Plan against the magistrates

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Those who are interested in issues of justice is already starting to hear the same old story behind the expression “those who choose do not judge; those who judge do not choose”. Beware if you hear it for the first time: we are talking about constitutional changes! Changes that affect the judicial system, the set of laws which regulates the professional life and the career of the magistrate, that set of rules which finds its foundation precisely in the Constitutions of the modern countries that have the tendency to protect the magistrate’s autonomy and, at the same time, to monitor his work.

A delicate and complicated matter, because the control body must be impartial and resistant to influence, but at the same time, he cannot be released from the assessments of their own activities, that must be performed on the correctness of his work and even on his behavior.  This implies that the rules which must direct the activities, even more, the conduct of those who evaluate the behavior patterns of the others must be clear, but, even more, that the body that judges those behaviors, must be and appear completely alien to party interests; if this were not done, we could even doubt the credibility of the judicial function.

The complex and delicate balance sought by the Constitution – written by people who were personally victims and witnesses of the manipulation of the judiciary at the hand of a dictatorial regime  – led to the creation for the ordinary magistrates, in case of serious violations, a disciplinary section located in the bosom of the Judiciary’s Board of Governors.  A section composed of some of the components of this body through an election by all the  counselors.

The Section, as it is obvious, with its own assessments and interpretations of disciplinary rules, contributes in a primary way to achieving a magistrate model wanted by the Constitution, a trained professional and able to deal with the protection of ancient and new rights, without constraints, but also aware of the delicacy of a role that is accountable to the community through its constitutional bodies. Now, however, more and more insistently, people talk about changing the disciplinary section, reforming it, going to undermine the rules laid down by our Constitution in 1948.

And since it is considered, that although in front of a disciplinary law reformed in 2006 by the law, probably, in a deficient and hasty way, we cannot criticize of partiality on the operation of the section and on the results achieved by it, having the disciplinary judges acted with balance and moderation, it was claimed that the origin of the formations from the ranks of the CSM was not conforming to rules proper to our legal culture.

Wherefrom the sentence from which we are parties which, translated into terms more explicit , means that it is necessary to separate the administrative function – one that the components of the CSM play when they make decisions on the organization of the Offices and on the career of the Magistrate through, for example, transfers and appointments to place directors – from the repressive, punitive, proper to every disciplinary system. This is because, according to the supporters of this thesis, there seems to be a mutual contamination between the two functions, compromising thus,, if not the serenity of the entire body of self-government, that is of CSM, at least the components that are also disciplinary judges.

This thesis is devoid of real consistency: there have never been complaints about the behaviors of people who play this “dual role” of linearity and transparency.  Indeed it must be said with utmost clarity, this possibility to occupy both the role of a judge that the component of an body wanted to for the protection of the magistrates in the Constitution, was seen as a good opportunity to grasp of who this fundamental charter of the State thought and wrote. Only the judge actually immersed in the professional and human environment of the person being judged is capable, this is the reason of the current attitude, to ascertain the reason for behavior, the nature of the errors, the causes of his behavior.

Think, for instance, the situation – unfortunately frequent – of the judicial offices with insufficient numbers of magistrates and administrative staff, in which, perhaps, there was an increase in the unexpected workload – perhaps the bankruptcy of a company with many employees who are going to address the delegate judge- and to delay fulfillment by the latter.  Who, better than the components of that body of self-government that must know and cope with this situation, can evaluate, in our example that can be placed even in specular terms with a reduction of workload and a judge also dictum about lateness, can render themselves liable evaluate a judge accused of delays?

Who wrote and, above all, though, in his authority the situation that today we want to change by modifying the Constitution itself, since it is not possible to change ordinary laws, wanted to drop the disciplinary court “in the flesh” and in the reality of the judicial offices, whose situation cannot be fully understood by a person who can examine it only occasionally, during a disciplinary proceeding, but that must be learned by continued practice of studying the mechanisms and the organizational situations of the  judicial offices of the country. As it can be observed, without pretending to have the certainty of right and indisputable choices, it is a complex issue, constitutional rules are the result of balancing the interests involved and, where it is responsible for the organization of the State, always debatable: therefore, to trivialize such a complex choice that requires deep reflection by transforming it into a slogan that takes it for granted that there is a problem which nobody noticed in the last seventy years should, and here I am returning to what was said at the beginning, put in guard who listens to him, if the seal of our system is dear to him.

The true fear, that cannot avoid being expressed, that is born from the circumstance that every time one speaks of reforming justice, the butt is always CSM, the component of protection of the autonomy of the individual magistrate and, consequently, of the Judiciary itself, and even more, the impartial control function it carries out, wanting to change the system of disciplinary actions to change a component that, with all the criticisms that may be addressed to it, by some people for a supposed laxity, by others for hypothesized hardness, has been the guardian during these years, the magistrate who cannot be influenced by politics or by other centers of power for which we are envied abroad. This is the reason why many European countries and outside of our continent have wished to take as an example our 1948 Constitution to form impartial bodies devoted to the defense of the court’s freedom. So, if we really need to find a slogan, let us find something less of a slogan and more of an articulated thought”.

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