Italy: Judi­cial Reform in the midst of crisis

The Italian judicial system has been traditionally characterized by strong safeguards for judicial independence, both for judges and prosecutors, and by structural weaknesses, especially in terms of the length of proceedings.

Recently a new law, adopted in June 2022, concerns the aspects of independence in the judicial system. The reform aims at regulating the organization of the judicial system, such as changing roles between judges and prosecutors, performance evaluation and the composition of the Supreme Judicial Council. The law is part of an ambitious reform package that should make the Italian judiciary more efficient.  

Judicial independence a stronghold of Italian constitution

Judicial independence is one of the main strongholds of the constitution, particularly in reaction to Italy’s former fascist regime. Art. 104, 108 Const. lays out judges as subject only to law (provided the law is constitutional), a bureaucratic recruitment of judges and prosecutors (together forming the category of magistrates), and a self-governing body for judges and prosecutors (Supreme Judicial Council, CSM) with strong powers and significant independence. With 2/3 of its members elected among judges and prosecutors, 1/3 by Parliament with qualified majority.

Readers might remember that it was the judiciary that unveiled the mass corruption in politics 1992 in the so-called "clean hands" scandal that produced an earthquake in Italian political life and destabilized the political system. All existing political parties were dissolved including those not affected by corruption cases, such as the communist party and the neofascist “social movement,” due to the geopolitical changes. Since then, political parties have been extremely weak and volatile, mostly personalized, with very little membership, and have had a very negative image in public opinion, as opposed to the judiciary which scores much higher. According to the most recent polls by the national statistical institute from May 2022, parties are at the bottom of the trust index with less than 20 percent, while about 50 percent trust the judiciary. This trend is likely to be confirmed by the most recent political crisis and the end of the government led by Mario Draghi.

Judicial reforms in the past 30 years

For the past 30 years, there have been several attempts to reform the judiciary. Most common argument for reforms include its inefficiency and length of proceedings. About 1/3 of the persons in Italian prisons are in pre-trial custody, and the country pays over 30 million euros per year for unjust detention after losing cases in the European Court of Human Rights (ECHR); over 60 percent of the Italian cases in Strasbourg concern article 6 of the European Convention on Human Rights, the right to a fair hearing. In 1999 there was a wide-ranging reform of Art. 111 Const. on the issue of fair trial.

There also have been open accusations of politicization of the judiciary, especially under the governments led by Silvio Berlusconi, who oversaw several changes to the judicial system. Many such changes helped save Berlusconi himself, such as reducing the possibilities of appealing a ruling, allowing the indicted not to participate in a trial if a "legitimate reason" could be invoked, limiting the statute of limitations, and many more, several of which were ruled unconstitutional by the constitutional court.

For sure corporatism of the judiciary (as of many other professional categories in Italy) is an issue. Several referendums have also been called on judicial issues, from 1987 (when people overwhelmingly voted to introduce direct civil liability for judges who rendered their judgments in bad faith but that has never been implemented) until the present. As recently as 12 June 2022, Italy held 5 referendums on several significant issues, including pre-trial detention, separation of careers between judges and prosecutors, removal from office of sentenced politicians, and elections to the Supreme Judicial Council, but they by large failed the required quorum and produced no results.

The most recent reforms: Criminal law, civil procedure, judicial system

Reform of the judiciary has thus always been on the political agenda for the past 30 years. However, a significant acceleration came in with the approval of the Italian Recovery and Resilience Plan (RRP) adopted within the framework of the Next Generation EU 2021. A structural reform of the judicial system is one of the pillars of the Italian RRP, and funds are conditional upon the reform. This gave a political impetus that was never given before, when political camps strongly argued on this issue, up to the point that parties are often labelled as "pro-judges" (mostly on the left) and "anti-judges" (mostly on the right). The close-to-all-party government led by Mario Draghi, in charge of the RRP, successfully passed a four-pronged reform of the judiciary that fulfils the obligations under the Next Generation EU conditionality. The reform package is named after the Minister of Justice Marta Cartabia, a prominent constitutional law professor and former president of the Constitutional Court.

