Letter from Rome

Judges on strike over constitutional changes ... Independence of prosecutors at stake ... Too much "reform" ... Berlusconi legacy ... Referendum on the way ... Constitutional court inflames the Meloni regime with decision on boat people ... Insults galore ... Silvana Olivetti reports 

What a week in Italian law and politics.

It started on February 27 with the judges' national one-day strike to protest proposed constitutional changes that would reduce the independence of the prosecuting magistrates - in particular when it comes to investigating corrupt politicians.

It ended on March 6 with a ruling by Italy's highest court – in a decision that could also create waves in Australia – that the Italian government was civilly liable in relation to boat people refugees who were detained on board the Italian Coast Guard Ship Eighteen. 

It was held that this was a breach of the international humanitarian and legal duty to aid those in peril at sea. The decision opened up another front in the war against "red judges", with personal attacks on these senior judges made by various members of the Meloni government, attacks seen by some as an attempt to de-legitimise judges and also to distract attention from the government's domestic and foreign policy issues.

The judges' strike and constitutional amendments 

The judges' strike on February 27 went off smoothly, with an estimated 80% of judges participating. 

The judges held silent protests, holding copies of the Constitution in their hands. The talking was left to the spokespersons from the national judges' association (the ANM) and to speakers at various talkfests. 

In particular, retired judge and now best-selling author of crime fiction Gianrico Carofiglio spoke in support of the strike by his former colleagues.  

Former judge Carofiglio - a matter of principle 

However he cautioned that it was important for the judges to show the public that this was a matter of principle and not one of just defending established privilege, because the word "privilege" would be the one word that remained in the listener's memory. 

The proposed changes have two important parts. One is to remove the judicial status and independence from prosecutors, currently guaranteed to them in the Italian Constitution. The other is to change the way the judiciary runs its own disciplinary  process.

When Silvio Berlusconi was Italian Prime Minister he passed a series of self-serving pieces of national legislation. 

He fiddled so much with the Statute of Limitations legislation that six cases against him came to end. As a back-up plan, he introduced at law that no-one over the age of 75 should be sentenced to full-time imprisonment. 

He was 76 when he was finally convicted of something in 2012. However, he did not succeed in weakening the independence of the prosecuting magistrates.

A meeting between the magistrates' association and the government to discuss the amendments ended without agreement on March 5. The changes will now be put to a national referendum. 

The Italian Constitution can and has been amended by agreement in the parliament. However, if there is a public call for it, then constitutional amendments are put to a national referendum. 

Since 1947 four proposals have gone to a referendum. Two proposals were passed – one reducing the number of parliamentarians by one-third and the other giving greater autonomy to regional governments. 

Berlusconi with girlfriend Marta Fascina 

Two have failed – one proposed abolishing provincial governments and the other, during the time of Prime Minister Berlusconi, proposed giving more powers to the Prime Minister. 

Various law professors support the judges' criticism of the changes that could put the power to investigate and prosecute under the control of the executive government. 

Political opposition to the constitutional amendments is hard to find, especially since the left-wing parties have become so factionalised. 

Lawyers do not support the judges on this issue. Lawyers and their national representative body - Consiglio nazionale forense [CNF] and association of criminal lawers, L'Unione della Camere Penali Italiane - argue that the closeness between judges and prosecutors is unfair to accused persons, and they support the separation of the judges and investigating judges. 

In response it is said that the 50% acquittal rate in Italian criminal proceedings shows that judges are not in the prosecutors' pockets.  

There is also concern that judicial misbehaviour or incompetence is not sufficiently punished, a feeling inflamed by the current enthusiasm for populism and attacks on those seen to be elitist. 

Even former judge Gianrico Carofiglio urges that there is a need for some internal reform.

Everyone agrees that these amendments are not the substantive reforms needed to speed up litigation and adequately resource the criminal justice system.

Holding the government civilly liable for the detention of boat people  

Government criticism of judges was inflamed this week by the decision of the Italian Supreme Court (known as the Cassazione)  on March 6 which held that the government was liable to pay damages for the unlawful detention of a group of boat people.

The decision contains a remarkable summary of the ancient duty, the common law, and all the international agreements on the duty to assist those in peril at sea.  

The court held that that duty to save extended to ensuring the prompt disembarkation of the survivors to a safe place, and that the duty to save was not completed until that occurred. Hence the detention of refugees on board the Coast Guard ship for 10 days was a breach of that duty. 

Judges of the Cassazione

The decision would make interesting reading for many Australian politicians and supporters of "stop the boats". 

The considered judgment (40 pages) provoked immediate personal attacks on the judges by various members of the Meloni government. The most bitter comments came from Deputy Prime Minister and former Minister for the Interior Matteo Salvini, who had been charged with, but in December last year acquitted of, the criminal offences of kidnapping and dereliction of duty in relation to refusing to let another shipload of refugees land.

The President of the Court of Appeal responded to the criticisms, saying that while criticism of court judgments was expected that personal insults were unacceptable and that these criticisms challenged the division of powers upon which the country was founded.