Reasons for voting Yes in the upcoming Italian justice referendum explained by the GIP/GUP of Trento
Abstract: Within the framework of the referendum debate on judicial reform, this contribution analyzes the perspective of a judging magistrate, with particular reference to the issues of separation of careers, judicial impartiality, and the reform of the High Council of the Judiciary (CSM). Through an interview with GIP/GUP Marco Tamburrino, the constitutional and ethical dimensions of the reform are examined, challenging the claim that it would entail the subordination of the judiciary to political power. The argument focuses on strengthening judicial impartiality, on the functional distinction between public prosecutor and judge within the accusatorial system, and on the need to reduce the influence of factional dynamics within judicial self-governance. The contribution forms part of a broader path of technical and legal dialogue aimed at providing readers with tools for an informed and conscious understanding of the institutional implications of the reform, beyond ideological schematizations, while affirming the role of jurisdiction as a function exercised with autonomy, independence, and constitutional responsibility.
Keywords: #JusticeReferendum #JudicialReform #Judiciary #JudicialIndependence #JudicialImpartiality #SeparationOfCareers #FairTrial #CSM #JudicialSelfGovernance #JudicialFactions #DisciplinaryResponsibility #GrandJury #PublicEthics #Constitution #RuleOfLaw #PublicTrust #ConstitutionalDemocracy #MassimilianoMancini #MarcoTamburrino #EthicaSocietas #EthicaSocietasRivista #ScientificJournal #SocialSciences #ethicasocietasupli
Marco Tamburrino is Judge for Preliminary Investigations (GIP) and Judge for the Preliminary Hearing (GUP) at the Court of Trento. In this role, he performs a guarantor function within criminal proceedings, assessing the lawfulness of investigative acts, applications for precautionary measures, and access to trial, with particular attention to the principles of judicial impartiality, third-party neutrality, and the protection of fundamental rights.
OTHER CONTRIBUTIONS
THE JUDICIARY BETWEEN INDEPENDENCE AND REFORM: AN INTERVIEW WITH ANNALISA IMPARATO
THE PUBLIC PROSECUTION IN THE JUSTICE REFORM: INTERVIEW WITH GIUSEPPE BELLELLI
In a context where the concrete consequences of voting are rarely explained with clarity, our publication continues a path of technical and legal analysis aimed not at propaganda, but at understanding. A reform of the justice system cannot be treated as a referendum of opinion: it is a decision that alters institutional balances, roles, and responsibilities. Our journal has chosen to give voice to legal practitioners—particularly to the parties involved in criminal proceedings—in order to address the referendum in a technical manner, free from ideological and political positioning, and to avoid reducing the debate to a dogmatic confrontation between “supporters” and “opponents.”
After gathering the views of investigating magistrates—public prosecutors, who hold the power of criminal prosecution and represent the public accusation—this interview focuses on the perspective of a trial judge: a magistrate called upon to decide on the defendant’s responsibility, between the claims of the prosecution and those of the defense, at the very core of the principle of judicial impartiality and third-party neutrality.
The dialogue with GIP/GUP Marco Tamburrino is situated within a critical space where the aim is neither to delegitimize the judiciary nor to defend it in a corporatist manner.
Massimiliano Mancini: “In what way would the separation of careers—which in practice is already limited today—be ethically and constitutionally wrong, and how would it undermine autonomy and independence, considering that judges and public prosecutors are two different professions whose roles should be clearly distinct, just as that of the defense counsel?”
Marco Tamburrino: “As a magistrate, I would like to observe, with regard to the reform, that even if approved by referendum there would be no risk of subjecting the judiciary to political power, as there is no reference to this in the legislative text, contrary to what is claimed by those campaigning for a ‘no’ vote. The reference repeatedly made by Minister Nordio to the usefulness of the reform even for the left was, and likely still is, aimed at fostering judges who are as ‘lay’ as possible—free and serene in the exercise of jurisdiction, without any inclination toward political management of their function, including influences stemming from internal factions. In my view, a judge must answer first and foremost to his or her own conscience in the difficult and fascinating profession we practice, being subject solely and exclusively to the law, which we are sworn to apply in accordance with the Constitution. There can therefore be no other ideological ‘dependencies,’ of whatever kind, that might distort judicial judgment. The judge must be free from any such influence, and the potential approval of the referendum would bring a breath of fresh air and independence to the profession—something I believe would benefit everyone, including citizens. In the history of the Republic over the past thirty years, how many such trials have been conducted only to later significantly deflate? This does not mean that the conduct of white-collar actors should not be scrutinized, but rather that this scrutiny must be carried out within the proper, aforementioned ‘lay’ perspective. That is the distortion the reform seeks to correct, restoring to the judge the absolute impartiality necessary to adjudicate effectively within the full implementation of the adversarial process, thereby fostering a more appropriate culture of jurisdiction. The fact that public prosecutors and judges once shared the same career made sense under the previous procedural code, but much less so under the current one. I also do not believe that the current elected members of the CSM, nor those selected by sortition should the reform pass, ought to bear any ‘political’ responsibility; otherwise, it would imply that they are there not to manage the judiciary and its organization, but to pursue other aims—something I do not believe current legislation provides for. Nor do I think that members of the CSM should have a political or representative role, because that is not why they are there. It is true that sortition does not eliminate factions—of course not—but it may help avoid certain ‘distortions’ we have witnessed in the past and which I do not consider appropriate. Those distortions, in my view, have not enhanced our credibility in the eyes of public opinion. I also do not consider sortition to be an absolute evil, especially if the system has not been managed properly in the past. At present, those who are not affiliated with factions often end up bearing the consequences, which I also find unjust. The system of checks and balances and the role of the CSM as a guarantor body have been very well described by Professor Cassese, within a framework that, in my humble opinion, originally was—and still should be—characterized by a judiciary not oriented toward politics and in clear separation from it, without magistrates sitting on the CSM serving as political representatives against the government. It is precisely the fact that, as some have noted—and with whom I agree—there have at times been oversteps beyond the jurisdictional and organizational functions of the CSM that makes it necessary to keep both the separation of powers and the distinction between public prosecutor and judge absolutely clear.”
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