What if the Supreme Court of Cassation is turned into a simplified third degree of merit?

corte di cassazione - cilp italia

The posed question would appear to be doomed to a completely negative assessment without any alternative hypotheses.

In fact, it had to be pointed out that already many years ago this hypothesis had been raised by eminent jurists, obviously with diametrical opposing determinations, but, in any case, nothing more was known.

However, the hypothesis should be updated.

What can a simplified third degree of merit mean?

The answer is, so to speak, in the very concept of simplification.

A logical brief remarque on what happens in our times secundum legem.

The Supreme Court decides from the point of view of the legitimacy with the most disparate pronouncements, which acceptance of the resource with reference to other Court of Appeal, partial acceptance with reference, acceptance without reference, rejection of the appeal. This is not acceptable.

Not only that, but the same Court of Cassation is also called upon to decide on the appeal of the pre-trial detention order, on those pronounced by the Tribunals of the Review and so on.

Of course, all of the above results in an enormous amount of activity for the Court itself, with an inevitable bottleneck that hinders the path of justice, understood in the broadest sense.

Establishing a third degree of judgment on the substance, certainly and appropriately simplifying it, as indicated below, the procedures brought to its knowledge could be speeded up, but not by centralizing them all with a single Court, but by decentralizing them appropriately as follows.

To set up a section of the Supreme Court, for example, in every regional capital, with a formation of three judges, which can be replaced by appropriate rotations.

The third degree of merit could foresee the sole discussion of the reasons, with the intervention of the Attorney General, of course excluding the same and its substitutes from those of the Court of Appeal located in the capital where the process of second instance was celebrated.

But in order to optimize time and function, the Attorney General of another district and/or his substitute could represent the procedural part of the prosecution, such as in Lombardy Brescia on Milan and vice versa, with fixed shifts, without shifting of files, which always remain within the section of the third grade, which can be consulted by the person or woman who will represent the judicial authority.

The simplified third degree of merit would allow a further and definitive decision on the substance, except later hypothetical revisions, with greater assurance for the applicant defendant, as well as for the civil party, the possible civil liability, as well as three levels of judgment dealt with the merits and more Judges were able to examine the procedural material and form their conviction.

This would make it possible to shorten the waiting time for a final decision and to have greater guarantees for the parties involved in the proceedings, since it is precisely on the merits that the quid pluris which will determine the final decision can be seized.

Referral back to another judge means, at this stage, a greater waste of time, a further obstruction for the current judge of merit, a further sentence which can well be appealed again in the Court of Cassation, with an inevitable dilation that certainly does not benefit justice in general.

One could argue that “”the so-called evils of Italian justice”” would not be automatically solved “”em>sic et simpliciter/em>””, but a sort of optimization may occur, with the discreet simplification.

Moreover, in the area of administrative justice, the Council of State is certainly a deciding body in terms of both legitimacy and substance, the consequence that the appeal of a judgment of the Regional Administrative Court obviously leaves open the power of decision also, but perhaps above all, in the substance.

It is also observed.

It is well known that in the current legislation there is the only case of appeal also in the merit ahead the Supreme Court of Cassation according to the law n.69 of 22 April 2005 on the subject of MAE-European Arrest Warrant.

Therefore, the hypothesis mentioned below should not be so shocking, even if for fair exposition, that both the administrative procedure and the special procedure of the EAW foresee two degrees of judgment, thus resulting in a second degree of merit even ahead of the Council of State, such as that conferring the execution of an EAW which provides precisely a first instance before the Court of Appeal in whose district the person drawn from the request of another State of the European Community is resident and a second degree before the Court of Court of Cassation, with ample power  -rectius right- to pursue the appeal also on the substance.

Certainly one could argue that in administrative justice, as in the case of the European Arrest Warrant procedure, since there are only two degrees of judgment, this situation has led the legislator to decide how the second grade should also be substantive, while in the criminal and civil proceedings, there is a double degree of jurisdiction on the substance, It would seem entirely logical and sufficient that a substantial third degree is only of legitimacy.

But to this logical observation one can well reply as a possible and desirable third degree of merit provide greater guarantees, especially in our criminal system, that sees among other things the not simple problem of the prescription to be the subject of a heated discussion, especially since the possible freezing of the same, thus dilating “”“”em>ultra dimidium/em>”””- the time taken to await a final decision.

Surely the subject was not simple, given for example the possibility of a renewal of the debate, maybe only partial, not having heard the Judge of first instance in the event of hearing a witness ex art.507 c.p.p. or to order an expert opinion ex art.508 c.p.p. and likewise the Court of Appeal or the Court of First Instance in second instance with respect to gdp, but this would allow the Third Court to admit instead the application invoked by the defense, which could well ex adversely confer a benefit on its client.

The above would allow a more rapid trial, especially for those who are in detention, but also for those who find themselves in a state of freedom with a pending load -sine die-e inhibiting, for example, access to a public administration or work with private characteristics.

A pending shipment is certainly not a positive credential.

This is the starting point which can certainly be discussed, considering all aspects both favorable and possibly unfavorable, but I believe that a third degree of merit, with the necessary simplifications, does not constitute a very difficult implementation.

The debate is open on the vexed question.

Avv.Carlo Sergio Soldani

0

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