Few know this, given that the parties seem to have little interest in campaigning on the subject, but on Sunday 12 June, the same day in which 978 municipalities will vote in the local elections, we will also have to vote for the referendum on justice.
When do you vote in the referendum on Justice?
The abrogative referendums will be held Sunday June 12. Polling stations will be open from 7 in the morning to 23 in the evening. Instead, the counting will begin on Monday 13, starting at 14 pm. In the Municipalities where the administrative elections will also be voted, priority will have to be given to referendum ballots.
Is there a quorum?
Yes, for referendums to be valid, as provided for by article 75 of the Constitution, the individual referendum questions will be approved if the majority (50%+1) of those entitled to vote votes and if the majority (50%+1) of validly cast votes. To repeal the provision in question, you will have to vote Yes, but if you want to leave everything as it is, you will have to vote No.
To date, the possibility of reaching a quorum seems quite low, mainly for two reasons: the first concerns the complexity of the questions, the second the weak electoral campaign carried out by the parties, both those in favor of the Yes and those against it.
Who promoted the referendums on Justice?
The five questions subject to the referendum were promoted by Lega and the Radical Party. In reality, the two parties had presented a sixth, relating to the civil liability of magistrates, but the Constitutional Court ruled it inadmissible along with two other questions involving cannabis and “consenting homicide”.
What do you vote on?
They will be delivered to us 5 different ballots of five different colors (red, orange, yellow, gray and green), each of which contains a question. Three out of five questions concern the internal functioning of the judiciary, i.e. the election of magistrates to the CSM, the evaluation of the work of the robes and the separation of functions. The other two are connected to the criminal law and concern the abolition of the Severino Law and the limitation of precautionary measures.
We remind you that to repeal the provisions subject to a referendum, you will have to vote Yes, to maintain the provisions subject to a referendum, you will have to vote No.
The first question: the abolition of the Severino law
The first question (red card) provides for the cancellation of the so-called Severino law which in 2012 introduced limits to the candidacy and eligibility of convicted politicians for mafia crimes, terrorism or against the public administration. On the basis of the provisions of the law, the aforementioned politicians are suspended from their offices even in the event of non-definitive convictions, which has done and still angers the mayors who are often subject to the risk of abuse of office.
Do you want legislative decree no. 31 of 2012 December 235 to be repealed (Consolidated text of the provisions on the subject of ineligibility and the prohibition to hold elective and government offices resulting from definitive convictions for crimes committed with negligence, pursuant to article 1, paragraph 63, of the law of 6 November 2012, n.190)?
Question 1 Referendum on Justice
Because yes: the automatism must be eliminated and it must be the judges who establish the disqualification from public offices through an accessory penalty.
Why not: some elements should be changed, such as the suspension for local administrators who have suffered non-definitive sentences, but the Severino Law must remain.
The second question: precautionary measures
The second question (orange card) asks to limit the cases in which precautionary measures can be applied, amending article 274 of the criminal procedure code. The question, in particular, proposes to repeal the last part of the article which establishes the possibility, even for less serious crimes, to motivate preventive custody with the risk of recurrence. However, the precautionary measure would remain for the most serious crimes.
Do you want the decree of the President of the Republic of 22 September 1988, n.447 (Approval of the code of criminal procedure) resulting from the modifications and additions subsequently made, limited to the following part: art.274, paragraph 1, letter c), limited to the words: “or of the same species as that for which one proceeds. If the danger concerns the commission of crimes of the same type as the one for which the proceeding is proceeding, precautionary custody measures are ordered only in the case of crimes for which the penalty of imprisonment of not less than a maximum of four years is envisaged or, in the case of precautionary custody in prison, of crimes for which the penalty is imprisonment of no less than a maximum of five years as well as for the crime of illicit financing of political parties pursuant to art. 7 of the law of 2 May 1974, n. 195 and subsequent amendments.”?
Question 2 Referendum on Justice
Because yes: reduces the number of suspects and accused persons subject to precautionary measures without being tried.
Why not: reduces the possibility of applying precautionary measures in cases where it is essential to act urgently, especially for some types of crime, such as fraud or stalking, where there is a risk of recurrence.
The third question: separation of the functions of magistrates
The third question (yellow card) asks to reduce the possibility for magistrates to move from the function of judge to that of prosecutor and viceversa. To date it can be done four times, which with the Cartabia reform are reduced to two. The request submitted to a referendum is to give the possibility to carry out this step only once.
