A step towards establishing legal normality

By Ylli Manjani

The changes to criminal procedure that were presented today are, without doubt, a good step towards establishing a legal, but also cultural, normality in the criminal justice system.

I insist on the word legal culture, because in the name of reform and of the populist thesis of ‘impunity’, interpretations unheard of before — and almost nowhere in the democratic world — of some basic concepts of criminal process are justified day in and day out.

Imprisonment on remand. The manner of taking evidence. The use of digital and private data as evidence. Abusive searches and seizures, oriented by the person and not by the concrete need of the investigation. Even statements taken during the investigation, which are attempted to be given the weight of evidence at trial.

All of these are part of an abusive culture in relation to the law, which, through repetition in practice, risks now being considered normality.

This is perhaps the biggest problem. Because repeated abuse does not become normality just because it has been repeated many times.

The proposed legal changes touch on some of these problems. Should they be treated even better? Undoubtedly. Should they be clearer, more complete and more protected from abusive interpretations? Without question.

But that does not change the fact that we have a good step before us.

And, above all, an important signal that what has become practice is not necessarily what should be legally acceptable.

But this step is not enough.

Still other changes are needed, so many that they perhaps justify a new code of criminal procedure, which should not be simply a repair of the existing code, but a rethinking of the philosophy of the criminal process.

Together with it, a new Criminal Code is also needed.

A code that extinguishes abuses with the definitions of criminal offences and reduces the excessive criminalisation of society.

Because we have reached a point where it must be said clearly that not every violation of the law is a criminal offence.

What constitutes a violation of the law and should be punished administratively must be clearly separated from what constitutes so serious an infringement of the legal order that it must be an object of criminal law.

Penalising every unlawful behaviour does not make society fairer. On the contrary, it makes criminal law an excessive instrument of its control.

There are still many, many other things to be fixed. I am for a new Constitution. For a Republic without special courts.

But let us say that, at least, a myth is being broken.

The myth that laws are untouchable.

We have even reached the legal absurdity where Parliament is seen as though it is not allowed to touch even the laws it has made itself.

The law is not a monument.

The law is an instrument.

It changes when society changes, when practice shows that it has failed, when the Constitutional Court identifies problems, when European standards require corrections and, above all, when the state itself understands that a legal regulation is not producing justice.

Therefore, changing criminal procedure should not be seen as an attack on justice reform.

It should be seen as an attempt to make the reform more legal.

Justice reform cannot be measured only by the number of people arrested, investigated or convicted.

It must also be measured by the way the state treats those it investigates.

Justice is not only the punishment of the guilty. It is also the guarantee that no one is punished without respecting the law, the evidence and due process.

This is the legal normality we need.