No one denies that the administration of justice in Italy is in a mess; the length of trials is measured against eternity with civil cases being handed down lovingly from parent to child like some sort of heirloom even though criminal liability is thankfully extinguished at death so that the sins of the fathers are not visited on the sons, at least not legally. The adage “justice delayed is justice denied” has no currency in Italian.
Over the last few decades there have been some reforms in procedure moving Italy a small way towards the English accusatorial system away from the continental inquisitorial form. But the hybrid has actually slowed down the trials.
So any reform that brought Italian justice up to scratch would indeed be “epochmaking”. And that is just what Berlusconi promised before he unveiled his new bill yesterday.
Berlusconi and his supporters have never made any secret for what they call the toghe rosse or “red robes”, red for the political colour, robes for the judges. And they have frequently called for them to be reined in. If the reform passes, it would create a massive shift in the balance of powers in Italy. Alessandro Sallusti, the editor of one of the Berlusconi family papers, Il Giornale, said the reform “would free the country from the magistrates’ dictatorship” calling the magistrates “untouchable” without a reform. Berlusconi himself proclaimed disturbingly that if this law had been in force 20 years ago there would have been no “clean hands” investigations. These were the Milan corruption trials of the early Nineties which in practice destroyed the parties which had been in government for the previous 45 years. What he wanted to say was that the judiciary overstepped its powers then and moved into the executive and legislature; instead, the message seemed to be that he wanted to cover up the corruption and that politicians should be above the law.
If we look at the bill, some of the proposals do not sound unreasonable to anyone used to common law systems. At the moment magistrates in Italy are a single group which includes judges and prosecutors. They enter a career path after a degree in law and competitive exams and normally have security until retirement. This means that a magistrate may be both judge on the bench and prosecutor at different moments in his or her career, a combination which would seem to contravene some of the principles of natural justice.
Other proposals which do not seem so scandalous to an English or American observer are the need to prioritise the types of crime which are prosecuted and the impossibility for the prosecution to appeal an not guilty verdict. Few Anglo-Saxon lawyers would argue that all alleged crimes have to be pursued; there simply are not enough resources. And no one who works in the common law system is surprised that the defence can appeal while the prosecution usually cannot. After all, the prosecution has to prove guilt “beyond reasonable doubt”.
In a more tranquil Italy, these points could be debated and the possibility of the separation of prosecution and the bench was included in a constitutional reform package in the ‘90s headed by Massimo D’Alema.
But Italy is not tranquil today and the Berlusconi proposals are clearly in bad faith.
The separation of bench and prosecution is meant not to create two separate but equal careers as the Minister of Justice Angelino Alfano maintains but to weaken the prosecution. Berlusconi made this clear when he said yesterday that “prosecutors should go the judges cap in hand”.
Berlusconi argues that his reform would level the playing field between defence and prosecution (and even presented a simplified diagram
so that we stupid people would understand). Instead, by removing the prosecution’s right to appeal a verdict, he would weight the scales heavily in favour of the defence. In the Italian system, the judge’s duty is establish the truth (inquisitorial) and not to act as impartial umpire as in the common law accusatorial system, so the two sides are actually equal.
Deciding which cases to prosecute would not be scandalous either – the Crown Prosecution Service does it in England except that the reform would give this prioritisation to Parliament, i.e. the majority. Should prosecutors investigate political corruption, vote buying, mafia and politics… or should they concentrate on street crime, burglaries, riots? Once again, the measure would move the centre of power closer to the executive.
Another punitive measure meant to clip the wings of overzealous prosecutors is to introduce personal civil liability for judges and prosecutors. Any professional mistakes that they might make would be actionable and the single magistrate would have to pay out his or her pocket (at the moment if a magistrate makes a mistake it is the state which pays).
Finally, the biggest giveaway is that the reform does nothing to change the dire state of civil cases. Delays in civil case are not only an injustice for the injured party but are one of the many brakes on economic development in Italy.
If the reform passed in more or less its present form, it would not save Berlusconi from his four prosecutions (today the Mills case had its first hearing since the Constitutional Court changed Berlusconi’s immunity) but would greatly reduce the power of the judiciary and the constitution’s separation of power. Even if it does not pass, it is a warning barrage against the magistrature and a very good diversionary tactic to take public awareness off the other problems that the government is not facing.
As a constitutional amendment, it will have to go through both houses of Parliament twice with at least three months between votes. With a maximum of two years before the next elections (and a high probability of early elections before then), the chances of the reform passing are very slim.
Instead, Berlusconi could offer to withdraw the overall Justice Reform in exchange for the re-introduction of parliamentary immunity from prosecution and/or the so-called processo breve or short trial in which every trial has a best by date stamped on it and if the verdict is not reached by that date it prosecution fails. This would let Berlusconi off all of his cases except his indictment for underage prostitution.
Tomorrow there will be demonstrations in 104 cities to “save the constitution”; their success will be a measure of how much Italians actually care about this reform. The magistrates have already expressed their opposition so once again there will be a major clash of institutions.