Legal populism that makes one long for the Rocco Code

Humanity has outlawed private vengeance. It has abandoned God’s judgement (trials by ordeal, such as walking on hot coals) and the direct judgement of the ‘people’ (Jesus or Barabbas), in favour of institutions such as the judiciary in its various forms throughout history. Now it is the rulers who are calling upon the judgement of the ‘people’, thereby undermining the justice system. Alessandra Ghisleri’s detailed survey, published yesterday in "La Stampa", gives pause for thought far beyond the Roggero case. 45.4 per cent believe it was a case of self-defence, even though there is not a single legal expert who has not agreed with the judges’ assessment. That same 45.4 per cent agree with the slogan ‘Self-defence is always legitimate’, a slogan which today translates into Senator Borghi’s proposed bill – unanimously rejected by all legal experts and blatantly unconstitutional. Elon Musk’s outbursts would be irrelevant were it not for the silence – or tacit approval? – of our government leaders. But what was not irrelevant was the campaign waged by government figures who wavered between claiming it was self-defence against all the evidence, and criticising the disproportionate sentence, even though it was close to the minimum given all the mitigating circumstances. 53.2 per cent are in favour of a pardon: we have witnessed interference with the prerogatives of the Head of State, and, with the demand for an immediate pardon, the delegitimisation of the Court of Cassation. Another issue is the possibility of a partial pardon which, as in other cases, would allow access to alternative measures after a period of imprisonment. 71.2 per cent would like to completely rule out any compensation – an irrational and unconstitutional proposal – whereas a serious debate should focus on proposals for mechanisms to reduce the amount.

When those in power incite the public to pass immediate judgement, nothing escapes scrutiny: the Fakir case in Bologna. The Home Secretary has already ruled in favour of the officers, whilst others have already passed judgement. The investigations are likely to be lengthy, not least due to the complex analysis required of the data revealed by the post-mortem. The term ‘criminal immunity’ has been abandoned; it no longer applies, reportedly following moral suasion from the Quirinale. The aim had been to ensure impunity for law enforcement officers at all times and under all circumstances. It is precisely by transparently establishing procedures and limits that we pay tribute to those who must exercise the legitimate use of force, often putting their own safety at risk, as happened in Val Susa. Entry in the new ‘45 bis’ register has become essentially irrelevant: the investigation must go ahead, and those entered in the new register are afforded all the safeguards enjoyed by suspects listed in Form 21. There has been an emphasis on the presumption of innocence, yet, for propaganda reasons, we end up reinforcing the stigma of guilt associated with mere inclusion in the register of suspects. The only positive aspect is the correct designation of ‘priority’ with a 120-day time limit for investigations; it being understood that, should this prove insufficient, the investigations will continue in any case, with the person being entered in the standard register of suspects.

But sacrifices are made daily on the altar of propaganda: with yet another ‘INsecurity decree’, the time has come to hold under-18s criminally responsible. Since the legal system wisely provides for a range of intermediate sanctions, there is no longer a stark choice between acquittal on grounds of lack of criminal responsibility and a prison sentence. Nationwide, acquittals on grounds of lack of criminal responsibility account for less than 1 per cent of cases (Ministry of Justice figures). Prosecutors and juvenile court judges have always been required to assess, on a case-by-case basis, the actual maturity and criminal responsibility of a person under the age of 18. The introduction of a ‘presumption of criminal responsibility’ would change nothing, because what stands before the courts is a young person, not the abstract concept of a ‘juvenile offender’. It is also overlooked that European Union Directive 2016/800, Article 7(2), states: ‘A child who is a suspect or accused person in criminal proceedings shall be subject to an individual assessment. That individual assessment shall take into account, in particular, the child’s personality and maturity, their economic, social and family situation, as well as any specific vulnerabilities of the child’. Must we really lament the legal rigour of the ‘fascist’ Rocco Penal Code, which in 1930 laid down the impeccable Article 52 on self-defence and the equally impeccable Article 98 on assessing a minor’s capacity to understand and form their own will?