The recent investigation by the Power Attorney on the Tempa Rossa plant, and the excellent names that would be involved in it, seems to have, once againunleashed the guilty instinct that animates the majority of public opinion, fueled, above all, by the "conceptual diseducation", in particular, accomplished by a certain press or, more generally, by some organs of information that, ignoring (or pretending to ignore), the principle of presumption of not guilty until final judgment of the person subjected to a criminal trial, in force in our legal system, describe, comment and otherwise end up treating the aforementioned (or, in this case, the aforementioned - persons -) as if, on the contrary, it was (guilty) in departure .
It is true that, in some cases, already in the so-called preliminary investigation phase, there may emerge clear elements of rejection towards a person (for example: a telephone interception, or an audio-visual recording), but it is also true that, in others, you end up on trial for different reasons (including pretentious, unfounded or slanderous complaints, or, perhaps, for the "only" fact that, holding top positions, this is sometimes unavoidable: the so-called due act, just because the functional role played by that particular person in a given administrative organization).
In all cases, however, willy-nilly, we should remember the above principle, and the fact that the truth of the trial does not always end up coinciding with the factual truth:'Art. 27 of our Constitutionin fact, in the second paragraph, states that "The defendant is not considered guilty until the final conviction": Yet, almost as if it were a nemesis compared to the past (since with the Clean Hands the rotten was discovered of a certain part of politics and, more generally, of society), today it seems that the" simple "is enough status of being investigated because we can - or worse, we must - consider an already guilty person, with all that can be achieved, for it, on a personal and professional level.
Yet, in our system, three degrees of judgment are foreseen, only at the end of which, generally, a sentence (of acquittal or condemnation) becomes definitive, and therefore it would be - indeed it is - violation of law the practice that, as mentioned, pervades now many media and media, to formulate the prognosis of guilt during degrees (or worse, procedural steps), which could not and should not legitimize such a statement.
Indeed, even recent cases of judicial reporting have shown that a certainty can sometimes not be reached even after "four or five degrees of judgment" (when, that is, when they reach the Supreme Court, the latter decides to defer the proceedings to lower court - Court or Court of Appeal - which can then - as almost always happens - follow a new and further judgment at the Supreme Court).
We could discuss the reasons why this happens, and on possible pathologies, but the substance would remain the same and, indeed, it would support, also on the basis of two other simple findings: in the criminal process, we speak, up to the last, of hypothesis of crime, and it is the body of the prosecution who has to prove the guilt of the suspect / accused (indeed, according to the code, the aforementioned - investigative body - should also look for evidence in favor of it - defendant1 -, but it is also a principle that "sometimes" seems forgotten).
On the other hand, international law itself is clear and peremptorary in reiterating this principle, both in article 6, n. 2 of the European Convention for the Protection of Human Rights and Fundamental Freedoms ( "Every person accused of a crime is presumed innocent until his guilt has been legally established"2), both in the 48 article of the Charter of fundamental rights of the European Union"Every defendant is considered innocent until his guilt has been legally proven. Respect for the rights of defense is guaranteed to every defendant "3: articles, those just reported, which formed the basis of the cd Green Paper on the presumption of innocence, presented in 2006, in its final version, by the Commission of the European Communities, which, at the very beginning of this year, was followed by the European directive on the presumption of innocence and on the right to be present at the trial, approved on January 27th by the European Parliament and the Council of the European Union.
It clearly reiterates the need for Member States to affirm or reinforce the principle of presumption of innocence in their respective systems (which, conceptually and conceptually, is even higher than that of "not guilty") in order to avoid a subject , before being held responsible for the alleged criminal offense, may be held guilty or even treated as such4, reaffirming and reinforcing - among other things - the cognitive function of the criminal process that must be projected to the demonstration, beyond reasonable doubt, of guilt and not innocence.
Si could continue for a long time, adding the malpractice (which often would even turn into a crime), of the cd news leak just in favor of some journalist, as a result of which the unfortunate on duty becomes aware of being investigated even before he reaches the appropriate and ritual news from the organs in charge; or the problem of lengthy processes, so - always the aforementioned unfortunate - is facing the judicial pillory for years and years (many of these, perhaps, passed in the status of suspect), having to play-force wait for the passage of them to obtain, in a paradoxical way compared to what is said in point of law, the affirmation of his innocence.
In short, from everyone - from the actors of the forensic world to the media and the media (for the latter also in compliance with professional regulations and professional ethics: see, lastly, the "Consolidated text of the duties of the journalist"5approved by the National Council of the Order of Journalists the 27 January last) - it would be necessary to reiterate with greater force the constitutional principle of not guilty until the sentence passed in judgment, exiting, for some criminal cases, hypocritical schemes of respectability and hunting witches caused by an ever more marked and dangerous tendency to automatically bring certain categories (especially that of public servants) into the fold of illegality ((in primis) of corruption: it is undeniable that the phenomenon exists, but, in spite of many commonplaces, there are also many honest servants of the State, civilians and military - from the magistrate, to the Superintendency official, to the member of the Police, all 'admiral at the head of an international mission - who, with self-denial and spirit of sacrifice, guarantee the respect of the law in the functions that, depending on their role, are assigned to them) and, it could be said, the presumption of guilt at disregard: also because, many times, this has only served to destroy the lives of people who, therefore, have proved innocent.
By the way: in a few days (17 April), the abrogative referendum foreseen by the 75 article of the Constitution on the duration of drilling at sea will be held, or for the repeal of the 6 article, 17 paragraph, third sentence, of the 3 legislative decree April 2006, n. 152 (Environmental Regulations), and there are already those who cry to the cd "clockwork justice". But this, if you want, is another story.
1 Article 358 cpp: "Il Public minister performs any activity necessary for the purposes indicated in the article 326 and also investigates facts and circumstances in favor of the person under investigation".
2 Article 6 (Right to a trial): "2. Everyone charged with a criminal offense shall be presumed innocent until proven guilty according to law".
3 Article 48 (Presumption of innocence and right of defense): "1. Everyone who has been charged shall be presumed innocent until proven guilty according to law. 2. Who has been charged shall be guaranteed".
4Article 3 (Presumption of Innocence): "Member States shall ensure that suspects and accused persons are recognized as presumed innocent until their guilt has been legally established".
5 Article 8 (Judicial Chronicle and trials on TV): "The journalist: a) always respects the right to presumption of not guilty. In case of acquittal or acquittal, it always gives notice of it with appropriate relief and updates what was published previously, especially as regards online publications; b) observes the utmost caution in spreading names and images of persons indicted for minor offenses or sentenced to very slight penalties, except in cases of particular social relevance; c) avoids, in reporting the content of any procedural or investigative document, to mention persons whose role is not essential for understanding the facts; d) in television broadcasts respects the principle of contradictory thesis, ensuring the presence and equal opportunity in the dialectical confrontation between the subjects who support them - however different from the parts that are confronted in the process - ensuring the principle of good faith and continence in the correct reconstruction of events; e) care that the differences between documentation and representation, between news and comment, between suspect, accused and convicted, between the public prosecutor and judge, between accusation and defense, between the definitive and definitive character of the measures and decisions in the evolution are clear stages and degrees of proceedings and judgments".
