A reform against the media trial

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Hatred here or there. The justice reform approved on Tuesday in its first reading by the Senate has generated a multitude of similar and opposing comments. And amidst a riot of supporters eager to assert their own absolute truths about the reform— it's the reform of the century, it's the reform Berlusconi wanted, it's the triumph of guarantees, or rather, it's a dangerous reform, it's a subversive reform, it's a reform that's turning Italy into a banana republic —the impression is that many have chosen not to focus on the real crux of the political transition we face today. This crux actually corresponds to a crossroads at which public opinion and politics as a whole find themselves forced to reconsider every time the news presents reasons to choose sides. Either one side or the other. The great divide in the world when it comes to justice is not between those who want to weaken the judiciary and strengthen politics, nor is it even between those who want to strengthen the judiciary to weaken politics. The great divide in the world when it comes to justice is between those who consider media-driven trials a national tragedy requiring forceful intervention, and those who instead consider media-driven trials a virtue of our country, to be defended at all costs. The great divide in the world when it comes to justice is not just about whether a reform is good or bad, but about the desire to understand that in Italy , the lack of balance between state powers—between the judiciary, the legislative, and the executive—is due not only to a judiciary that often struggles to conceal its ideological tendencies, but above all to a complex system that renders the public prosecutor a power with few counterweights. Those who consider the media's overflowing process an obscenity, those who consider the presence of an irresponsible public prosecutor a tragedy, those who consider the lack of mechanisms capable of protecting the rights of an accused person a problem for the country, those who consider the presence of a judicial system that casually transforms a suspicion into evidence, a suspect into a convicted person, a theorem into a sentence a disgrace to the rule of law , should remember, as the wise man says, that the best is the enemy of the good, that what is necessary is not always sufficient, and that the worst possible way to dismantle the mechanisms of the media process is to choose not to move, to do nothing, and to go along with the status quo.

The Nordio reform, of course, is more than perfectible , but the attempt it carries forward is to dismantle the mechanisms that have poisoned the Italian justice system and that have allowed, over the last thirty years, the nonchalant trampling of the three articles of the Constitution that are mistreated every time a magistrate turns on the pillory fan and makes his contribution to making the inviolability and secrecy of communications open to discretionary violation by inserting even communications that are criminally irrelevant into the machine of smearing (Article 15), to consider the presumption of innocence a useless ornament of the Constitution (Article 27) and to make due process, where in theory there should be equality between prosecution and defence, an accessory to our rule of law (Article 111). If viewed from this perspective, it's easy to see that having a clear distinction between those investigating and those judging (separation of careers) allows us to no longer indulge a widespread and real suggestion: that the judiciary is not a monolithic block, that judges and prosecutors are two different things, and that offering a framework within which the judge is even more of a third party than before allows us to redress, to a small extent, the imbalance that exists in the media trial between prosecution and defense.

If viewed from this perspective, it's easy to see that the desire to introduce a moderated lottery system within the Superior Council of the Judiciary is also aimed at neutralizing one of the central elements of the media process: the excessive power of factions. Only those who have chosen to close their eyes to what the judiciary has become in recent years can pretend not to realize that the hegemony of factions within the judiciary and the uncontrolled spread of the media process are two symmetrical phenomena. The more a magistrate's career is built on the influence of factions, the more he or she will need to be noticed for what he or she does, not just for what he or she achieves. And the more a magistrate needs to be talked about, to climb the ranks, the more he or she will be inclined to view the media process as a multiplier of his or her own opportunities. The Nordio reform isn't the best in the world, we know. It has many flaws, and one of the main flaws is probably the presence of two Supreme Courts of Justice (CSM), which risks making the public prosecutor even more of a protagonist, even more of a super-accusator, than he is today. But a reform that seeks to reestablish a balance between prosecution and defense, that seeks to weaken factions, that seeks to give the judge a more external role, that seeks to move trials as far away from talk shows as possible and closer to the courtroom, is a reform that can only be considered dangerous by those who have dangerously chosen to consider media trials not as a vice but as a virtue of our country. Either one side or the other. We have chosen which side we are on. Against pillorying. Against barbarism. Against subversion. Against the proliferation of a republic founded on the constant overflow of prosecutors and the systematic demonization of the defense. Either one side or the other. Choosing which side we are on shouldn't be so difficult.

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