It is my practice not to comment on judicial resolutions until they are known in their entirety, and in the case of the conviction of the State Attorney General – it is quickly said -, I will do exactly the same. Nor do I comment on the many chatter that usually exists about the meaning of a phrase, neither before nor after it has been handed down. These intrigues and cabals, which in this case have existed for many months, I believe do not help to preserve something that as a citizen should interest everyone: the image of independence of Justice. And for this chatter, intrigue and cabal to happen, indiscreet magistrates are needed, and this is something that offends anyone who believes in institutions and has even the slightest sense of the State. I will therefore limit myself to commenting in this case on only two very striking facts, which do not help in any way to preserve that image of institutionality.
The first is that months ago many journalists made a prediction that I specifically criticized. They then said that of the seven judges appointed to judge the State Attorney General’s Office, five were conservatives and two progressives, with first and last names. Some even dared to say that the former would vote for conviction and the latter for acquittal. Well, that’s exactly what happened. We are tired of seeing how members of the General Council of the Judiciary vote in blocs, when this very body exists to help preserve the independence of the judiciary, or at least this is what the Council of Europe still believes. We have also seen, for a long time, the Constitutional Court divided into two pieces, with two sides repeatedly reported by journalism. On some occasions, the members of the said council and the magistrates of the Constitutional Court also called themselves “conservative” or “progressive”. Some will think it’s good that they do it, but personally I don’t think so. The United States, in this case and lately in too many others, is an ugly mirror to look at oneself in. And it does not serve the image of independence that Justice must preserve for its servants to wear t-shirts. One may feel fear – or even terror – that this cancer has now spread to the Supreme Court.
The second is an evil that is also already known: the hateful custom of making the verdict of sentences known before they have been written. Some say it is to avoid leaks, what a paradox. In any case, the Constitutional Court began to do so years ago in media cases that left all observers perplexed. Even if the laws do not expressly prevent this authentic evil In practice, it is easy to understand a prisoner’s anxiety after being sentenced without knowing why. In this case, more than in any other, this concern is transferred to an entire part of society that did not foresee a ruling against the Attorney General at all, much less after some images of the oral trial hearings. But now that part of the citizenry will observe with perplexity a sentence that is news today, but which may no longer be news when the entire sentence is published in a few days, or it is not known within how long. During that time no one will know whether the sentence complies with the law or whether it is a very serious outrage. But whether it is the first or the second – or neither of the two – when the motivation is published it may no longer matter to almost anyone, or at least to many fewer, which does not seem acceptable even in terms of the democratic control that the population has the right to exercise on the motivation of judicial resolutions, as Michele Taruffo taught some time ago.
But it also makes no sense to vote only for a sentence and not for a reason. The logical thing is for there to be an entire draft sentence, which will be voted on by the magistrates once agreed and completed. Voting only on the sentence gives the impression that it was decided only in terms of “guilty” or “innocent”, and then it doesn’t matter what the motivation is, because both will not be convinced by what others say and would continue to vote the same way. Although the main arguments of the reasoning have been established in the deliberation, such a way of proceeding is completely contrary to the way a collegial court should function, with magistrates listening and being persuaded by the arguments of others, which is easier when a written draft sentence is presented and that draft is voted on. And not just one”guilty“O”not guilty,” as if the Supreme Court were a U.S. jury, and not the prestigious body of professional judges our laws require it to be.
In any case, we await the sentence and your individual votes. Perhaps we are even convinced of one or the other when we read them. Let us not miss the opportunity to change our minds, which is always healthy, nor let us miss the opportunity, for once, to leave ideology or opportunism in the drawer when we evaluate a legal question, as indeed every honest jurist, but certainly every judge, is obliged to do.
