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| front page of The Independent of April 30, 1993 |
During the Council of Ministers No. 127 of 28 February 2011 the Government approved at 'consensus the report of the Minister of Justice, Angelino Alfano, the constitutional reform of justice, defined as an extraordinary CdM but presented in the following general guidelines.
Among the proposals being examined by the Executive is strongly back in vogue, driven by recent events involving judicial record of the Prime Minister Silvio Berlusconi, the theme immunity, and in particular the return of parliamentary form provided in the Constitution before 1993.
Article 68 of the Charter, in fact, was reformed by the Constitutional Act 3 of 29 October 1993, following the real avutesi popular uprisings in the first part of that year, after Parliament had attempted to block Craxi investigations by the judiciary.
In a game of historical courses and resorts, many protagonists of contemporary politics were there during those months, by popular acclaim to approve a constitutional reform in record time. There was Giorgio Napolitano, Speaker of the House, to mark the work, there was Pier Ferdinando Casini as speaker of the reform, there were D'Alema, Fini, Veltroni, and there were also members of the governing majority as Maroni, Bossi, La Russa, Gasparri. Bulgarian
With majorities in the House and Senate passed the law sent to the test of double reading, Article 68 of the Constitution was changed and the immunity was not the same.
The concept of immunity is present in the legal systems of almost all modern democracies, and attempts to reconcile the mandatory prosecution, the founding pillar of the fundamental principle of equality before the law, the independence of the political and judicial e la tutela della libertà di espressione dei rappresentanti del popolo.
Tra le varie tipologie di immunità, quella parlamentare si contraddistingueva per essere assoluta, ovvero indipendente dal reato commesso; extrafunzionale, riguardando solo la durata della carica; e processuale, in quanto non si nega lo stato di reato dell'eventuale crimine commesso dal parlamentare, ma solo la possibilità da parte dello Stato di esercitare il proprio diritto di coercizione.
L'articolo 68 della Costituzione, così come concepito dai padri costituenti, recitava infatti:
I membri del Parlamento non possono essere perseguiti per le opinioni espresse e i voti dati nell'esercizio delle loro funzioni.
Without authorization from the respective House, any member of Parliament may be prosecuted, nor may they be arrested or otherwise deprived of liberty or subjected to a personal search or home, unless they are caught in the act of committing a crime for which the warrant is required or the order of capture. Equal
authorization is required to take under arrest or retain in custody a member of Parliament in pursuance of a sentence also irrevocable.
The first paragraph, which itself seems to already be a form of total immunity, though limited parliamentary action, would actually have a major role protection of the elect, a Member can not be affected by its decision of a criminal in the House would vote parliamentary What, for example, an international mission in war-torn areas of the world if he knew of being accused of murder by relatives of possible victims ? This form of immunity, although of course subject to degeneration (if raise the legal limits of toxic increases the occurrence of cancer, the lawmaker is not liable for its decision), is necessary to ensure that representatives State can make the best decisions without worrying about the effects on a personal level. This immunity is called "absolute immunity" e ricopre l'intera attività parlamentare anche dopo la cessazione dalla carica.
Il secondo ed il terzo comma si occupano invece dell'immunità parlamentare vera e propria, quella processuale. Salvo il caso della flagranza di reato, un parlamentare non poteva essere imputato, perquisito o arrestato a meno di un'autorizzazione votata dalla Camera di appartenenza.
L'autorizzazione a procedere di fatto però consentiva un'estensione arbitraria del diritto all'insindacabilità, dal momento che il Parlamento negli anni arrivò ad abusare di questa opportunità, rifiutando sistematicamente le autorizzazioni a procedere tacciandole come interferenze del potere giudiziario in quello legislativo.
Questo fino alla popular uprising following the burst of the "Clean Hands and the enormity of the rejection by the House to the needs of the judiciary in the case of Craxi.
The current version of Article 68 of the Constitution, valid from 1993, says:
Members of Parliament can not be held accountable for the opinions expressed or votes cast in the exercise of their functions.
Without authorization from the respective House, any member of Parliament shall be subject to personal or home search, nor can they be arrested or otherwise deprived of liberty or kept in detention, except in the execution of a final conviction, or if caught in the act of committing a crime for which there is the arrest mandatory.
same authorization is required before members of Parliament to intercept, in any form of conversations or communications, and seizure of correspondence.
As can be seen in the first paragraph, the right all'insindacabilità has even been strengthened by the change: the shift from "can not be prosecuted" to "can not be held accountable" in fact generalizes and extends a guarantee of enjoyed Members of Parliament, where the first statement could be interpreted as a restriction on a purely criminal law area.
The real change Article can be found, however, the second and third paragraphs. The immunity from prosecution, as you can see, has not been taken, but watered down. Disappears, the words "no member of Parliament may be prosecuted," and now members of parliament can be brought to trial without leave of the House membership, but such authorizations remain viable for many ancillary still collecting evidence as a search or interceptions.
In fact, it is important to note that ordinary law through some parts of the immunity have been gradually reconstructed over time, perhaps the most significant example is the decree Law 535 8 September 1994 - later revoked - took off the court, to put it in the hands of the Chambers, the power to determine whether such facts would fall under the umbrella dell'insindacabilità, leaving only the judiciary the opportunity to raise a Look to the conflict of duties.
Equally important, in February 1996 was the extension of the necessity of agreement for the use of wiretaps in the case of indirect or words of parliamentarians emerged by chance during inercettazioni other users.
Despite this, the main change in Article 68 of the Constitution holds: today is a parliamentary process in a similar to that of any other citizen.
It is precisely this point that the Government wants to change, to return to the past. To prevent an elected official, if backed by a solid majority in the House, can be prosecuted for the duration of his political life.
A throwback incomprehensible in terms of the need for legal reform useless in a country where the priority, it being about justice, but should be the duration of the processes together with the certainty of the sentence and the application of the sentence.
But more needs and priorities for Italy have become coincident with those of the citizen Silvio Berlusconi, facing deadlines and il premier nel 2011 (processi Mills, Mediatrade e Rubygate) lasciano pochi dubbi su quale possa essere il reale fuoco che anima la furia riformatrice del Governo.
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