Moreno Bernasconi: "The temptation of summary justice"

Modern law was born to curb arbitrariness, summary convictions without trial, and put an end to the primitive law of vengeance. When Cesare Beccaria stated "no punishment without law," he was trying to protect the alleged perpetrator from lynching or inhumane imprisonment. Today, criminal law, which for a couple of centuries had placed the perpetrator at the center, has largely embraced a different approach, one that places the victim at the center. Progress? Certainly, if increased attention to the suffering of victims helps prevent cynical justice and abuses of power. However, only a rigorous criminal investigation and a trial that weighs the facts and reaches a fair verdict can avoid the temptation of summary justice, which is once again making its way into today's society.

A temptation fueled today by global media coverage and social media, which tend to distort facts, fuel personal and group hatred and vendettas, and set themselves up as popular tribunals. And cynically exploit the suffering and vulnerability of victims... to gain an audienceThe principle underlying the media coverage of conflicts is also the "presumption of guilt," as opposed to the "presumption of innocence" until a final conviction, which is a cornerstone of criminal law. The distortions of facts and the exploitation of emotions inherent in the media coverage of conflicts represent a powerful form of pressure on the justice system, which is called upon to resolve conflicts and redress grievances fairly and impartially, guaranteeing the fundamental rights of both victims and defendants/convicts.

In recent times (particularly in highly publicized cases and circumstances), pressure exerted by victims before and during trials has grown exponentially, demanding exemplary punishments that often go beyond simple individual compensation but respond to feelings of revenge, perhaps understandable but not objectively applicable to justice. Sometimes, even demands pertaining to the civil code are transformed into requests for severe criminal penalties. Under public pressure, legislators in many countries have enacted very severe laws depriving people of liberty, even in areas where it should be "sub judiceThe case of the tightening of the traffic code is emblematic.

If a severe penalty appears justified against a driver who causes a serious accident, can simply exceeding the speed limit be considered a serious criminal offense (which can even lead to deprivation of liberty) even without causing damage to property or people? The suspicion arises that in some cases, harsher penalties and the so-called zero tolerance respond to propagandistic or populist motives on the part of the Legislature or a Government faced with a growing demand for repression by the people.

Gender-based abuse is another emblematic issue, where those who claim to be victims often demand zero tolerance and severe justice even before the legal process has run its course. This is a legitimate request where there is proven violence, but in some cases it leads to requests for "exemplary," summary, or "analogous" sanctions.", even just due to past socio-cultural discrimination. The risk – for example in the case of part of the feminism arising from Mee-too – is to consider men as a category of people guilty regardless of their status as unwilling vehicles of the so-called patriarchy, and/or to consequently demand a tightening of legal norms, under pressure from political demonstrations: condemnations even for harmless, non-harmful behaviors, based solely on the subjective perception of those who feel they are victims. I am thinking, for example, of severe sentences for "sexual abuse" involving involuntary or harmless contact, or, in the absence of explicitly stated consent, engaging in amorous displays.

In these and other cases, simply giving in to popular demands for repression from those who feel victimized is not the solution. This is also because the demands are often contradictory.

Let's take the case of laws regarding "illegal" immigration. Here, two different popular demands collide. The first demands that the legislature enact (and the state enforce) more severe laws regarding the incarceration and deportation of those who are illegal and/or commit crimes, based on the fact that a segment of the population feels threatened in their safety (or in their jobs). The second, by contrast, demands treatment that respects fundamental rights (based on rulings or the case law of international legal bodies such as the European Court of Human Rights) regarding, for example, reception, family reunification, education, and integration.

Those who advocate (and demonstrate) for acceptance often do so by emphasizing that those fleeing poor countries are (or have been) themselves victims (or their parents) of unfair exploitation by the countries to which they emigrate illegally. Similarly, empathy for the victims inspires movements in defense of minorities or social groups with a history of oppression, towards whom legislators or judges are therefore asked to show understanding. Similar to this situation is the case of violent demonstrations or acts of vandalism against property perpetrated by climate activists (Extinction rebellion e.g.), or "anti-speciesists" and "anti-colonialists." They justify violence because they consider themselves victims of past and/or current (or future) behaviors harmful to colonized countries, to an oppressed race or gender, or even to nature or animals (in this case, the victims to be defended are the animals themselves...). If we accept that the law must conform to popular pressure and, above all, to the views of the victims (or those who simply consider or declare themselves as such), it is useful to keep in mind that on all of the above-mentioned points and more, our societies today appear profoundly divided. Legislators and judges of a given state therefore find themselves in the unpleasant situation of being called upon to take sides for different groups of victims (or so-called victims), who are in conflict with each other.

One of the founding principles of the modern state is paying the price: the balance of law and the guarantees it is called upon to provide to all individual citizens and to the community as a whole. a fortiori in a period like ours of growing conflict at all levels.