispensable increase of administrative personnel of Justice to the reduction of the number of crimes, just to mention the main ones. Surely we should reflect upon the role of judicial activity, in particular the requesting one, conducted by the public prosecutors. The justice system, in every organization, is destined to the repressive moment, being up to the Public Administration the physiology of social life, the “daily” management. The crime of which take care penal magistrates, should protect the interest of primary importance for the community, criminal law should be the extrema ratio, its intervention should be necessary, so if the right is already protected by extra-penalty sanctions the penalty tool is unjustified. One of the fathers of the Constitution, Piero Calamandrei, has affirmed that penalty justice is “a sword without handle, it can hurt also those who thinks to slew it”.
The consequence is clear, if the Public administration does not do what is in its possibilities for a better management of the society, but acts incorrectly, sometimes because of ineptitude can have malicious bahaviour, precisely because no clear rules and prior controls are put, it is obvious that it will create a justice system, fragile in terms of organizational profile – which would receive a number of crimes that are unmanageable and not efficiently handled. Justice system, in every country, in every time, in every social structure, should take care of the society’s pathology and not become a mandatory passage of the control chain. According to this point of view we should also consider that many, in presence of problems resolvable with simple good will of an accord or address to a Civil judge, decide to file imaginary complaints in order to make the public prosecutor intervene.
A strange sensitivity in our country, today. On the one hand, criticisms towards the public prosecutor activities and, on the other hand, a continuous appeal to his intervention so that with his magic wand every problems can be solved. Maybe this is the reason why many people want to control him: but will the public prosecutor controlled from the outside have the same credibility and prestige of a magistrate that, even though burdened with work, knows that he does not depend on politics or power groups.
Translated by Ecaterina Severin