Introduction
While judicial independence is a well-established principle in European constitutionalism, the same does not apply to judicial accountability. In both judicial reforms and academic scholarship, the discourse on judicial independence has indeed overshadowed that of judicial accountability.Footnote 1 Yet, the Council of Europe itself, long at the forefront of promoting judicial independence, acknowledged the relevance of the latter in Opinion No. 18 (2015) of the Consultative Council of European Judges, on the legitimacy and accountability of the judiciary.Footnote 2 Hence, it is particularly important to understand how the principle of accountability is interpreted and relates to political backgrounds within specific national contexts.
In this regard, Italy is an important case study. While the Italian Constitution explicitly guarantees judicial independence, it does not refer to judicial accountability.Footnote 3 Italy is also one of the first European countries to have adopted a strong judicial council model of court administration.Footnote 4 This model later served as a template promoted by the European Union and the Council of Europe in Central and Eastern Europe for increasing judicial independence.Footnote 5 At the same time, looking at debates held within the Constituent Assembly in 1946 and 1947, one can see that the Italian drafters extensively linked the judicial council with accountability issues from its very inception.Footnote 6 Moreover, legal writings show that judicial accountability (‘responsabilità del giudice’) has long been a subject of study for Italian legal scholars.Footnote 7 Finally, judicial accountability, and more specifically the relationship between the judiciary and politics, played a role in the ‘regime crisis’ sparked by the collapse of the party system between 1992 and 1994.Footnote 8 As a result, projects for reform addressing a proper balance in how, and to whom, judges should be accountable have marked the politico-legal discussion over the last 25 years.
This article analyses how the politico-legal debate has affected institutional reforms of judicial accountability in Italy since the enactment of the Constitution of the Italian Republic in 1948. It discusses the interaction between measures aimed at reshaping the accountability framework and the underlying political motivation for them.
The concept of accountability lends itself to different meanings.Footnote 9 Drawing on recent scholarship, this article defines judicial accountability as a mechanism, i.e. as ‘an institutional relationship in which a judge can be held to account by a forum’, which may entail negative or positive consequences (sanctions and rewards).Footnote 10 This definition is narrower than the one adopted in Opinion No. 18 (2015)Footnote 11 and requires some clarification. Following the conceptualisation of accountability provided by recent scholarship, this article is interested in three dimensions: (i) who is accountable; (ii) to whom; and (iii) through what processes.Footnote 12
This article deals with both ordinary (i.e. non-constitutional) judges and prosecutors in Italy, who largely share the same institutional framework. It focuses on the main institution to which judges are accountable – the Consiglio superiore della magistratura, the judicial council introduced in 1948 by the Constitution – and on the interaction among the principal actors within that council. It discusses only the three most important accountability mechanisms in the Italian situation: those affecting judicial careers, disciplinary responsibility, and civil liability. With regard to the first issue, a judicial career can be influenced by a variety of instruments, either ‘sticks’ or ‘carrots’; these include appointments to vacant positions, salary increases, and evaluations (positive or negative). On the second issue, disciplinary responsibility is a classical mechanism of judicial accountability, mostly related to legal or ethical (mis-) conduct, yet the approach to it can change over time and does so in the case under examination. Finally, civil liability most often works as a sanctioning mechanism insofar as it entails censure of judges’ decision-making behaviour and payment of damages.Footnote 13 Judicial accountability debates often overlook this mechanism, but its political salience in the Italian context and the repeated reforms are particularly illuminating.
The aim of this article is not to investigate the practice of holding judges accountable, which is often termed de facto judicial accountability.Footnote 14 The real effects of institutional reform are inferred from the existing literature. Instead, this article analyses the rationales and justifications for institutional reform and argues that it is difficult to ensure a proper and stable balance-of-accountability framework in abstracto and ex ante in a general way, due to the ever-changing underlying socio-political conditions. Fixed, one-size-fits-all templates cannot ensure balance.Footnote 15 More specifically, this article demystifies the myth of the Italian ‘self-governing’ Consiglio superiore della magistratura. According to this myth, the Italian judicial council, made up of a majority of judges charged with administering a system free from political interferences (hence ‘self-governing’), is mostly seen as the tool for independence. As we will see, a self-governing judicial body does not, however, necessarily enhance judicial independence, and can even undermine it under certain circumstances. Italian and international scholars share this conclusion,Footnote 16 yet the myth still prevails when it comes to analysing judicial reform in Europe.Footnote 17 What is often neglected, as the Italian case can teach us, is that judicial councils are flexible tools for achieving a balance in judicial accountability.