Do you want them to be repealed: the "Judicial system" approved by royal decree 30 January 1941, n.12, resulting from the modifications and additions subsequently made to it, limited to the following part: art.192, paragraph 6, limited to the words: ", unless the favorable opinion of the Superior Council of the Judiciary exists for this passage"; the law of January 4, 1963, n.1 (Provisions for the increase of the personnel of the Judiciary and for promotions), in the text resulting from the modifications and additions subsequently made to it, limited to the following part: art.18, paragraph 3: " The scrutiny Commission declares, for each judge scrutinized, whether he is suitable for managerial functions, if he is suitable for judging or prosecutorial functions or for both, or rather for one in preference to the other"; Legislative Decree No. 30 of 2006 January 26, containing the «Establishment of the Higher School of Judiciary, as well as provisions on the subject of apprenticeship and training of judicial auditors, professional updating and training of magistrates, pursuant to article 1, paragraph 1, letter b), of law no. 25 of 2005 July 150", in the text resulting from the modifications and additions subsequently made to it, limited to the following part: art.23, paragraph 1, limited to the words: "as well as for the transition from the function judging to the prosecutor and vice versa”; Legislative Decree No. 5 of 2006 April 160, containing the “New regulation of access to the judiciary, as well as in the matter of economic progression and the functions of magistrates, pursuant to article 1, paragraph 1, letter a), of the law 25 of 2005 July 150”, in the text resulting from the amendments and additions subsequently made to it, in particular by article 2, paragraph 4 of law 30 of 2007 July 111 and by article 3-bis, paragraph 4, letter b) of the decree-law of 29 December 2009, n.193, converted, with amendments, into law of 22 February 2010, n.24, limited to the following parts: art.11, paragraph 2, limited to the words: "referring to periods in which the magistrate performed judicial or prosecutorial functions”; art.13, with regard to the heading of the same, limited to the words: "and transition from the judging to the prosecutorial functions and vice versa"; art.13, paragraph 1, limited to the words: "the transition from judging to prosecutorial functions,"; art.13, paragraph 3: “3. The transition from judging functions to prosecutorial functions, and vice versa, is not allowed within the same district, nor within other districts of the same region, nor with reference to the capital of the district of the court of appeal determined pursuant to art. .11 of the code of penal procedure in relation to the district in which the magistrate serves at the time of the change of functions. The transition referred to in this paragraph can be requested by the interested party, no more than four times in the course of his entire career, after having carried out at least five years of continuous service in the function exercised and is arranged following an insolvency procedure, subject to participation in a professional qualification course, and subject to a judgment of suitability for the performance of the various functions, expressed by the Superior Council of the Judiciary with the prior opinion of the judicial council. For this judgment of suitability, the judicial council must acquire the observations of the president of the court of appeal or of the attorney general at the same court depending on whether the magistrate exercises judging or prosecutorial functions. The president of the court of appeal or the attorney general at the same court, in addition to the elements provided by the head of the office, can also acquire the observations of the president of the council of the bar association and must indicate the factual elements on the basis of which have expressed their eligibility assessment. For the transition from the judging functions of legitimacy to the functions requiring legitimacy, and vice versa, the provisions of the second and third periods are applied by replacing the judicial council with the directive council of the Court of Cassation, as well as by replacing the president of the court of appeal and the prosecutor general at the same, respectively, the first president of the Court of Cassation and the attorney general at the same."; art.13, paragraph 4: “4. Without prejudice to all the procedures envisaged by paragraph 3, the sole prohibition of passing from judging functions to prosecutorial functions, and vice versa, within the same district, within other districts of the same region and with reference to the capital of the court district of appeal determined pursuant to article 11 of the code of criminal procedure in relation to the district in which the magistrate serves at the time of the change of functions, it does not apply in the case in which the magistrate who requests the transition to prosecutorial functions has performed exclusively civil or work functions in the last five years or in the event that the magistrate requests the transition from prosecutorial functions to civil or work judgment functions in a judicial office divided into sections, where there are vacancies, in a section which deal exclusively with civil or labor affairs. In the first case, the magistrate cannot be assigned, not even as a substitute, to functions of a civil or mixed nature before the subsequent transfer or change of functions. In the second case, the magistrate cannot be assigned, not even as a substitute, to functions of a penal or mixed nature before the subsequent transfer or change of functions. In all the aforementioned cases, the transfer of functions can only take place in a different district and in a different province from those of origin. The second-degree transfer can only take place in a different district than the one of origin. The assignment to civil judicial functions or of the work of the magistrate who has exercised prosecutorial functions must be expressly indicated in the vacancy published by the Superior Council of the Judiciary and in the related transfer provision."; art.13, paragraph 5: “5. For the transition from judging functions to prosecutorial functions, and vice versa, length of service is assessed together with the specific aptitudes deduced from periodic professional assessments."; art.13, paragraph 6: “6.
