Separation of careers and powers of the Prosecutor

The constitutional reform on the separation of the careers of magistrates continues to cause discussion, especially where it is feared, rightly or wrongly, that its effects may affect citizens' freedoms. And it is only natural that the discussion also takes place among insiders, primarily jurists (judges, lawyers, scholars).

Just as it is natural that there may be different evaluations between them. This is physiological and I would even say healthy. The free exchange of opinions is fundamental to democratic life. It helps the decision-makers (which, in this case, could also be the citizens, in the event of a referendum approving the constitutional reform) to better weigh their assessments.

In this 'constructive' spirit, I would like to express my disagreement with what was argued in this newspaper (meritoriously committed to contributing to this 'multi-voice' debate) by Professor Giovanna De Minico on 2 July on page 14 .I do not agree, in particular, with the conclusion that the reform would jeopardise citizens' freedoms by handing over to a 'separate' Prosecutor powers destined to expand in a virtually unlimited manner, with the further risk of subjugating him to a judicial police force that in fact would no longer be directed by him (Article 109 of the Constitution), but would end up 'capturing' him in a spiral destined to feed 'tyranny' and 'investigative titanism'.

This conclusion certainly expresses a legitimate and guarantor-like concern, but it does not seem to me to be proven. First of all, the premise does not seem to me to be proved, that is, that the unity of the careers would ensure, better than the separation, the objective, which is entirely sharable, that "the judge must look at the parties with absolute subjective indifference, because for him, the prosecutor and the defendant are equal". On this point the burden of proof is on the party challenging the choice of separation.Secondly, if the unity of careers were such an important bulwark against the feared degeneration resulting from separation, it would be incomprehensible that the Constitutional Court, the first guarantor of freedoms, could repeatedly affirm that "The Constitution (...) does not contain any principle that imposes or, on the contrary, precludes the configuration of a single career or separate careers between magistrates assigned respectively to judging and prosecuting functions" (sentences 37/2000 and 58/2022). If it is not constitutionally due, the unity or separation of careers flows back into the area of political discretion of the constitutional legislator, a choice - we repeat political - on which the jurist must step aside.But even skipping this passage, which is crucial to say the least (as I was saying, if the concern is to safeguard the judge's third party status, the burden of proving that the unity of careers is the best way forward should lie with those who defend it), the other arguments are also unconvincing.It is not clear why 'in fact' the reform would allow the Pm to 'decide on personal freedoms, as if acting in a pneumatic vacuum'.

The autonomous powers of the Prosecutor, with regard to freedoms (personal, of communication, etc.), are already today very limited by the Code of Criminal Procedure (the prior intervention of the Gip is always required) and, after the Cartabia reform, also the personal search ordered by the Prosecutor is, however, immediately subject to the subsequent control of the judge.As for the 'capture' of the Prosecutor by the judicial police, this is a risk that exists in any case (although it is difficult to imagine Prosecutors so subjugated and prone as to accept this de facto subordination). But even assuming that there is such a risk, the question arises spontaneously: why should the unity of careers avert it more than a system in which the clearer distinction between the Prosecutor and the judge allows the latter to look with greater detachment and impartiality at what happens between the Prosecutor and the judicial police? Professor of Constitutional Law at the University of Rome Tor Vergata