The structure of this article is as follows. The first section introduces the essential features of the Italian judiciary and the political background of its evolution during the post-war era of the Italian Republic. Subsequently, the Consiglio superiore della magistratura’s functioning with regard to accountability mechanisms is analysed, followed by a discussion of three key areas of reform affecting judicial accountability: the rules regulating the career system, notably evaluation, promotion, and appointment to specific positions;Footnote 18 the rules regulating disciplinary responsibility; and those regulating the civil liability of judges.Footnote 19 The last section focuses on the broader repercussions of the Italian case study.
Essential features of the Italian judiciary and the political conditions of its post-war development
The Italian judicial system is similar to the French-derived bureaucratic model.Footnote 20 Accordingly, the judge is a public officer who enters the profession at a young age and passes through various stages of advancement. The career system of the Italian judiciary is therefore modelled on the typical features of the State’s bureaucracy.Footnote 21 At the same time, the Italian system has very specific historical origins.
While the French model, introduced by Napoleon, rested on the principle of the unity of the State,Footnote 22 the Italian judiciary was geographically and socially fragmented. Until 1923, Italy had five regionally-based courts of cassazione (or Italian Supreme Courts),Footnote 23 and a tradition of judges’ engagement with judicial politics reflected in the establishment of the General Association of Magistrates as early as 1909.Footnote 24 This fragmented judiciary was embedded in a centralised system of judicial administration within the Ministry of Justice, in which bodies of elected judges were created with the task of participating in the management of the judiciary; these bodies only had advisory competences.Footnote 25
The Fascist regime (1922-1943) did not radically change the organisation of the Italian judiciary, although centralisation and internal hierarchisation became more pronounced. Most significantly, the five courts of cassazione merged into a single body in 1923, and the reform muffled the elective character of the ‘self-governing’ bodies. In addition, the General Association of Magistrates was banned in 1926.Footnote 26
The above events explain why the 1948 constitutional remodelling was deemed necessary. The new Constitution devoted a specific chapter to the judicial system.Footnote 27 It set out the source of legitimacy of justice (it must be exercised ‘in the name of the people’) together with the principle of judicial independence (‘Judges are subject only to the law’).Footnote 28 It provided that recruitment must follow national competitive examinations while at the same time admitting the possibility of ‘lateral’ recruitment.Footnote 29 It envisaged a judicial council made up of a majority of magistrates.Footnote 30 It established strong guarantees of judicial independence such as the principle of the legal judge (‘giudice naturale’)Footnote 31 and the rule of irrevocability of judges.Footnote 32 It introduced the principle that all judges are equal and differences may only derive from the functions they exercise.Footnote 33 Finally, it introduced the obligation for prosecutors to institute criminal proceedings in order to avoid arbitrariness.Footnote 34 Overall, the new framework addressed the shortcomings of the bureaucratic roots of the Italian judiciary, and in particular the reduced status of a judge as equal to that of any common civil servant and subject to the same criteria for career advancement.Footnote 35 Yet the establishment of a new judicial organisation was neither linear nor carved in stone, as the original constitutional compromise was open to divergent developments.Footnote 36
First, the 1948 Constitution did not regulate in detail the system of judicial guarantees (‘guarentigie’: irrevocability, disciplinary responsibility, supervision, etc), although in Article 107(3) it established the principle of the equality of judges, thus indirectly ruling out formal judicial hierarchy. Instead, it included a transitional provision establishing that until a new law on the judiciary in accordance with the Constitution was issued, existing laws would remain in force.Footnote 37 A new general law on the judiciary was, however, not immediately adopted and the overall structure of the judiciary initially remained similar to that of the interwar era. Judicial guarantees were only partially regulated and magistrates simply divided into three categories according to their functions.Footnote 38 This delay in implementation resulted from the convergence of interests between Christian Democrats (Democrazia Cristiana, the main party in government) and higher judges. The former were not eager to implement judicial guarantees due to the political proximity to the conservative higher judiciary in the first post-war period. This resulted in an equilibrium based on the external accountability of the judiciary to the Christian Democratic Minister of Justice filtered through the informal influence of the upper judicial hierarchy in appointments, promotions, etc, formally decided by the Minister of Justice. Members of the higher judiciary kept their grip on the judiciary, also after the actual establishment of the Consiglio superiore della magistratura in 1958 owing to the category-based electoral system for judicial representatives;Footnote 39 the structure of the judiciary remained pyramidal.
