Piero Calamandrei wrote that in the courtrooms the Crucifix should not hang behind the judging panel but, on the contrary, “in the face of the judges, clearly visible on the opposite wall, so that they may consider it with humility while they judge and never forget that it is looming upon them the terrible danger of condemning an innocent person ».
This terrible danger – evoked by the greatest Italian jurist of the twentieth century, one of the fathers of our Constitution – is exactly the reason why we have included the concept of guarantee, together with those of liberalism, Christianity and Europeanism, among the founding principles of Forza Italia.
As I explained in the three previous articles, to link these four concepts together is the idea of the sacredness of the person. The idea that every human being is the bearer of absolute rights, first and foremost that of freedom. The State exists precisely to protect the freedom of individuals, and can limit this freedom only when this limitation is indispensable to protect the freedom and rights of others from violation or prevarication.
The state is important for liberals, we are certainly not anarchists, but the main function of the liberal state is precisely that of protecting people’s rights, right to life, personal safety, property, etc., stopping and punishing those who put them in danger. The state has the ownership of the legitimate use of force, even the force of arms in extreme cases, but only for the purpose of protecting the freedom and rights of every citizen when they are endangered.
Prosecuting or convicting an innocent is the worst crime the state can commit. It means depriving a human being of freedom, of affections, of work, of goods, in many cases of dignity and social consideration. It also means failing in the very function of the state, which renounces to prosecute the real culprits, the real criminals, and therefore to protect and defend the life, property, legitimate rights of people. It even means encouraging crime, diverting means, human resources, money to rage against innocent people.
However man-made institutions are by definition imperfect, human beings are fallible, the best investigator, the most honest and professional, can still make a mistake. The reality is often difficult to interpret, those who believe they have identified a culprit are naturally also led in good faith – to seek evidence that reinforces the thesis of guilt, certainly not those of innocence.
For this, a third judge is needed, detached from both the reasons of the accusers and those who defend himself, able to apply the juridical rule to the concrete case, serenely and without prejudice, which must always be general and abstract. For this reason, those who judge cannot be a colleague and friend of those who accuse. A clear distinction between the two functions, the investigating one and the judging one, is the only guarantee that the judge is truly equidistant. That is, as far away from the accuser as from the accused.
But human fallibility can also come into play in this case: not only those who accuse, but also those who judge, can make mistakes in good faith (in Italy we have a large majority of honest and prepared magistrates), it can be conditioned by a prejudice, or for example from the inability of the accused – even if innocent – to assert his reasons. It must never be forgotten that a decent person suffers the condition of a defendant, and even more so of imprisonment, in a very different way from a habitual offender, who somehow takes it into account.
Fear, shame, suffering can also lead to counterproductive or self-harming behaviors. For this it is necessary that there are several degrees of judgment, so that any errors of a judge can be corrected by another judge of a higher level.
For this same reason, the use of pre-trial detention must be limited to the maximum and should never be admitted if it is for the sole purpose of obtaining a confession.
The presumption of innocence is not an abstract principle, it is a concrete necessity for the proper functioning of a judicial system. It means that no citizen can be found guilty until the final sentence and until that moment he must not lose any of his rights. Much less can he be put in prison, unless there are strong and well-founded reasons to believe that he can flee or commit other serious crimes. But this must be the exception, not the rule.
It also means that it is the prosecution that must prove a citizen’s guilt, it is never the accused person who must prove his innocence. Also because proving it can be extremely difficult for those who do not have the means, the money, the investigative tools available to the prosecution. Those who have read Kafka will remember the bewilderment and helplessness of the individual in the face of the grandeur of the judiciary.
For this reason “in dubio pro reo” is one of the cardinal principles of any judicial system that respects people: it is better to risk acquitting a guilty person than condemning an innocent person. It is a concept at the basis of our idea of a liberal and Christian state: it even has its origins in the Bible (God was willing not to punish Sodom and Gomorrah in order not to condemn ten just).
This also means that a citizen acquitted by a court in a trial level should not be further prosecuted: if a magistrate has found him innocent there is evidently at least a doubt as to his guilt. For this reason we have proposed the inappellability of the acquittal judgments.
To all this is added the fact that in practice the trial is itself a sentence, because it lasts for years, because it casts the shadow of suspicion and social stigma on the person, because it limits many rights and freedoms, even if innocent, because it involves inevitably family, friends, work, every aspect of life. On this I will not add more, because I would enter into the merits of painful personal events of which I do not intend to speak on this occasion.
But it is for this reason that the trials cannot last indefinitely, a person cannot be subjected to this torture for decades. Prescription is a measure of civility.
If then the impartiality of the magistrates is not guaranteed, if the accuser and also the judge is conditioned by prejudices, for example of a political nature, the founding principle of the judicial system is questioned.
And what happened in Italy, where since the 60s-70s the Communist Party carried out a systematic occupation of the judiciary with people of its trust, to be included in the vital ganglia of the judicial system.
The Mani Pulite operation, and many other subsequent events, are the daughters of this story. As Giovanni Falcone understood well 30 years ago, “by confusing politics with criminal justice, Italy, the alleged cradle of law, risks becoming its tomb”.
For us liberals, all this is unacceptable, while guaranteeing is an absolute condition of respect for the value of the person, a distinctive trait of European identity (since Habeas Corpus and before that by the Magna Carta). So being liberal and Christian implies being guarantors, and all together these principles are the expression of the uniqueness of Forza Italia, and the foundation of our project to change Italy, for that liberal revolution in which I never stop believing.