Question 3 Referendum on Justice
Because yes: the modification rebalances the judicial system, avoiding mixing between those who judge and those who accuse.
Why not: the separation of functions would risk isolating the prosecutors and would be an obstacle to the career of magistrates, preventing them from carrying out different functions.
The fourth question: the vote of the lay members in the Judicial Councils
The fourth question (gray card) calls for the repeal of the rules concerning the competencies of lay members (jurists, university professors, lawyers) within the Judicial Councils and in particular the prohibition of voting in the judicial councils where currently only the vote of magistrates is allowed. On this point, the Cartabia reform opens only to the vote of the lawyers.
Do you want legislative decree no. 27 of 2006 January 25 to be repealed, containing «Institution of the Governing Council of the Court of Cassation and new regulation of judicial councils, pursuant to art. 1, paragraph 1, letter c) of law no. 25 of 2005 July 150", resulting from the amendments and additions subsequently made, limited to the following parts: art.8, paragraph 1, limited to the words "exclusively" and "relating to the exercise of the powers referred to in Article 7, paragraph 1, letter a)”; art.16, paragraph 1, limited to the words: "exclusively" and "relating to the exercise of the powers referred to in art.15, paragraph 1, letters a), d) and e)"?
Question 4 Referendum on Justice
Because yes: the lay component must not be excluded from the judgment on the professionalism of the magistrates to reduce the rate of self-referentiality in the evaluations.
Why not: the risk is that a judge will have to defer to the judgment of a lawyer who could affect a possible career advancement or speak against him due to professional disputes. For supporters of No, the question should be resolved by "legislative means".
The fifth question: election of candidates for the CSM
The fifth question (green card) asks whether to repeal the obligation to collect a list of at least 25 signatures valid for magistrates who intend to stand as candidates for the superior council of the judiciary (CSM).
Do you want the law of 24 March 1958, n. 195 (Rules on the constitution and functioning of the Superior Council of the Judiciary), in the text resulting from the modifications and additions subsequently made to it, limited to the following part: art. 25, paragraph 3, limited to the words “together with a list of presenting magistrates of not less than twenty-five and not more than fifty. The presenting magistrates cannot present more than one candidacy in each of the colleges referred to in paragraph 2 of art. 23, nor can they apply themselves"?"
Question 5 Referendum on Justice
Because yes: according to the supporters of the Yes, by repealing this provision it will be possible to weaken the internal currents of the judiciary, leaving magistrates more freedom to run as candidates.
Why not: according to the supporters of the No, the Cartabia reform already provides for this modification, therefore submitting it to a referendum makes no sense.
Cartabia reform and referendum on Justice
Three of the five questions subject to a referendum concern issues on which he also intervenes the Cartabia reform, already approved by the House and currently under discussion in the Senate. These are, in particular, the question relating to the separation of the functions of magistrates, that of the right to vote for lawyers in judicial councils and the question relating to the abolition of signatures for the lists of candidates for the CSM.
What happens if the reform is approved before the referendum? The last question, the one on the abolition of the collection of signatures to stand as candidates for the CSM, could fall because with the ok to the reform, the changes on the subject contained therein would enter into force immediately without the need to issue implementing decrees. The other two, on the other hand, would remain valid for the opposite reason (they require implementing decrees), but also because the referendum questions and the new rules are similar but not superimposable.
The position of the parties on the referendum on Justice
- League: the Carroccio is one of the two parties that promoted the referendum, but the electoral campaign seen so far in favor of the Yes appears very "shy".
- Come on Italy: Yes to all five questions that according to Silvio Berlusconi are "fundamental" to reform the judicial system.
- Brothers of Italy: Yes to the three questions concerning the internal legal system, No to those on the Severino law and the limits to pre-trial detention.
- Italy Viva: Yes to all five questions.
Action: Yes to all five questions. - M5S: No to all five questions.
- Democratic Party: freedom of conscience on the vote. Enrico Letta has made it known that he will vote No to all the questions because "they would open up more problems than those they want to solve".