Impetus for reform was two-fold. Internally, the judiciary was subject to a process of democratisation; lower judges started challenging the hierarchical patterns and the lower judges managed to dominate the National Magistrates’ Association. That Association was established in 1944 as a successor to the General Association of Magistrates. It acted as a forum in which judges gathered in different groups (‘correnti’) to discuss judicial policies.Footnote 40 Added to this were external pressures. The Communist Party, which was excluded from government, supported legislative implementation of constitutional guarantees that would enhance the position of less conservative lower judges, since they could rely on them as a channel to influence the political process. Lower judges could refer questions to the Constitutional Court to challenge judicial policies,Footnote 41 while the Consiglio superiore della magistratura itself was also potentially a device for challenging or discussing these policies. This also explains why lower judges and the Communist party supported an extensive reading of the council’s powers, i.e. not limited to appointments, promotions and disciplinary responsibility.Footnote 42 Under these pressures, between the 1960s and the 1970s, a non-hierarchical system was built around self-government with solid guarantees of independence. This development exemplified the ability of judges to influence institutional development under favourable political conditions.Footnote 43
By the mid-1980s, the system had started to malfunction.Footnote 44 Disagreement among governing partiesFootnote 45 and between them and judicial associations (‘correnti’) generated tensions affecting the functioning of the Consiglio superiore della magistratura.Footnote 46 In the first half of the 1990s, the party system collapsed as a result of political scandals and the indictment of political leaders, and new parties were established.Footnote 47 Post-war Italy is often labelled a fragmented consociational democracy, although one characterised by a certain degree of polarisation.Footnote 48 After the regime crisis, polarisation was strongly magnified, favoured by the 1993 reform of the Chamber of Deputies’ and the Senate’s electoral systems, which prompted the rise of an imperfect majoritarian democracy.Footnote 49 The judiciary settled at the centre of the political struggles, and clashed with the political classes, especially with the centre-right parties. This sparked the demand for institutional adjustment by the same parties. The judiciary and the centre-left parties offered resistance to these demands.
Over the last 25 years, political debate and legislative initiatives have touched upon various judicial accountability dimensions. But before this article zeroes in on the three accountability mechanisms, it will analyse the changes within the Consiglio superiore della magistratura itself.
Judicial council: a flexible institution at the core of the reform debate
The foundations
According to the constitutional and legal norms and principles, the Consiglio superiore della magistratura is the main actor in the administration and governance of the judiciary. Launched in 1959,Footnote 50 its tasks include judicial appointments, assignments, transfers, promotions, and disciplinary measures.Footnote 51
The Consiglio superiore della magistratura has a mixed composition.Footnote 52 Judges elect two-thirds of its members from among their peers, and Parliament in joint session elects the remaining third by two-fifths majorityFootnote 53 from among law professors and advocates with at least 15 years’ experience. The Constitution also provides for de jure members: the President of the Republic, the First President of the Court of cassazione (Italy’s Supreme Court), and the General Prosecutor. The President of the Republic, an impartial authority with important political powers within the Italian government, holds the presidency of the council. The council designates a vice-president from among those members elected by Parliament.
This complex institutional arrangement was justified by the need to protect judicial independence in a state in which judges’ subordination to the executive was traditionally coupled with their weak roots in society.Footnote 54 It was the outcome of a difficult compromise between multiple political and judicial actors. The resulting body is characterised by its mixed legitimacy. The prevailing internal legitimacy derives from the majority of its members being judges, but is attenuated by the conferral of the vice-presidency on the member elected by the Parliament, who acts as chair on a daily basis, in strict collaboration with the President of the Republic who holds the formal chairmanship. This configuration allows for a flexible balance between autonomy and indirect influence by the political environment.Footnote 55
Over the years, the balance between autonomy and outside influence has shifted. The Minister of Justice, for instance, initially had an exclusive right to initiate any procedure allowing the Consiglio superiore della magistratura to exercise its competencies regarding promotions and appointments to specific functions.Footnote 56 The Minister retained this important power until 1963, when the Constitutional Court limited its exclusive nature.Footnote 57 Furthermore, for the appointment of heads of court, the Minister’s consent was necessary.Footnote 58 More precisely, according to the law, the Consiglio superiore della magistratura appoints court presidents on a proposal formulated by its competent committee ‘in concert with the Minister of Justice’.Footnote 59 In 1992, however, the Constitutional Court made it clear that the notion ‘in concert’ does not involve a veto power of the Minister, even though the competent committee must truly and fairly seek agreement.Footnote 60 In other words, ‘in concert’ does not pertain to the outcome of the decision, but to the procedure and the method by which the outcome is determined.
