Article 69 of the first Italian Constitution, enacted after the 1848 revolutions, stated: “Judges appointed by the King, with the exception of lower rank ones, cannot be removed after three years in charge”. This was supposed to mean that the judiciary power was independent from both the legislative and the executive power.
However, the 1848 Constitution was “flexible”, which meant that the Parliament could modify it by law. Therefore, when the Fascist Party rose to power in 1922, it destroyed the independence of the judiciary simply strengthening the powers of the Ministry of Justice.
When the fascist regime fell in 1943 and a new Constitution was enacted after the war, great care was put in safeguarding the independence of the judiciary. Today, Italian judges and even prosecutors can be dismissed, suspended, transferred or otherwise subjected to penalties only by the Higher Council of the Judiciary, which is dominated by judges and prosecutors elected by their colleagues on a national basis. This is stated by the Constitution in force, which cannot be modified by the Parliament.
According to some observers, the post-war system generated some serious problems. Firstly, the magistrates of the Higher Council would be too lenient in reviewing the conduct of their colleagues, often condoning wrongdoings, negligence and even truancy. That could partly explain why trials in Italy take so long, even decades. At the same time, warrants of arrest are too easily issued since they are virtually the only way to put a criminal in jail, being impossible to simply wait for the final judgement.
Secondly, the elective functioning of the Higher Council led judges and prosecutors to organize themselves in factions (known as “correnti” or officially as “unions” or “associations”), which would be tantamount to political parties and would influence promotions, careers, criminal trials and investigations.
For decades, the Italian right has been arguing that its members, first of all Silvio Berlusconi, are the target of leftist factions in the judiciary. But today also Mr Matteo Renzi, the man who is going to become the new leader of the left, told his supporters convened in Florence that a reform of the judiciary is necessary, citing the case of Mr Silvio Scaglia.
Mr Scaglia, an Italian manager indicted for money laundering, was abroad when he was informed that a warrant of arrest had been issued against him in Italy. He chartered a private flight, came back to Italy and surrendered. He was jailed for a year before being cleared of all accusations.
Mr Renzi is known for arguing that the whole Italian system should be much more business-friendly.