By decree law

A new gag against magistrates arrives

Ready for the Council of Ministers to tighten the grip on lawyers who do not abstain for reasons of convenience

20 November 2024

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Il ministro della Giustizia Carlo Nordio

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Said, done. If Justice Minister Carlo Nordio declares that a judge 'the less he talks the better', once again reviving the controversy with an ANM that accuses him of wanting to silence the judiciary, a new gag rule arrives on the table of the next council of ministers. Not aimed at journalists, but at the togas. In the text of the decree-law that assembles a series of heterogeneous regulations (from justices of the peace to business crises, from prison construction to computer crimes), all however considered urgent, there is in fact a disciplinary clampdown that updates the discipline of offences attributable to judges and public prosecutors.

Strengthening

To the current conscious failure to comply with the duty of abstention, applicable when, for example, a magistrate has a personal interest in the proceedings he is called upon to deal with or when the same proceedings involve a family member, the existence of 'serious reasons of convenience' is now added. This notion is so extensive and of such uncertain application that it legitimises any doubt as to whether the ministry itself has been given carte blanche to take disciplinary action against undesirable magistrates.

The impact

Unpleasant for the measures taken, such as those on migrants in recent weeks with the white-hot controversy over the non-validation of detentions, to be censured not in the ordinary jurisdictional path through the mechanism of appeals, but rather by leveraging the opinions expressed, the participation in demonstrations.

Interpretations under scrutiny

But the concern, which is already rampant in the judiciary, also emphasises the possible disciplinary challenge because the interpretations expressed on controversial norms are 'improper'. A manifestation of (juridical) thought that could oblige the magistrate to abstain if called upon to apply norms considered to be of poor technical hold, where any reference, for example, to the possible friction of the recent norms wanted by the Government in the Safe Countries Decree with the Community discipline, is not purely coincidental.

The abuse of office effect

Formally, in the preamble to the decree-law, the intervention is explained by the need to amend the discipline of disciplinary offences against magistrates for the repeal of abuse of office 'in order to expressly equate, for the purposes of disciplinary relevance, the cases of obligation to abstain typified by law with those in which abstention is subjectively subject to the existence of serious reasons of convenience'.

In short, the contested repeal of abuse of office, now before the Constitutional Court with 6 (at the moment) referral orders, is being used not so much to correct some of its most obvious distortions, but rather to stiffen the disciplinary system against magistrates.

Contradictions

With cascading repercussions of a systemic order. Where they are already pointing out the difficult coexistence of the incoming rule with the long-standing rule of the Code of Civil Procedure which, in Article 51, leaves the magistrate free to request abstention from his superior for all cases not expressly provided for. But then, the judges are already asking themselves, what sense does it make to establish an offence for a case of abstention that the same Code only considers optional?