The vicissitudes and the very functioning of the Consiglio superiore della magistratura depend greatly on the choices made with regard to the system for selecting members elected by judges from among their peers (‘judicial component’), foreseen in the law establishing the council.Footnote 61 The Consiglio superiore della magistratura was from its beginnings a body in which judges of the Supreme Court predominated. This was the result of a category-based system for the election of judges that favoured the top ranks of the judicial hierarchy.Footnote 62 Consequently, the council had a strong hierarchical outlook that improved internal accountability and involved a certain degree of internal dependence.Footnote 63 At least hypothetically, junior judges were pressed to follow the case law of the Court of cassazione, aware that deviations from that Court’s views could bear consequences for their careers. The judicial hierarchy was therefore able to determine career advancement through the Italian Supreme Court-dominated Consiglio superiore della magistratura.
The struggle over the judicial council’s representation
The system for electing judicial members of the council underwent significant reform in the late 1960s and early 1970s.Footnote 64 First, the category-based system of representation was abandoned. Before 1967, magistrates could vote only for candidates belonging to their own category; now magistrates were allowed to vote for candidates from any category. Higher magistrates could therefore only be elected with the support of lower ranking magistrates. In 1975, the majority principle was replaced by a system of proportional representation within a single national constituency. This required the presentation of lists of candidates by magistrates.Footnote 65
Lower judges assembled within judicial associations strongly supported these reforms. They justified their position by the wish to eliminate the hierarchical appearance of the Consiglio superiore della magistratura and enhance its democratic character.Footnote 66 Furthermore, the potential diversification of its judicial members was thought to allow for mutual checks and balances among the representatives of the National Magistrates’ Association’s correnti in the council and to improve the council’s decision-making autonomy. In terms of accountability, while the system still prioritised internal accountability, it now responded to a pluralist logic. The distribution of power within the judiciary changed by disempowering the higher judiciary in favour of rank-and-file judges and changed the functioning of internal accountability. Judges were no longer accountable to top court judges, but to their colleagues within the same court or district. Thus, the traditionally hierarchical system of accountability was replaced by a more complex system in which the correnti took centre stage through their representatives within the Consiglio superiore della magistratura.
However, in the long-term the ideas of checks and balances and enhanced decisional autonomy were challenged by the increasingly fossilised influence of judicial associations and the politicisation of the Consiglio superiore della magistratura due to the proportional system of representation (upon which basis the associations’ political affiliation became the dominant factor). The former was particularly apparent, among other reasons, because of the phenomenon of the so-called ‘lottizzazione’, i.e. informal agreements concluded among judicial associations during the appointment process to share vacant positions within the judiciary amongst themselves.Footnote 67
Since the mid-1980s several proposals have been tabled to change the electoral system. In 1985, the Christian Democrats – by then the largest governing party – launched a proposal aimed at neutralising the power of judicial associations within the Consiglio superiore della magistratura.Footnote 68 The following year, a request for a referendum on electoral norms of Law n. 195/1958 establishing the Consiglio superiore della magistratura was put forth, but the Constitutional Court rejected the possibility of a referendum on this subject.Footnote 69 The electoral system was modified in 1990.Footnote 70 The new Law replaced, among other things, the national electoral district with four territorial districts.Footnote 71 The purpose was to favour territorial rather than politico-ideological representation in order to de-structure judicial associations and to reduce the council’s politicisation. However, the law merely had the effect of stabilising the existing equilibrium among judicial associations thereby limiting internal pluralism. The introduction of a 9% electoral threshold in fact favoured the major, already-existing associations.Footnote 72
Further attempts at reform failedFootnote 73 until 2002.Footnote 74 Technically, the new law adopted in that year abolished the system of proportional representation with the lists affiliated with judicial associations. It introduced a majority system within a re-established single national electoral district.Footnote 75 The first objective of the law was to align the election of the judicial members of the council with the system for the election of members of Parliament, and thus to achieve systematic coherence with provisions regulating the formation of the legislative branch. However, it is difficult to see why the council’s judicial members’ electoral system needed fine-tuning to make it correspond with the electoral system of Parliament, as the two bodies had different goals. A second objective of the law was to facilitate the formation of stable majorities within the council, but, again, this objective was open to criticism, as there was no real need for stable majorities in the Consiglio superiore della magistratura as there was in parliamentary bodies. The real, more or less hidden, reason for reform was in fact the wish to tackle the fossilised influence of judicial associations. In this respect, however, the reform was totally ineffective due to the reintroduction of a national electoral constituency, which gave greater control to nationally-structured associations (while the parcelling of electoral districts favoured, at least theoretically, smaller and newly-established associations).