The first legislative provision was a law decree, i.e. an act with legislative force that the government can adopt "in extraordinary cases of urgency and necessity" (Art. 77 Const.) and must be ratified by Parliament within two months, that explicitly linked the reform with the RRP. The decree, adopted in June and ratified in August 2021, had the official name "urgent measures to strengthen efficiency of the public administration and of the judicial system functional to the implementation of the RRP" (emphasis added). The necessity to implement the RRP was also the reason for adopting an extraordinary provision. This provision mainly introduced the recruitment of new administrative personnel in the judicial support offices in all courts (using RRP funds) to counter the understaffing of judicial bodies.

Three further laws have been adopted in the course of the past few months, aimed at improving efficiency and reducing the duration of trials, following the specific recommendations issued by the European Commission to Italy in 2019 and 2020.

The law on criminal proceedings on the one hand introduces some immediate reforms to the criminal code and to the code on criminal procedure that, inter alia, block the trials if the appellate judgment is not defined within 2 years and the legality review by the Supreme Court within 1 year. If the deadlines are not met, the case is discarded. On the other hand, it delegates the Government to amend the criminal code and the code of criminal procedure within one year.

Similarly, the law on civil procedure delegates the Government to adopt, within one year, a far-reaching reform of the code of civil procedure affecting all its main parts, from labour to family litigations to the forced execution of debts. So far, despite several smaller reforms, it remains relatively easy, especially compared to most European countries, to delay judicial proceedings. It has been demonstrated that slow civil justice deters economic development, and this will most likely remain a problem in Italy. Despite small improvements in the last few years, civil justice in Italy remains among the slowest in Europe, together with Greece and Malta.

Finally, the most recent law, adopted in June 2022, tackles organizational aspects of the judicial system. While upholding the possibility of changing roles between judges and prosecutors, as a rule this can from now on happen only once in a magistrate’s career. This represents a compromise between those who consider it necessary for judicial independence that magistrates can move freely between judicial and prosecutorial roles and those who find it problematic in terms of separation of powers.  

New rules were introduced on the composition and election of the Supreme Judicial Council, aimed at reducing its control by organized groups of magistrates, often mirroring political preferences. For example, each judge or prosecutor can now submit his/her candidature to the CSM without collecting a minimum of 25 signatures from colleagues of the same judicial district, which so far meant in practice to be supported by one of the organized groups within the judiciary, that tend to mirror political affiliations – it must be reminded that judges and prosecutors cannot be members of political parties during their tenure. The new rules make it harder for judges and prosecutors to stand for political election and precludes them to return to their judicial job after serving a political mandate.  

The reform also introduces a much stricter evaluation of the performance of each judge and prosecutor, which has been unusual so far. The details of such evaluation including in terms of organizational capacity, will be determined by the government and by the CSM itself. The periodic evaluation of the professional attitudes, which takes place every four years, is carried out by the judicial councils, composed of judges and prosecutors, but also by lawyers and university professors, who are now not only consulted but also included in the final decision.

Will the outcome match the ambitions?

Opinions on the recent reforms are diverging. For some magistrates, they are not much more than lip service to the RRP to obtain the money. For the head of the association of magistrates, they threaten judicial independence.

Be that as it may, it cannot be denied that the reform package goes at the core of the problems of Italian justice: the length and complexity of trials and the corporatism among magistrates. Addressing these issues was long overdue and the strict conditionality imposed by the RRP has created political conditions that have never existed before. The chance is being seized, and this is good news. It remains to be seen whether the outcome will match the initial ambitions.

Italy has negotiated two ambitious goals with the European Commission, i.e. cutting the duration of criminal proceedings by 25 percent and that of civil proceedings by 40 percent (!) over the next five years. In this context, even a mere lip service obtaining such results will amount to an unprecedented improvement.

The reform package has potential, was long overdue, and seizes an historical political opportunity. Its outcome can be evaluated only when the envisaged reforms of the codes, that the laws delegate to the Government, are completed. The plan was to do so before the elections scheduled for early 2023, although the unexpected fall of the irenic majority behind PM Draghi in July 2022 will make it difficult to conclude the task before the snap elections scheduled for 25 September 2022. As it seems, the full implementation of the reform will be in the hand of the next government, in a climate of likely return to parochialism and political confrontation.

 

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Francesco Palermo is professor of comparative constitutional law at the University of Verona and Head of the Institute for Comparative Federalism at Eurac Research in Bolzano/Bozen.