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September 04, 2004

Judicial Independence in Italy

I went to an interesting lecture by Giovanni Kessler on "Judicial Independence
in Contemporary Italy". Kessler was a prosecutor in Trent from 1986 to 1994 and
in the anti-Mafia department in Sicily in 1994-95,and is now an M.P. Here are my
observations from his talk (not necessarily all accurate-- these are from my


1. The postwar Italian Constitution put judges and prosecutors in the same
category, separate from the executive branch.

2. Since 1959, a Judicial Council, 1/3 appointed by Parliament, 2/3 elected by
judges and prosecutors, has administered careers. Since 1963, the part elected
by judges and prosecutors has been by proportional representation, not first-by-

3. There is a "principle of irremovability of position and function"--
apparently, you can't transfer a judge against his will without special
circumstances. But a judge can be promoted to a rank with a higher salary
without moving courts.

4. Only the Judicial Council can replace a prosecutor on a case-- even a junior
prosecutor. Berlusconi has proposed changing this to allow senior prosecutors to
overrule junior ones, as in the US.

5. Around 1992, prosecutors started putting lots of politicians in jail, and
public opinion favored them. By now, public opinion is hostile to prosecutors,
they having gone after Berlusconi very hard.

6. Berlusconi has been fighting the judiciary in various ways. He's tried to
change laws to make cases moot and to make structural changes.

7. Elections for the judicial council are a big deal, with groups (not the
normal political parties, though) putting up formal slates of candidates they

Now that I think about it, I'm still not clear about how the system works.
Here are questions I'd like to know the answers to (for both prosecutors and

A. Suppose a prosecutor maliciously brings a false case against a politician he
dislikes. If the judicial council also dislikes the politician, does the
politician have any recourse?

B. What if the judicial council likes the politician in scenario A?

C. Suppose a prosecutor is lazy and does a bad job. Will the judicial council
punish him in any way? Transfers seem not to be allowed. How about not giving
him salary increases?

My impression is that the judiciary is self-governing, by majority rule, so
that if judges as a group want to be unfair, they are free to be unfair, adn to
punish any judge who goes against the desires of the majority. It isn't clear
whether this will lead to incentives to be hard-working or not-- in labor
unions, this kind of system favors the lazy, in the Japanese judiciary, it
favors the hard-working; in universities, it seems it can go either way.

One thing the talk confirmed: that people tend to look at the wrong things
when they think about judicial independence. What you ought to do is keep your
eye not on the formal rules, which always say independence is good and judges
ought to follow the law and do justice, but on what happens to judges who (a)
are lazy, (b) are corrupt, or (c) interpret laws in ways that other people--
the citizens, other judges, politicians, anybody else-- think are unjust. One
way to tell if someone's normative analysis is likely to be useful is to ask
whether it addresses the tradeoff between the good incentives for hard work,
that you get with less independence and the good incentives to apply unpopular
laws as they are written that you get with more independence. That is not all
there is, but that's a particularly simple test.

Posted by erasmuse at September 4, 2004 10:37 AM

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