The approaching referendum vote on the constitutional reform has reopened the debate on the freedom of expression of the magistrate: what are the public spaces within which a judge can intervene to express his opinion? The individual magistrate must be recognized the same rights attributed to any citizen - or rather he can exercise these rights with the same extent recognized to those who do not exercise his profession - or the institutional role he plays obliges him to a particular confidentiality and an attitude of self-restraint that does not belong instead to the other members of the community?
Put like this, the question seems really badly formulated and the answer almost obligatory. The possibility of freely expressing one's thoughts represents a fundamental right for the individual without forgetting that democracy itself thrives on the dialectical confrontation between the different opinions held by citizens; consequently, it seems incongruous and paradoxical to maintain that the magistrate - often, moreover, the bearer of skills whose diffusion can certainly contribute to the improvement of the cultural and technical level of the debate and whose non-circulation in the public would therefore represent a renunciation that is difficult to understand - , for the mere fact of exercising a profession that is characterized by the impartiality and impartiality of those who carry it out, must remain silent and give up clearly formulating their opinion on topics that they consider to be of interest to them and which affect their participation in the life of the community which it belongs.
Of course, est modus in rebus: the right to free expression of one's thoughts is not without limits - as our Constitutional Court has been teaching for some time, which however, and not surprisingly, is very prudent in limiting the exercise of this faculty, aware of the fact that putting too many stakes on the law in question can lead to an unacceptable detriment of the public debate itself - and, like what is true for everyone, the magistrate can in no way abuse it.
Not only that: the procedural system, both in the civil and criminal spheres, knows and foresees instruments (such as those of recusal or, seen from the magistrate's point of view, abstention) through which the private party who deems that the judge, due to the considerations and personal opinions that he has formulated in other areas, may be the bearer of prejudices against him or with reference to the question to be decided in the courtrooms, he can request the attribution of the process to another subject, so that even through these institutes it is possible to reconcile the need to preserve the judge's position of impartiality with his right to freely express his convictions.
In view of these considerations, it is therefore almost surprising that the magistrate's right to express himself is contested by many quarters and indeed, in the current historical contingency, the doubts on the possibility of the magistrate to formulate his own opinions seem even more unjustified: the in fact, today's debate originated from some "extraction" of members of the judicial order on the proposal for constitutional reform or on a topic of general interest and in order to which, on the one hand, no citizen should be precluded from intervening and on the other understands in which terms the magistrate who formulates his own opinion on the point would see his due impartiality compromised.
In some respects, these statements - in the light of the observations we have made previously - seem indisputable to us, but at the same time we cannot help but underline how the intervention of a magistrate in a public debate risks polluting its content if the intervener does not specify in what capacity and in what capacity he formulates his opinion.
Let's explain it better. In any situation, a member of the judiciary can intervene in a dual capacity, either as a citizen or as a magistrate. It is evident, in fact, that where - for example - the reform of the crime of false accounting is being discussed, the public prosecutor who wrote an article in a newspaper would indeed speak in a personal capacity and certainly could not be considered an expression of the judiciary, but at the same time at the same time, his opinion will undoubtedly assume a very particular weight, due to his skills, his experience, his personal history. In such cases, in summary, the magistrate, by intervening, places the weight of his authority on the public debate, also influencing its development and content: in this circumstance, however, there is nothing censurable, precisely because from the very inherence of the issues on which the exercise of jurisdiction and the work of the judiciary discuss it logically and naturally derive that it is absolutely legitimate that those who know those topics best and have made their profession express themselves on the regulatory solutions to be taken.
In other cases and with reference to other issues, however, the magistrate is not the bearer of any particular knowledge, of any exclusive competence, so that in such cases the opinion of those who exercise the profession of public prosecutor or family judge or judge bankruptcy etc. it should contribute to the development of the comparison on a par with the considerations formulated by any other citizen. Think - to refer to another referendum - of the debate on drilling at sea, a topic in relation to which it would be paroxysmal to argue that a magistrate, as tomorrow could be called to rule on a matter that originates from the presence of the territorial waters of these oil structures , cannot express himself in favor or against their maintenance: in such cases, the magistrate must be able to express himself freely like every citizen but with shrewdness - shrewdness the observance of which in truth is not the responsibility only of the judge but of the whole community, and especially to the mass media that report his opinion - not to attribute to his thought an authority, a significance that derives from the profession he carries out, from the risks he has taken and from the sacrifices he has made in the course of his professional activity , from the skills it has acquired, profiles that in the present case - precisely because of the contentual distance that exists between the object of the debate and the exercise of the judicial profession - have no significance.
Here, the risk of an intervention by the individual magistrate in the confrontation on the constitutional reform - which does not touch, if not in a decidedly marginal and only hypothetical way, the judiciary - is precisely that these - even without meaning to - come to "pollute" the debate with irrelevant considerations, that is, he ends up tipping the scales in favor of the theses supported by him not because of the arguments and reasons he sets out, but in consideration of the esteem and authority that (rightly) surround his person - profiles undoubtedly appreciable, but which, as mentioned, do not pertain to the issue under discussion.
It will be said: following this proposition to speak or not to speak for the judge then becomes a question of opportunity and as such the judgment that can be formulated on the conduct of magistrates who choose to express their opinion is highly questionable.
Of course, in the present case, with reference to the forthcoming constitutional reform, the behavior of those who exercise judicial functions must be governed only by considerations of mere opportunity and the criticisms (if not even the objections) that have been leveled against those among them they have chosen to pronounce themselves. At the same time, however, in this judgment of expediency, the profiles that come to be interesting are not trivial: after all, one of the reproaches that - rightly - is formulated against Prime Minister Renzi is that he has improperly transformed the debate on the contents of the reform into a plebiscite on one's person; it would be good, then, that at least the judiciary knew, as far as it is responsible, to maintain the discussion in the areas that are proper to it, without inappropriate conditioning of public opinion.