In order to properly contextualise and understand the outlined reform, it needs to be added that, in the meantime, council jurisdiction had expanded. Instead of a ‘mono-functional’ body focused on managing judicial careers it became a multi-functional body with increased powers.Footnote 76 The new powers included administrative competencies relating to court administration,Footnote 77 which in some cases had a normative or ‘para-normative’ character;Footnote 78 the coordination of the criminal policies of public prosecutors;Footnote 79 advisory powers relating to judicial policies (acts and regulations);Footnote 80 and public statements.Footnote 81 Overall, this magnified the power of the Consiglio superiore della magistratura in the political arena.
Judicial career: dismantling the hierarchy
As mentioned above, the career system of the Italian judiciary follows the bureaucratic model. Hence, judges are recruited at a relatively young age after graduation from law school. According to Article 106 of the 1948 Constitution, ‘[j]udges are appointed through competitive examinations’.Footnote 82 The same article states that ‘[f]ollowing a proposal by the judicial council, university professors in the field of law and lawyers with fifteen years of practice and registered in specific professional rolls for higher courts, may be appointed for their outstanding merits as Supreme Court judges in Italy’. This provision was implemented only 50 years later,Footnote 83 and the number of judges recruited in this way is still small.Footnote 84 One reason for this is the judicial domination of the Consiglio superiore della magistratura, whose corporatist attitude prevented the opening up of judicial recruitment. In 2001, a new law was enacted to allow a second alternative recruitment channel, this time for lawyers with a certain amount of experience.Footnote 85 However, the judiciary de facto remains a highly restricted profession with a single, traditional recruitment channel.
The career system is structured by Article 107(3) of the Constitution. It establishes that ‘[m]agistrates are distinguished only by their different functions’. A broad interpretation of this provision since the mid-1960s led to the progressive abolition of judicial ranks.Footnote 86 Within this system, judges can be formally promoted to a higher position and gain salary increases, even though they retain the same (lower) function.Footnote 87 Formal positions are not indeed limited in number – this is why it is labelled as system of ‘open positions’ (‘ruoli aperti’).Footnote 88
The promotion to higher positions was originally based on seniority rather than on substantive criteria, since public competitive scrutiny was abolished and judges’ evaluations did not take place on a regular basis.Footnote 89 Consequently, promotions to higher positions became de facto automatic. Scholars described this system succinctly as ‘promotion without demerits’, to indicate that automatism was blocked only in cases of evident faults.Footnote 90 In fact, this system had initially positive effect since it greatly contributed to the emancipation of judges from the judicial hierarchy. However, it generated side effects in the long run. Automatism strongly weakened accountability for career advancement to higher formal positions, which in turn negatively affected magistrates’ professionalism in practice. At the same time, the Consiglio superiore della magistratura, dominated by judicial associations, retained huge leeway in making appointments to specific functions, which strengthened internal accountability.Footnote 91
In order to counteract these two tendencies, the Parliament approved two general reforms between 2005 and 2007.Footnote 92 While maintaining the seniority rule for advancement, the 2005 law introduced a merit-based assessment through written and oral examinations for promotion to a higher position. The 2007 law improved the system by introducing a regular evaluation process.Footnote 93 The law also created a commission made up of judges, university professors, and qualified lawyers to assist the Consiglio superiore della magistratura in assessing scientific analytical competencies and skills necessary to be appointed as a Supreme Court judge.Footnote 94 Finally, it introduced the rule that court presidents are appointed for four years, with the possibility of reappointment for four more years.Footnote 95 Overall, the 2005-2007 reforms, which were approved by a centre-right and a centre-left majority respectively and witnessed a coincidence of intents, have proven to be ineffective mainly due to internal resistance against implementation. Only the measures aimed at regulating assessment for appointing heads of courts or members of the Supreme Court were successful.
Disciplinary responsibility: the long journey distancing itself from its bureaucratic approach
The Constitution gives the Consiglio superiore della magistratura the power to adopt disciplinary measures against magistratesFootnote 96 upon the initiative of the Minister of Justice.Footnote 97 The law also confers the General Prosecutor with the power to initiate disciplinary procedures.Footnote 98 The disciplinary section of the Consiglio superiore della magistratura consists of the vice-president of the council (a non-judicial member elected by the Parliament), who presides over it, and five members, four of whom are magistrates.Footnote 99 According to legal scholarship, the disciplinary accountability framework is a constitutional (and not merely a bureaucratic) structure, since it involves the collaboration of the three state powers:Footnote 100 the Minister of Justice initiates the procedure based on the general framework for disciplinary offences and procedural guarantees set by the Parliament, while the Consiglio superiore della magistratura (rectius, its disciplinary section) is in charge of the disciplinary decisions. However, the original framework is characterised by a certain ambiguity.
