Rule of law

The CSOs and legal practitioners specialised in the rule of law who took part in this session described developments in the past years as leading to a deep institutional crisis. According to them, the rise of a political culture of mistrust, anti-establishment and anti-parliamentarism had been clashing with the longstanding constitutional tradition of the country. They explained that this trend was illustrated by the attacks on the judiciary and associations of judges and prosecutors following unpopular judgements protecting migrants’ rights. Legislation restricting search and rescue activities was mentioned as an example of the possibility for a political majority to pass legislation in a formally correct way while its content would breach international and constitutional law as well as fundamental rights.

Participants considered that the last years had seen increasing impediments imposed by the political sphere on the remit of the judiciary. According to these participants, some politicians had sought to impose the public narrative that elected politicians were the only representatives that had the legitimacy to act on behalf of the people, creating a dangerous delegitimisation of the role of the judiciary in the eyes of the people. Judges were asked to implement rather than interpret the law, in a complete reversal of their traditional function. Participants explained that attacks on the judiciary were not new in Italy and they had especially been linked to the reaction of some politicians in corruption-related cases. It was explained that what was new and particularly dangerous this time was the fact that it was now a big part of the political class that portrayed the judiciary as a whole as being “against the people”. In this context, the people are encouraged to think that the real challenges that the judiciary is facing, and primarily its slowness, is the fault of the judges and not the result of insufficient public policies failing to allocate the sufficient resources to the judiciary.

Participants gave other examples of current challenges concerning the rule of law in Italy. A participant explained that a bill could put at stake the feature of the Italian judicial system which meant that prosecutors belonged to the judiciary and were totally independent from the executive. The Italian authorities explained that public prosecutors were indeed only subject to the law and did not come under the executive. According to the Italian authorities, the guarantee of their independence was ensured through the High Council of the Judiciary (Consiglio Superiore della Magistratura, CSM). They indicated that a reform was under discussion concerning the composition of the CSM and its disciplinary prerogatives. A participant mentioned plans for legal reform that would have gone or could go against the Constitution, like the plan of a major political force in the previous government to impose an imperative mandate on Members of the Parliament, or a push to stop the statute of limitation after the first instance trial which could end up lengthening appeals. This participant also gave concrete examples of unprecedented attacks on the checks and balances of power under the previous government, which had forced the persons heading the Central Bank, the Italian Companies and Exchange Commission (CONSOB), and the National Social Welfare Institute (INPS) to resign after they had warned about the impact that some public policies would have in the areas they monitored.