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In the second half of last year, the Superior Council of Magistracy, to invoke the constitutional principles laid down in Articles. 25, 97, 101, 107 and 112 of the Constitution (pre-constituted court, impartial public action, subjugation of the judiciary only to the law, diffusion of power among all judges including prosecutors and mandatory prosecution in respect of all ), had issued a resolution (1519/FT/2006) with which regulated aspects of detail on the new set-order structure of the offices of attorney.
By virtue of the Decree issued by the Government on the law of the European Parliament delegation, is in fact greatly increased the hierarchical principle that already, but to a lesser extent, characterized the prosecuting magistrates.The hierarchy, pushed to extremes, determines the concentration of the most important decisions in the hands of few individuals, and therefore affect the characteristic of diffuse power of the prosecutor.It was therefore necessary to lay down some guidelines to ensure that the concrete implementation of the reform of the public prosecutor's offices operate in harmony with the Constitution, since the constitutional rules always override the ordinary law Having to interpret and apply this last - before the conflict hypothesize with these principles - in consonance with the fundamental values ​​of society.
To this end, the said C.S.M. ruled that if a prosecutor had withdrawn the delegation of the inquiries already given to a prosecutor, as permitted by the rules to him, should clarify the reasons in writing so they could then be assessed by the body for self-government where the contrast between the head and deputy had come to his attention.It should be clarified that any criticism of the MSM with respect to a revocation of the delegation of investigation does not affect in any case the single process in which a deficiency is recorded, but would operate only on disciplinary or on the evaluation of professional interpreters of the prosecutor that too "literally" the principle of hierarchy.
It must be said that the withdrawal of the delegation of investigation does not result in any displacement of responsibility since it is the same office to deal with, even if it changes the magistrate inquiring.That directive was sent to all prosecutors in Italy, including the attorney general, the first hierarchically higher-order, so we have stuck.
The Superior Council of clarifying intervention seemed appropriate because the law did not pre-determined carefully the circumstances in which the prosecutor could waive the investigation has already been assigned to a deputy.Unlike the revocation of the delegation of investigation, the call-back is allowed in cases exhaustively pre-determined by law and was therefore useless for the CSM considered in the aforementioned resolution.
The call-back, institute rare employment constitutes an event even more traumatic than mere withdrawal of the delegation because of an investigation determines the shift from one office to another, by the Public Prosecutor at the Court of the Court of the Attorney General ' Appeals.One of the last (and very few) cases where a call back that the judicial record recorded work has seen a prosecutor at the Court of Appeals that called him a survey conducted by a Deputy Public Prosecutor at the Court and the latter complain to the Attorney General of the Supreme Court (the top of the hierarchy of proxies).
Just the hierarchy of offices of attorney, accentuated after the entry into force of the new judicial system, has prompted the Attorney General of the Supreme Court to believe that it is not for the prosecutor to complain about being deprived of an investigation whose ownership - it is now attributable to the office of the prosecutor's office and not to the individual judge to whom delegated in practice it turns out - can be claimed only by the head of that office.A reader devoid of specific legal knowledge would have sufficient reasons to be puzzled, since on the one hand the CSM refers to compliance with the constitutional requirements that must inspire the effective exercise of the powers conferred by law and, secondly, the Attorney General of the Supreme Court has declared inadmissible the complaint of the prosecutor, namely that the substance of the issue (if ' call-back was correct or not) has not even been examined, nor the rule of law providing for the confiscation has been brought to the attention of the Constitutional Court.
That player then has lender for an explanation.In order for a law received the attention of the Constitutional Court (the only body that can cancel it) requires that a judge must apply for and ask when deciding a case, the Attorney General of the Supreme Court, however, despite being a magistrate, does not carry out judicial functions and therefore can not apply to the Constitutional Court.The same player again, it might suggest that the rule (or rules) that relate to the organizational powers of attorney of the republic can be put into question when, after investigation, the judge comes into play to decide the case, unfortunately this possibility is excluded because the court can not review the legitimacy of the PM in front of him except in a purely formal basis of the facts that qualify the endowment (or head of delegation, in fact, call back from the Attorney General of the Court of Appeal).
As you can see, then, is very difficult to induce the constitutionality of regulations concerning the organization of the prosecution.Difficult does not mean impossible.If, for example, the Attorney General of the Court of Cassation, which is also the owner of the disciplinary action against judges, however, being forced to exercise, seeing in the act to call back on which you are not able to deliver due to ineligibility the complaint, an abnormality severe enough to let configure a disciplinary offense (such as undue interference in the activity of another judicial magistrate, or the adoption of a measure for the macroscopic failure) could initiate its process in which the judge ( the disciplinary section of the CSM), doubting of one or more of the provisions under discussion, would eventually cause the scrutiny of constitutionality.
Leaving aside the consequences of a disciplinary nature, which still does not solve the problem, because the investigation did not revert to the substitute which has been removed, it must be observed that the order goes into crisis when it is theoretically possible that the exercise of power, allowed by law, can in practice be implemented in a manner configgenti with the reasons for which it was given and no remedy is expected to correct this anomaly hypothetical.Nicholas Saracino(*) Magistrate