Only in a 1971 decision has the Constitutional Court explicitly acknowledged the jurisdictional character of the disciplinary procedure.Footnote 101 The Court stated that the disciplinary section is equivalent to a court (which explains the appeal to the Supreme Court, which decides upon it in joint session)Footnote 102 and that ‘the law, through explicit and unambiguous provisions, conferred jurisdictional character to the function carried out by the disciplinary section’.Footnote 103 Nevertheless, hearings were not public. The Consiglio superiore della magistratura did not introduce the possibility of public hearings until 1985, and a law formalised the principle of public hearings only in 1990.Footnote 104
According to Article 107(1) of the Constitution, a judge may be suspended or assigned to a different function following a decision taken based on rules set by a law. Still, disciplinary offences had not been clearly defined until recently. Article 18 of the Royal Decree n. 511 of 1946 merely provided that a judge may be disciplined when he or she fails to maintain the duties of the office, shows untrustworthy and/or inconsiderate behaviour, or damages the reputation (‘prestigio’) of the judiciary.Footnote 105 In practice, even the most serious breaches of professional competencies, unless externally disclosed, were considered irrelevant, contrary to minor breaches that could harm the prestige of the judiciary.Footnote 106
The disciplinary section of the Consiglio superiore della magistratura had to fill in these very vague concepts (duties of the office, untrustworthy behaviour, reputation of the judiciary) in accordance with its own opinions.Footnote 107 This had two consequences. First the normative and the jurisdictional dimensions de facto became blurred within the disciplinary section, seriously undermining its impartiality.Footnote 108 Second, corporatist consensus among judicial associations (represented in the disciplinary section) favoured loose definitions of disciplinary offences, making the system ineffective and causing disciplinary responsibility to go underused.
In reaction, the Italian Parliament somewhat formalised the definitions of disciplinary offences in 2005 and 2006. It is noteworthy that this was also the consequence of a 2001 European Court of Human Rights decision which criticised the lack of foreseeability of disciplinary offences.Footnote 109 The law also increased the Minister’s powers for the procedures in disciplinary investigations and indictments.Footnote 110 In turn, it addressed the ‘legalisation’ of disciplinary procedure, regarding the right to defence and the public viewing of hearings, cancelling all traces of a typical bureaucratic form of jurisdiction.Footnote 111
Civil liability: the untouchable judges – and their demise?
Civil liability can be a mechanism for holding judges accountable for the exercise of their judicial functions. Here we must distinguish between State liability and individual liability.Footnote 112 In Italy, the State’s liability traditionally overshadows individual liability. Individuals cannot sue judges directly; they can hold only the State liable for the misdeeds of a judge. Until 1988, the State could sue judges only in a very limited array of situations compared with other civil servants, and only as a right of recovery in case the State itself had been sued for a judge’s behaviour.Footnote 113
Articles 55, 56, and 74 of the (still in force) 1940 Code of Civil ProcedureFootnote 114 confined a judge’s civil liability to wilful misconduct, fraud, or misfeasance (‘dolo, frode o concussione’), and unreasonable refusal, omission, or delay in accomplishing a required procedure or legal obligation.Footnote 115 Individual complaints required the Minister of Justice’s authorisation to start the procedure to determine a judge’s liability. If authorisation was given, the Supreme Court selected the competent judge.Footnote 116
In 1987, a referendum was held to repeal the aforementioned articles of the Code of Civil Procedure with the aim of pushing Parliament to introduce the direct civil liability of judges in case of gross negligence (‘colpa grave’). This initiative followed a striking episode of poor administration of justiceFootnote 117 as well as criticism from sectors of the political élite irritated by supposedly politically-biased public prosecutions of party members. The referendum resulted in the abrogation of Articles 55, 56, and 74 of the Italian Civil Code, which created a legal gap that Parliament was called upon to fill.Footnote 118
Parliament subsequentlyFootnote 119 maintained the principle that individuals can sue only the State, but extended the number of cases in which the State, within one year after it has paid compensation, can take recourse against a judge. Liability is incurred when the individual suffers material or non-material damage that is caused not only by wilful misconduct (‘dolo’) or a denial of justice, but also in case of gross negligence (‘colpa grave’).Footnote 120 Thus, even unintentional acts can give rise to civil liability.Footnote 121 The new law also established a ‘safeguard clause’ (‘clausola di salvaguardia’), according to which interpretations of legal provisions and assessments of facts and evidence can give no occasion for civil liability.Footnote 122 The act also codified the rights of the defendant judge and introduced a stricter procedure for the selection of the competent judge.Footnote 123 Moreover, a declaration of admissibility of the claim by the tribunal replaced the Minister’s authorisation.Footnote 124
