Italy’s Constitutional Bill on the Reform of Judicial Administration
Last week, Italy’s judiciary went on strike. Under the lead of the National Magistrates’ Association, 80% of ordinary judges and prosecutors protested the government’s proposed constitutional reform, which seeks to amend Title IV of the Constitution, threatening to reshape the delicate balance between the judiciary and politics. While clashes between judges and politicians are nothing new in Italy, this latest reform raises concerns that go beyond routine legal disputes. Though not a radical overhaul, the changes could significantly impact judicial independence and the separation of powers.
The Justice Minister’s bill addresses different aspects of judicial administration, the most debated being the separation of the career paths of judges and prosecutors. However, most controversially, it also aims to restructure the system of judicial self-governance. Following the French model, it proposes to split the High Council for the Judiciary (Consiglio superiore della magistratura, from now on CSM) to create a High Disciplinary Court with functions previously held by the CSM, and to introduce a new method for selecting members of judicial self-governance bodies.
The Separation of Career Paths
The institutional relationship between judges and prosecutors is a long-standing issue, unknown to most other constitutional systems. The Italian Constitution uses the term magistrates without differentiating between judges and prosecutors, and the only constitutionally relevant difference is set by Article 107 of the Constitution. Accordingly, “the public prosecutor enjoys the guarantees established […] by the legislative provisions on the judiciary”, suggesting that their status may be regulated differently to account for the unique nature of their functions. The unity of judges and public prosecutors reflects historical traditions, but when the Constitution was drafted and principles of judicial autonomy and independence were incorporated, it also served as an additional guarantee against the political misuse of justice and the subordination of public prosecution to the executive power. One of the elements of such unity is that judges and prosecutors share their career paths.
In principle, judicial recruitment allows newcomers to decide whether to be assigned to a judging or to a prosecutorial position, and it is possible to move from one role to the other all through the career. Over the years, there have been political and scholarly discussions on the appropriateness and the constitutionality of establishing separate career paths, and attempts have been made in this direction through legislative amendments. Most notably, a major reform in 2005-2006, while not rigidly separating career paths, limited the possibility for judges and prosecutors to switch roles by setting objective and subjective requirements, which are subject to the assessment of the CSM.
The system of “career interchangeability” is praised by those who argue that judges and prosecutors share the same “culture of independence and impartiality”. Others rebut that a separation would avoid unfortunate ties between the judge and the “accuser” in the criminal process, which compromise that very culture of impartiality. Therefore, such a step would achieve a veritable triadic structure of the criminal process. This criticism acquired further merit with the decade-long move towards the adversarial model of the criminal process in Italy, notably the reform of the Code of Criminal Procedure back in 1989, and ten years later, in 1999, the reform of Article 111 of the Constitution that incorporated the principles of the fair trial in the Constitution. Carlo Nordio, The Minister of Justice, when presenting the bill, indeed stated that the whole rationale of the reform lies in the constitutional recognition of such principles.
The proposal amends Article 102 of the Constitution. It confirms that judges and prosecutors both belong to the judiciary with equal status and perform “judicial” functions. However, in a crucial change, they will follow separate career paths. This distinction is reinforced in the new Article 104, which explicitly states that the judiciary consists of magistrates pursuing either a judicial or a prosecutorial career. In this sense, it breaks the tradition of a unitary institution, moving towards the establishment of two separate components within the judiciary, each of them endowed with the same constitutional guarantees apart from those diverging provisions allowed by Article 107 of the Constitution.
Restructuring the CSM and the High Disciplinary Court
The second pillar of the reform goes hand in hand with the separation of career paths. The new Article 104 of the Constitution proposes two distinct self-governance bodies: one for judges and one for prosecutors. These bodies would oversee promotions, appointments to specific functions and professional evaluation. This proposal was similarly put forth in 1997, when a reform of the second part of the Constitution was attempted but eventually failed. Despite this structural change, the autonomy of both self-governance bodies is maintained, and their composition would largely mirror the currently existing CSM. They would consist of one third of lay members (laici), two thirds of judicial members (togati), plus the Head of State as their president, and the President of the Court of Cassation and the Chief Public Prosecutor respectively. The vice president of each body would be from among its lay members.
As a third pillar, the reform aims to transfer the disciplinary powers from the currently existing judicial self-governance body to a newly created High Disciplinary Court (Alta corte disciplinare, ACD – draft new Article 105 of the Constitution). The court would be composed of fifteen members: three selected from a list drafted by the Parliament, three appointed by the Head of State from among qualified law professors and lawyers, six judges and three prosecutors selected from lists drafted by judges and prosecutors respectively. The ACD would elect its president from among its lay members. Overall, the system of disciplinary responsibility has been considered deficient. For this reason, it underwent a reform in 2005-2006, aiming to formalize the definition of disciplinary offenses that previously were not typified but loosely defined by practice. This reform marked a shift toward a more jurisdictional approach to disciplinary responsibility. Currently, a section of the CSM oversees disciplinary proceedings, consisting of the vice president of the council, who presides over it, and five members, four of whom are magistrates. Thus, the creation of a High Disciplinary Court is, as the Minister of Justice underlined, the “outcome of a natural development”. The reform proposal aims to distinguish disciplinary functions from the administrative responsibilities traditionally handled by judicial self-governance bodies, reinforcing their distinct nature.
