The principle of parity in criminal proceedings
I attended the first trial hearing of the so-called Regeni case and I reflected on the university manuals that taught me how criminal proceedings should be fair and, to be so, the parity of procedural prerogatives between Defense and Prosecution must be guaranteed before a Third and impartial Judge. The so-called idealistic triangle on which Italian Criminal Justice should be based.
A threat to procedural parity
Well, this principle seemed to me to be at risk from the very recent decision of the Constitutional Court to start the trial, in the Regeni case, from the moment the four defendants never received the notification initiating the criminal proceedings against them, nor have they ever faced charges. And so, I seem to question the main defensive guarantees of every defendant.
The issue of substantive parity
Prosecution and Defense in today’s legal everyday life do not seem to be on equal footing, which seems now exclusively a textbook phrase, because in the Regeni Process, as well as in many other processes that are daily celebrated in various National Courts, if the defendants are acquitted, the Prosecutor can appeal; at the same time, if they are convicted, Court-appointed lawyers often cannot appeal the first-instance sentence because they cannot contact their clients.
So, I wonder if there really still exists materially a substantive equality of rights and procedural prerogatives between those who defend and those who accuse, but above all if one can still have the certainty and satisfaction of having conducted a fair trial or, if instead, Article 111 of the Constitution represents a norm exclusively concerning a formal constitutional aspect but, now, materially unenforced.
For these reasons, the so-called Regeni process deserves constant monitoring by the entire legal profession because we risk witnessing an attack (more or less voluntary and aware) on the achievements of our legal civilization, because the legal principles established in this trial will not be exceptional, but could also apply to other processes that we celebrate daily throughout Italy.
A hundred years after its publication, Kafka’s Trial seemed to me more current than the well-known and common university manual of criminal procedure by Professor Tonini.