Scholars consider the overall impact of the 1988 Law to be minimal.Footnote 125 First, not only was the extension of the second-degree liability of judges very restrictive, but it also contradicted the underlying rationale of the 1987 referendum by maintaining the inability to sue judges directly. Indeed, the heated debate preceding the referendum addressed the increase of individual judges’ accountability by introducing direct civil liability, not just the need to grant compensation to individuals who had suffered damage(s). Second, the judges themselves impeded the reform by interpreting the new provisions in a highly restrictive way. This had bearing on and affected all phases of the legal process, from the declaration of admissibility to the actual judging of individual liability.Footnote 126
Dissatisfaction with the legislative outcome of the 1987 referendum alone does not explain why civil liability has since often entered the political debate. Another explanation lies in the tide of judicial activism known as Mani pulite (Clean hands), that contributed to the legitimacy crisis of the political elite in the first half of the 1990s,Footnote 127 and that continued the subsequent 20 years, exacerbating the conflict between the judiciary and Berlusconi’s newly-founded party.Footnote 128 New referendum proposals were submitted in 1996 and 1999, but were rejected by the Constitutional Court for lack of clarity inherent to the question.Footnote 129 Centre-right parties used the possibility of reforming the legislative framework as a threat against the judiciary.Footnote 130 Governmental bills attempted to introduce direct judicial liability for fraud and to simplify the procedure in cases of gross negligence. The main centre-left party also called for reform, but in a more balanced way, while judicial associations strongly opposed it. At stake were not just citizens’ rights, i.e. the protection of citizens against miscarriages of justice and the ability of citizens to demand compensation even in cases of negligence, but also a just balance between justice and politics. Many asserted that episodes of judicial over-zealousness risked – and in some cases actually led to – influencing political dynamics.Footnote 131
In the end, internal and external pressures resulted in the adoption of a new law on civil liability in February 2015.Footnote 132 The law maintained the principle of the indirect liability of judges. However, it limited the ‘safeguard clause’ and broadened the categories of gross negligence and wilful misconduct.Footnote 133 It also removed the filter for the admissibility of the complaintFootnote 134 and made the complaint of the State against individual judges (in case the State itself had been convicted for the behaviour of the judge in question) mandatory and stricter.Footnote 135 Although the law did not fundamentally alter the civil liability framework, it marks a further step toward the increased civil liability of judges. The impact of the law still needs to be assessed, but the dogma of individual non-liability is fading away.
Conclusion
The previous sections focused on Italian reforms in three crucial areas for judicial accountability. They shed light on how the judicial accountability framework has changed over time and the conditions under which this happened. Leaving aside any consideration as to what the right balance in the judicial accountability framework should be, the Italian experience indicates the dynamism of such a balance.Footnote 136 In Italy, this balance shifted between the 1950s and the 1980s from a hierarchical system blending external accountability to the executive with internal accountability to the higher judiciary, to a framework of prevailingly internal accountability rooted in the centralisation of the judiciary’s management of the (by the judicial associations dominated) Consiglio superiore della magistratura. Against this situation marked by institutional imbalance, a reaction followed starting in the second half of the 1980s, attempting to strengthen judicial accountability.
Collectively, the reforms adopted in the last 20 years followed three directions and revealed the underlying tension regarding accountability. First, they aimed to reduce the power of judicial associations within the Consiglio superiore della magistratura and to counter internal accountability. Second, they aimed to improve professional accountability, limitations to which stem from both out-dated recruitment mechanisms and the crystallisation of the seniority rule for career advancement. Third, they ‘legalised’ the disciplinary procedure and made individual civil liability effective.Footnote 137
This shows that the issue of reforming the institutional framework to adjust the balance must be addressed from time to time. To be sure, Italy is exemplary in this regard, yet it is not an exception. Similar dynamics characterise countries where politico-judicial relations are complex, a lack of homogeneity within the political and the judicial elites exists, or the party system lacks consolidation. While exceptional in this regard, the backlash in countries such as Hungary and Poland can be interpreted to an extent within this framework.Footnote 138 However, this trait is not unique to unstable or weakly-consolidated democracies.Footnote 139
Therefore, this article argues that it is difficult to ensure a proper and stable balance in the accountability framework and to define any balance ex ante and generally, due to the naturally unstable socio-political background and changing centre of gravity in politico-judicial relations. One will not achieve a proper balance in the accountability framework by the implementation of one-size-fits-all (and all-time) templates; rather one should try to achieve a substantive equilibrium among the relevant actors in a specific context. Judicial accountability (like judicial independence) is neither a dogma nor a unitary concept, but an instrumental and multidimensional concept which needs to be in accordance with underlying socio-political conditions. Moreover, as the balance changes over time, institutional arrangements and relationships evolve, and judicial government bodies are among some of the most important, one should reassess the balance from time to time.