From Election to Partially Random Selection in Judicial Self-governance
Lastly, the bill aims to introduce a brand-new system for selecting members of the newly created self-governance bodies. While the current Article 104 of the Constitution states that CSM’s lay and judicial members are elected by the Parliament and the judiciary respectively, its new formulation introduces a drawing system for the two new councils. Their members would thus be selected randomly from two lists drafted by Parliament and by judges and prosecutors (according to the procedure established by the implementation law). Similarly, the ACD’s members (except those appointed by the Head of State) would be selected by drawing lots from the lists drafted by the Parliament and by judges and prosecutors.
This is not the first time the idea of sortition has surfaced in judicial reform debates. Justified by the Minister of Justice as a way to avoid shortcomings of electoral competition that undermine the “reliability of self-governance”, it was already taken into consideration by government proposals in 2009 and again between 2018 and 2020 – though without success. As Yves Sintomer stressed, sortition is not completely novel in the field of justice. It has been discussed in France too and is incorporated in Article 90 of the Greek Constitution for some of the members of the judicial council. While some support the idea, arguing that it could reduce political and factional influence, others question whether it is truly effective in countering the influence of judicial associations on the operation of the CSM and achieving impartiality. Also, its constitutionality has been debated since Article 104 of the Constitution explicitly mandates the election of CSM members – hence the push to enshrine the reform within the Constitution itself.
Achieving Impartiality or Reworking the Institutional Balance between the Judiciary and Politics?
The proposal undeniably breaks with the well-established features of the Italian judiciary in three key areas: the judiciary as a unitary body and the unity of its self-governance framework; the principle of electivity of judicial self-governance bodies; and the concentration of self-governance functions within one single institution.
At the same time, it does not turn upside down the core principle of self-governance of the Italian Judiciary, with the sole exception of the election mechanism to select members of judicial self-governance bodies. The separation between judges and prosecutors does not affect their autonomous status, and the creation of two distinct councils does not question the fundamentals of their functions and nature (replicating grosso modo the structure of the currently existing CSM). While disciplinary powers are taken away, the ACD’s structure guarantees institutional autonomy by maintaining that it is composed of a majority of magistrates.
Assessing the constitutional bill is therefore not straightforward, with only a few of its elements being openly prone to criticism, namely the duplication of the CSM. Overall, there are good reasons for and against each of the proposed solutions, especially with a view to the legal dimension. The diversity of positions among scholars and magistrates reflects the nuanced and unresolved nature of the debate.
The systemic rationale behind the whole reform becomes clearer when considering its broader context. For decades, the Italian constitutional landscape has been shaped by recurring tensions between the judiciary and politics, with frequent allegations of politicization and corporatism within the judiciary. These allegations concern a variety of occurrences, from the initiation of criminal proceedings against administrators or politicians to prosecutors’ media over-exposure, from CSM intrinsically political opinions on Government’s bills relating to judicial organizations to corporatist decisions in judicial appointments and disciplinary procedures, to public stances of judicial associations against Governments’ policies.
The Minister of Justice presented the reform primarily as a means to achieve a more impartial justice. The separation of career paths is positioned as the cornerstone of this effort, with the division of the CSM into two mutually independent institutions being a natural consequence of it. However, an underlying objective of the reform appears to be the weakening of the judicial self-governance framework and to neutralize the grip of judicial associations, effectively aiming to depoliticize the system. The division of the CSM, for instance, seems inspired by the motto divide et impera rather than strictly necessary for the separation of career paths. In this regard, France offers some insights, as the 2008 constitutional reform that created two separate self-governance bodies aimed precisely at countering the consolidation of the Conseil supérieur de la magistrature after the 1993 reform.
Similarly, the introduction of the sortition-based selection process is explicitly intended to disrupt the influence of judicial associations on the judicial self-governance bodies (and the ACM) and their corporatism. While Italy’s historical relationship between justice and politics has been dynamic, and this institutional rebalancing could yield positive effects, the lack of transparency surrounding the bill’s true objectives is a legitimate concern. From this perspective, the outcry of the ANM is understandable – even though, one should admit, not fully justified. In any case, the reform’s path is still long. After its approval by the lower house in January, the bill will now undergo the Senate’s scrutiny – which has not yet been scheduled –, before a second round of votes by the two houses takes place. Even if the iter legis gets to an end, a referendum will most probably be needed, which makes the very approval of the reform uncertain.
