THE NATIONAL ASSOCIATION
of
ITALIAN
MAGISTRATES
DEFENCE OF THE AUTONOMY AND INDEPENDENCE OF THE MAGISTRACY IN ITALY
______________
To give an adequate explanation of
why Italian magistrates (judges and public prosecutors) are so particularly
worried at the moment about their status,
we need to bear in mind that the system
which protects the autonomy and independence of our magistracy is amongst the
most advanced in the world.
In fact, the Italian constitution
which entered into force on 1st January 1948 pays particular
attention to the problem of the autonomy and independence of the judges. It
establishes that the ordinary magistracy is “an
order which is both autonomous and independent from any other power” (art 104) and institutes a body for its own
self governance : the High Council of the Magistracy (CSM) which has
responsibility for the careers of all ordinary magistrates (art 105).
Autonomy regards the entire
judicial order which is thus put outside the power of the executive, because
the independence of the magistracy would be compromised if matters concerning
the careers of magistrates were in the hands of the executive. For this reason
the Constitution gives the CSM responsibility for the administration of the
magistracy (nominations, transfers, promotions and disciplinary matters) and so
this governing body is the guarantor of the magistracy’s independence.
Autonomy is also exercised with
respect to legislative power in the sense that judges are subject only to the
law.
Independence relates to the
functional aspect of the activity of judging. The judicial order as a whole is
guaranteed autonomy, whereas independence relates to the individual judge at
the moment of exercising judgement. Independence is founded on and operates in
relation to the constitutional principle that the judge is subject only to the
law. This principle implements the notion of judgement deriving from the
sovereignty of the people.
Independence and autonomy are
principles that the Constitution also acknowledges for the public prosecutor,
in particular because it provides for obligatory penal action (arts.107 and
112).
Really, the obligation of penal
action contributes to guarantee not only the independence of the public
prosecutor in the exercise of his function, but also the equality of citizens
before the criminal law.
To this is added the fact that the
judges and public prosecutors belong to the same judicial order and have equal
respect. 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.
These principles, by common
agreement, are not only established under the Constitution, but are also well
rooted in Italian culture and tradition as the UN delegate, Mr. Param
Cumaraswamy, has observed, having drawn up a report on the independence of
Italian magistrates.
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. That obviously does not mean that
magistrates do not have to observe precise rules when carrying out their own
functions, because they are subject to the law they therefore have to respect
it.
The principle of obligatory penal
action has allowed the prosecution of persons with important public
responsibilities, as is shown – to refer to events which are well known all
over Europe – the Mani Pulite
investigations, that is, those complex investigations that revealed a
widespread system of corruption which involved people high up in various
political parties.
It is said, somewhat figuratively,
that the Mani Pulite investigation,
carried out by various judicial offices in Italy , brought down the first
Republic with the disappearance of the political parties which had governed the
country for more than forty years.
After the electoral defeat of
these political parties new party groupings were formed, the most important of
which is Forza Italia whose undisputed leader is Silvio Berlusconi, one of the
richest men in the country.
The problems for the Italian
magistracy appeared more evident after the political elections of 2001, from
which Silvio Berlusconi emerged as the democratically elected head of
government but who was, moreover, under investigation for corruption and false
accounting by the judicial authorities in Milan.
Mr. Berlusconi, strengthened by a
solid parliamentary majority, claimed himself to be the victim of a judicial
plot, organised by public prosecutors (and also by judges) who were acting in
the interests of the opposition political forces, that is of the left.
Obviously such an accusation is
completely unjustified since Mr. Berlusconi – like other politicians in his own
party (the Honourable Mr. Previti) – is on trial for accusations which will
have to be considered by the competent judge according to the rules of the Just Trial, which have recently been
introduced into the Constitution.
In the last few months, the press
and television, besides publicizing Berlusconi’s claims, have seized on
numerous statements by members of the government who have accused the judges of
not applying the law or of interpreting the law in an incorrect way in order to
condition the outcome of the Milan trials. To cite one example, it is sufficient
to recall that the Honourable Mr. Taormina, a former Under-secretary at the
Interior Ministry, went as far as asking for the arrest of some judges in Milan
who had, in his opinion, not applied a decision of the Constitutional Court in
relation to the position of the Honourable Mr. Previti, a member of parliament
from Mr. Berlusconi’s own party. Also, the Minister of Justice has, on a number
of occasions, made statements which are extremely critical of the judges.
