Is there really equal justice under Law?



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Is there really equal justice under law in Italy? It is not a rhetorical question, that is, we are just not stating here that there is someone in that country that is «more equal than others». It might be true or false but it is not that the question: the question is another, that is, whether the Italian Government actually endangers all citizens on an equal footing as a matter of principle.

To answer this question we must first define two things: what law we are talking about and what is the expectation Italian citizens have in this regard.

The law we are talking about is inevitably the applied law, not the written one, that is, not what is published in the Official Journal of Record of the Italian Government but what is actually applied by those who have the duty to enforce it and to punish those who may not respect it, that is, judges.

What we expect is that, on equal terms, those people treat and judge citizens in the same way on the whole national territory. It is important to clarify also what we mean by «on equal terms». When you have to apply a law or to punish someone who has not complied with that rule, you should take into consideration all and only those elements that are relevant to that law. If an element that is not relevant is used to distinguish between two cases, then we have «discrimination». For example, if a man punching a woman is punishable because it is an act of violence, then it must also be considered an act of violence when it is a woman to punch a man. However, if one of them is a professional boxer or a martial arts expert, it is not a discrimination to severely sanction that person since we expect a higher control because of his/her inherent danger.

Another aspect to consider is the one related to the territory. For example, it may happen that waste charges applied in a city might be greater than those applied in another city; obviously the difference should be justified according to reasonable criteria, but it is possible, anyway. However it would not be acceptable that in an Italian region death penalty be permitted for murdering, whereas in the other nineteen regions it is not. In practice, if it is legitimate that there could be local laws taking into account region-specific factor, the possibility for a local authority to legislate must remain confined within parameters related only to local needs, and not become the justification for the application of different fundamental principles in different regions of the Italian territory.

That said, we represent the question: is law equal for everyone in Italy? Unfortunately, in the light of what we said so far, the answer is no, it is not. Let’s see why.

First of all, there are not clear and well defined criteria to be applied in the interpretation of laws in the Italian Jurisprudence. This means that each court may, on equal terms, sentencing in a totally different, sometimes even opposite way. So it is clear that the applied law no longer depends on common evaluation of elements and the objective evidence based on a set of parameters. The end result is strongly bound to a single court, if not to the individual judge. This means that the citizen lacks the «Certainty of Judgment», that is, no one can really be confident to be considered innocent or to be right before judgement, even if he/she is. It may happen, and in fact often it is the case, that a court makes a specific assessment of a given event whereas another passes judgment in the opposite direction.

The consequence is immediate: a physiological distrust in Justice. How can you in fact have to trust in something that is uncertain, that is, that do not even respect a minimum of fixed, clear, well-known, and unanimous consensus criteria? A striking example is represented by the legal separation cases. In fact, although today the law states that, in case of conflict, foster care must be exclusive, there are some courts, like Viterbo’s one, which, proving to be far more mature than others and highly respectful of the principle of both parents, have imposed joint custody even if one of the parents did not agree. Others, however and unfortunately, like the Rome’s one, went to great lengths to deny even the joint exercise of parental authority while recognizing the suitability of both parents. Under these conditions, the lack of confidence is a must. It is basically a real self-delegitimization of Justice.

Another example of why the law is not equal for everyone is that many laws assign to public or private organizations some powers that indirectly lead to a different or discriminating treatment depending on the territory. For example, the rules of acceptance of the Order of Journalists varies from region to region; therefore, a publicist who wishes to become a journalist and would have all the papers in order to do so in a certain region, might be rejected only because in the region where he resides the conditions are different. In practice, in case of two Italian citizens with the same capacity, the same professional background, the same number and quality of publications, but residing in different regions, one has the possibility to obtain the title of journalist, the other does not. In this case, the law provides for different application on the basis of a parameter, the residence, which has nothing to do with the qualities and abilities of the individual practitioner.

In conclusion, so that the law be truly equal for all, clear and public principles and criteria must be established, valid for everybody, which indicate how the law should be applied and especially how it should not be applied. It is not an utopia. Principles of this kind exist in other countries and in some case even in Italy, though they are not always honored. An example is the one for which «an individual is innocent until proven guilty», or the one which determines that people cannot be convicted if «there is a reasonable doubt about their guilt». In civil law it should be applied a sort of «swapping principle», that is, maintaining the conditions, if the parties are exchanged, the judgment should not change. For example, if it is requested that a man who has a job and a salary has to pay a maintenance allowance to the unemployed wife in case of divorce, then, if a wife has a work and a salary and her husband is unemployed, she has to provide him with a similar alimony, obviously assuming the salaries in both cases are similar. This is not true in Italy.

In addition, the Law should never allow to discriminate in any field a person by the mere fact of living in a city rather than another. Italy, united or federated it be, is only one, and each Italian has the right to receive from the State the same treatment. Otherwise there is no longer a Rule of Law, but only one Big Lottery in which one can only hope that the right numbers be extracted.

Comments (3) to «Is there really equal justice under Law?»

  1. Grazie del tuo passaggio, complimenti e consigli. Si hai ragione che devo organizzare in categorie le mie foto, ma il problema è che non so inserire e modificare con codici e linguaggio HTLM alcune cose che sinceramente a me non piaciono del mio blog. Ogni tanto mi aiuta un cara amica blogger.
    Concludo dicendo che la legge non è uguale per tutti, perchè vengono applicate a proprio piacimento, e come dire “uso improprio di armi”, sbaglio?
    Buon fine settimana. 🙂 Daniele

  2. Caro De Judicibus,
    devo ammettere che non ho ancora avuto il tempo di leggere i tuoi scritti (ma mi riprometto di sopperire prestoa questa mancanza), e che la materia “giustizia” non mi appassiona granchè. Però ho visto che le tematiche che affronti sono parecchio variegate, perciò non mancherò di tornare da queste parti.
    Saluti,
    Strepto.

  3. Beh, sul mio blog non si parla solo di giustizia, anzi, spero in futuro di inserire sempre più articoli anche in rubriche come quella sull’Arte che per ora non ho avuto tempo di sviluppare.

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