THE NATIONAL ASSOCIATION

 of

 ITALIAN MAGISTRATES  

 THE ITALIAN MAGISTACY AND PROPOSALS FOR ITS RE­- ORGANISATION  

The Italian constitution pays particular attention to the subject of the autonomy and independence of the judges. To achieve these principles, it establishes that the ordinary magistracy is “an order which is both autonomous and independent from any other power” (Article 104) and instituted a body for its own self governance : the High Council of the Magistracy (CSM) which has responsibility for the careers of all ordinary magistrates (Article 105).

For this reason the Constitution gives the CSM responsibility for the administration of the magistracy (nominations, transfers, promotions and disciplinary matters) and thus the governing body is the guarantor of the magistracy’s independence. 

            The Constitution also recognises the principles of independence and autonomy in respect of the public prosecutor, in particular because it provides for the obligation to prosecute all crimes (Articles107 and 112).

            To this is added the fact that judges and public prosecutors belong to the same judicial order and are treated equally within it. It is, therefore, possible for a magistrate in the course of his or her career to pass from one function to the other (from judge to public prosecutor or vice-versa) on the basis of the CSM’s evaluation.

            Over the years, a complex system of norms has been approved, which puts these constitutional principles into effect and which allows all Italian magistrates (judges and public prosecutors alike) to carry out their proper functions without being conditioned by legislative and executive power, and to be able to prosecute all criminal offences, whoever may have committed them.

            The principle which obliges prosecutors to take action against all criminal activity also requires them at times to prosecute persons with important public roles, like Mr. Berlusconi (Prime Minister) and parliamentarians like the Honourable Mr. Previti.

            Mr. Berlusconi, whose position is strengthened by a solid parliamentary majority, claims to be the victim of a judicial plot, organised by public prosecutors (and also by judges) who are acting in the interests of the opposition political forces, that is, of the left.

            Obviously such an accusation is totally unjustified since Mr. Berlusconi is on trial as a result of the criminal accusations made against him. These must be evaluated by a competent judge according to the regulations governing the Just Trial, which have recently been introduced into the Constitution.

            On 29.4.2003 Mr. Berlusconi repeated the serious accusation that the magistracy is politicised. In fact, at the end of a three year trial the Milan Tribunal found the Honourable Mr. Previti guilty of corrupting magistrates and sentenced him to eleven years imprisonment. Mr. Berlusconi made a statement  saying: “The condemnation is nothing but a confirmation of political-judicial persecution. Enough of politicised magistrates” He added in a letter to the press: “ In a liberal democracy, politicised magistrates cannot choose the government that they prefer using the logic of the coup d’čtat”. 

            These very serious comments are sufficient to understand the strong climate of tension that exists between politicians and the magistracy in Italy.

            The political powers accuse the magistrates of being the principal cause of the malfunctioning of the judicial system, but in reality they intend to re-dimension the autonomy and independence of the magistracy as established in the Constitution. Obviously they intend to achieve this result without formally modifying the Constitution, but by proposing and approving laws aimed at removing control over the careers of judges from the CSM and, in some way, giving it to the Minister of Justice.

            In fact, in 2002, the Government presented a draft law intended to introduce important changes within the judicial order, among which, in particular: 1) to set up a magistrates training college under the control of the Supreme Court of Cassation. As a result the Court would lose its role as that high point of jurisdiction charged with unifying national law through its judgements, in order to also make it a place for assessing the judges; 2) to allow the Minister of Justice, and therefore the Government, to have an active role in the nomination of some of the members of the Supreme Court of Cassation. In this way the power of the CSM to arrange the nomination and careers of the magistrates would be greatly reduced in order to award such power to the political world; 3) to introduce a means of separating the careers of judges from those of public prosecutors in such a way as to make it extremely difficult for a magistrate to pass from one function to the other.

            Faced with this overall situation, the Italian magistracy has responded with great composure but also with great firmness, trying to make it clear to the public that the constitutional principles of the autonomy and independence of the judiciary are fundamental values in a fully developed democracy.

            The National Association of Magistrates, to which 95% of Italian magistrates belong (about 9000), took incisive action to oppose the government’s proposals and organised a one day strike on 6th June 2002 in protest.

            Unfortunately, so far, all attempts at establishing a proper dialogue with the Government so as to avoid laws being approved which would damage the magistracy’s autonomy and independence have failed. Indeed the government has recently presented a new reform bill which is even more damaging for the magistracy.

            At present, access to the magistracy is by means of public examination, and magistrates advance to higher positions (Court of Appeal, Cassation, senior management) by means of assessments made from time to time by the C.S.M. on the basis of seniority, as required by law.

            The new government project is based, essentially, on the following points:

a) access to the magistracy will be by public examination for the two distinct careers of judge and prosecutor.

b) passage from the function of prosecutor to that of judge can take place at the second grade only on the basis of a new examination.

c) positions in the Court of Cassation can be obtained only on the basis of a new examination.

d) managerial positions  can be allotted only on the basis of a new examination.

            If this project is approved, it will mean that the magistrate’s life will consist of continual examinations and, above all, will create two separate magistracies: that of judge and that of prosecutor. This would have the effect that the latter would inevitably be put outside the judicial culture with consequences for its own independence.

            A magistracy with a hierarchical pyramid structure, as provided for in the new reform project, is in contrast with the model outlined in the Constitution. The principle of equal treatment for the two functions (Article 107 of the Constitution) is replaced with that of a magistracy basically structured on rigid career patterns, which are also damaging for its efficiency. In fact, magistrates rather than being engaged in delivering justice within a reasonable time-scale would be continually engaged in trying to pass examinations in order to advance their careers.

            Obviously the continuing professional training of the magistrate is a necessary requirement in order to ensure that citizens can have a fair trial, and to this end the CSM makes great efforts in this direction, organising a considerable number of refresher and updating courses every year. The situation would be different if the magistrates had, instead, to obtain qualifications to advance their careers. If a magistrate’s attention is not concentrated on his workload, but instead on verbosity of the motivation for  the sentence which might improve his or her image, and if there is a tendency to engage in theoretical study, these would inevitably further aggravate the situation in respect of the excessive length of trials.

            The Italian magistracy does not intend to avoid facing up to the reforms that are necessary in the judicial system, but hopes that such reforms are inspired by the principles of efficiency and equal treatment for all the judicial functions.

            Judges and public prosecutors are convinced that the best defence of their autonomy and independence lies in their efficiency in performing their role, and that the reform projects presented by the government tend, in reality, to reduce the operation of such principles and restrict the role of the CSM.

            The Italian magistrates feel their professional dignity has been deeply offended and hope that  the reform projects will not be approved, so that Italy can continue to be one of those countries in which the autonomy and independence of the magistracy is defended best.

            The National Association of Magistrates, grateful for the attention of the IAJ and the European group in particular, reserve the possibility of asking the International Association to intervene if the government project is approved by Parliament.

Rome, 7^th May 2003

The Italian  delegate

Fausto Zuccarelli