But the most alarming fact of all,
unheard of in the history of the Italian Republic, is that the Senate approved
a motion (on which the opposition abstained from voting) making very serious
allegations against the Italian judges, accusing them of plotting against the
head of the government.
Such facts have obviously stirred
up public opinion, creating confusion and feeding a disconcerting institutional
clash between politics and the magistracy. All this delegitimizes the work of
the judges who, with great sorrow, see an intention to bring about a sort of “settling
of scores” directed against them.
We need to underline, however,
that our judicial system – as noted by the UN special envoy – is particularly
cumbersome and full of bureaucratic formality. This causes civil and criminal
proceedings to be extremely slow so that, unfortunately, Italy is the country
most frequently condemned at Strasbourg for violations of article 6 of the
Convention. For this reason the magistracy has, for some time, been asking
Parliament to approve laws to resolve such problems.
The political powers
accuse the magistrates of being the principal cause of the malfunctioning of
the judicial system, but in reality they intend to redimension the autonomy and
independence of the magistracy as established by 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, the Government recently
presented a draft law intended to introduce important modifications 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 founding
values in a fully developed democracy. For this reason, although modifications
to the law, aimed at restoring the effective operation of the judicial system
are useful, the judges need to be administered by the CSM alone otherwise their
independence would be compromised.
Instead, a very recent law
(28.3.2002 no. 44) has reduced the number of elected members of the CSM and has
introduced important changes for the election of those members who represent
the magistrates. Previously, there was no differentiation between the twenty
magistrates elected to the CSM and they could be either judges or public
prosecutors. With the new law it has been established that of the sixteen
magistrates elected there must be: two judges from the Supreme Court of
Cassation; four public prosecutors; and ten judges from the Tribunals or the
Courts of Appeal. This system aims at creating a division between the judges
and the public prosecutors and at reducing the role of the CSM in defending the
autonomy and independence of the magistracy.
The National Association of Magistrates,
which 95% of Italian magistrates belong to (about 9000), has taken incisive
action in the last few months to oppose the government’s proposals. In
particular, written statements have been printed and issued (one of which was
published in all the daily papers) together with press releases, meetings of
magistrates have been organised as have conventions and public demonstrations:
for example, as a sign of protest the judges wore their black gowns (normally
worn at court hearings) instead of their red gowns (worn on ceremonial
occasions) at the formal ceremonies held in all the Courts of Appeal to mark
the inauguration of the judicial year.
Unfortunately, so far, all
attempts at establishing a proper dialogue with the Government in order to
avoid laws being approved which would damage the magistracy’s autonomy and
independence have failed. For this reason, on 20.4.2002, the National
Association of Magistrates with the common agreement of all Italian judges
decided – in the course of a crowded
meeting held in Rome – to call a one day strike for 6.6.2002.
The Italian magistrates hope that,
by calling the strike for a somewhat distant date, it will be possible to set
up those talks with the Government which, so far, have been lacking.
The President of the Republic, who
is also the President of the CSM, sent a message to the President of the
National Association of Magistrates on 19.4.2002 restating that he is the
guarantor of the magistrates’ independence and autonomy and he invited the
Government to promptly hold talks with the magistrates. The President of the
Lower House of Parliament, although not agreeing with the magistrates’ decision
to strike, has also made the same request to the Government.
The Italian magistrates feel their
professional dignity has been deeply offended and hope that it will be possible
to find suitable solutions by 6.6.2002 so that Italy can continue to be one of
those countries in which the autonomy and independence of the magistracy is
defended best.
Italian magistrates are particularly
grateful for the sensitiveness shown by the UN in addressing these problems,
but want to stress that the Italian situation, although delicate, is not in any
way comparable with that of many countries in the world where rules to defend
the autonomy and independence of the magistracy do not exist.
Rome, 2 may 2002
Fausto Zuccarelli