Michela Evangelisti
Il Giornale, 23 February 2011
Measures that should not be ordinary, but applied only under conditions of absolute necessity. On the controversial issue of custody Carefully word Gaetano Pecorella. It starts from disqualification measures, such as the prohibition to perform certain activities, to be in a certain place or to approach some people to get to the arrest and imprisonment. The custodial measures, the subject of controversy and reflection never dormant, have as a prerequisite for serious indications of guilt. But the requirements can not stop here, because, as explained by the lawyer Gaetano Pecorella, "is a measure that applies despite the presumption of innocence, must obey procedural reasons, that is used to prevent tampering with evidence, escape and, finally, the re-offending. " Point, the latter a contradiction in terms and in direct conflict with the principle of presumption of innocence. "While it is stated that the crime is established, to say that we apply a precautionary measure to prevent re-offending means assumed that the crime was already established - explains the lawyer. Among other things, is the most common reason for the application of protective standards, no pollution of the reasons why the test for a specified term in time, given that the test is intended to be revealed, and with regard to the danger of flight as often are sufficient measures such as house arrest or control instruments remotely. " Therefore considers that the provision relating to the keeping supervision is valid and applicable with effect or should be reconsidered? "I think the whole system should be radically changed. The prosecutor gathers evidence and makes a request for precautionary measure, often very large and contains numerous interceptions and evidence. The investigating judge is in the difficult objective of being able to assess and investigate all of these elements, having tight deadlines, and ends up relying mostly on the assessments of the public prosecutor, to the point that it is not uncommon to find arrest warrants that follow to the letter the request of the prosecutor. The court of review, upon which pour an avalanche of statements and actions, must move in a very short time, and ends in turn to align themselves with the decisions of the investigating judge. Unfortunately, in Italy, as noted at the time Vassalli, the day the sentence is often the day of release, because it was obvious all the punishment during a precautionary measure. " What could be the radical change? "It could take as an example the French system, the so-called adversarial advance. Apply a restrictive measure provisionally, that does not or should not lead to imprisonment, but in special institutions, then it creates a real heard before a judge or a court, after which the court decides whether to apply a measure supervision of a permanent nature. The paradox of our system is that Article 111 provides that there should be, before a person is incarcerated to serve his sentence, an adversarial in equal shares, but at least half of the Italian prisoners are awaiting trial without having had a real contradiction, either before the investigating judge or to court review. Everything is based solely on the evidence that was gathered by the prosecutor, the so-called right of habeas corpus by us does not exist. " The pre-trial detention is a measure that should be ordered only in exceptional cases for very short periods, while in Italy it is an abnormal use. What are the causes of this misuse of the law? The separation of the careers of prosecutors and judges could be a solution to arrive at the correct application of the law on custody? "The separation of careers is changing the face of the overall criminal justice system. Pm The time will eventually be seen by the court as a part, just as the defender. Today is not so much that they say that the court is provided with the prosecution. Why do you use such a broad pre-trial detention? Not by chance has been called a sweet torture, because it is a very strong instrument of psychological pressure. In prison they weaken the will of defense: get out of jail while the accused, for fear of being subject to violence or submission, eventually confess or cooperate. The custody some time is also used successfully to preserve evidence or prevent the danger of escape, but especially for certain crimes where there is no violence or danger of flight, such as corruption, you may choose other paths. " A change of 2009 had again expanded to a large number of crimes, including sexual ones, the exceptional rule that, where there are serious indications of guilt, the judiciary must still apply the pre-trial detention. The Constitutional Court then deleted the rule requiring the prosecutor to apply on remand in prison for those suspected of crimes of exploitation of child prostitution. The decision of the visit has provoked controversy in the world of associations, which have accused the court of justification. What do you think? "The Constitutional Court has no grounds to justify be-shareholder: curtains always, despite its errors, to enforce the Constitution, which says clearly that the protective order must be exceptional, not ordinary. The court is correct in saying that, beyond reasons of "propaganda" or electoral support, the measure should be applied when there is a case for its necessity. " For decades our policy that responds to the emergency prisons or by acts of clemency or prison construction plans, but the problem is now resolved. "Our prison system è sicuramente medioevale: la pena dovrebbe tendere alla rieducazione del condannato, mentre nelle nostre carceri non è la norma che si lavori, che si studi, che si faccia sport. La reclusione dovrebbe essere un tratto della vita della persona perché poi torni nel mondo civile migliore e non peggiore; un sistema carcerario come il nostro diventa invece un luogo di violenza e di abbandono o addirittura una scuola di delinquenza, nella quale si stabiliscono contatti tra persone che hanno commesso reati modesti e persone di spessore criminale”. Quali strade a suo parere sarebbero percorribili? “Innanzitutto il carcere dovrebbe essere pensato come estrema ratio, da applicare solo quando non c’è nessun altro mezzo più efficace. In Secondly, we should rethink the whole prison system separately, as in hell, the circles: semi-open or open the prison for minor offenses to prison more restrictive. It would also be very useful to introduce a measure that works well in the Anglo-Saxon countries, namely the security: if you do pay a certain sum is also relevant, depending on economic conditions, and you lose the amount that escaped. A measure is also convenient to pay your legal fees and compensate the victims at the end of the process. You might consider alternative sentences, such as the compulsory work in assisting the elderly or the sick, and increased measures of assets, especially for certain economic crimes. Finally Prison should be conceived as a place of education and not cut the family and social ties: an important part of sexuality that is also in prison, a right that I should at least be guaranteed to persons awaiting trial. "
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