This brings us to the lessons from the Italian-derived judicial council template. This article demystifies the myth about the Italian ‘self-government’ body in two ways. On the one hand, since its inception in 1948, the Consiglio superiore della magistratura was designed to ensure judicial accountability and not merely (external) judicial independence.Footnote 140 As a mixed institution, the council was indeed flexible enough in drawing up a satisfactory accountability balance.Footnote 141 The flexibility of the Italian judicial council template, which explains its success and persistence over space and time,Footnote 142 also makes it clear that – paraphrasing Adrian Vermeule – the council is a ‘many’, not a ‘one’.Footnote 143 This is emphasised by the diverging perceptions of the Consiglio superiore della magistratura that, under a stable constitutional umbrella, underwent various changes over time. Today, the European institutional landscape is populated by a variety of such institutions that, under the ‘judicial council’ classification, work as tools with several functions, even with divergent utility and accountability rationales.
In short, the Italian example shows that flexibility is necessary to create a complex institutional framework in harmony with domestic conditions. From a normative perspective, what truly matters in accountability arrangements is the existence of a ‘system of checks and balances … which prevents any principal from taking control of the majority of the accountability mechanisms’.Footnote 144 This consideration mirrors the stress placed by Italian legal scholarship on the importance of the composite structure of the Consiglio superiore della magistratura.Footnote 145 The council’s mixed composition was indeed essential to its proper functioning, and resulted from the constitutional and legal provisions first, but also from the social conditions of the judiciary and the political contexts.Footnote 146
This need to take the social conditions of the judiciary and the political contexts into account also puts the concept of the judicial council as a body made up of a majority of magistrates into perspective. The rationale behind the creation of the judicial council may lie in the principle of self-government, but can also have roots in the principle of a balance among powers. Looking at the council as a tool of judicial independence, without referring to its mixed judicial accountability, leaves an inaccurate or partial understanding of this body.
This is actually a major problem of Opinion No. 18 (2015), mentioned in the first paragraphs of this article. In its commendable praise for increased accountability of the judiciary, the advisory body of the Council of Europe unfortunately approaches judicial councils only as ‘representatives of the judiciary’.Footnote 147 While this is not in itself totally wrong, it insufficiently defines the nature of judicial councils and fails to address the ultimate premise for their establishment. In turn, Opinion No. 10 (2007) of the Consultative Council of European Judges, on judicial councils rightly stresses the mixed nature of the councils and the relevance of electing judicial members (a principle that is supposed to allow pluralism, even though the Italian case warns against such immediate correlation). Still, the principle that judges should be the majority may prove too rigid, also in consideration of the structural information asymmetries in their favour. Imposing a template may limit the councils’ main assets: their flexibility and a mixed composition. In this regard, the Action Plan of the Council of Europe on strengthening judicial independence and impartiality displays more cautiously reasoned formulations when it comes to judicial councils.Footnote 148
Scholars have therefore rebuked the problematic transplant of a ‘strong’ and judicially-dominated council in countries lacking significant segmentations within relatively small judiciaries, or where powerful judicial actors such as court presidents exist.Footnote 149 Institutional solutions need fine-tuning within their respective context. Several aspects are critical in this respect: awareness of the social structure of the judiciary, of its size, and of its internal segmentations, of the relevant agents and internal dynamics, of the relationships of their components within the broader political arenas and the structure of the political system. It is necessary to emphasise once more that the very features of any alleged accountability framework are based on historical legaciesFootnote 150 as well as on the social and political background, since judiciaries are not monolithic bodies, but are internally marked by social and institutional segmentation.Footnote 151
A proper understanding of existing councils and their internal structures in relation to these contextual elements is necessary. Identifying these conditions, to which little attention has been devoted, should be a task of future scholarship in this field. This would allow an assessment of conformity to substantive principles rather than to formal templates.
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