The judiciary in the Italian political crisis

West European Politics

Volumn 20, Issue 1, 1997, Pages 157-175

  Guarnieri, Carlo ^a  

^a NONE

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EID: 0344059426     PISSN: 01402382     EISSN: None     Source Type: Journal    
DOI: 10.1080/01402389708425179     Document Type: Article

References (46)

1. The general traits of the judiciary in civil law countries are presented in John H. Merryman, The Civil Law Tradition (Stanford UP 1985) pp.35-9. For a fuller account of the characteristics of Italian judicial personnel see Giuseppe Di Federico and Carlo Guarnieri, 'The Courts in Italy', in Jerold L. Waltman and Kenneth M. Holland (eds.) The Political Role of Law Courts in Modern Democracies (London: Macmillan, 1988), pp.161-70. In Italy, as in France, the term - magistratura - refers to personnel who are able to perform both prosecuting and judicial roles. It goes without saying that Italian magistrates must not be confused with English magistrates, i.e. lay judges.
2. The general traits of the judiciary in civil law countries are presented in John H. Merryman, The Civil Law Tradition (Stanford UP 1985) pp.35-9. For a fuller account of the characteristics of Italian judicial personnel see Giuseppe Di Federico and Carlo Guarnieri, 'The Courts in Italy', in Jerold L. Waltman and Kenneth M. Holland (eds.) The Political Role of Law Courts in Modern Democracies (London: Macmillan, 1988), pp.161-70. In Italy, as in France, the term - magistratura - refers to personnel who are able to perform both prosecuting and judicial roles. It goes without saying that Italian magistrates must not be confused with English magistrates, i.e. lay judges.
3. For a fuller account of these developments see Carlo Guarnieri, Magistratura e politica in Itatia (Bologna: Il Mulino 1993) pp.87-108. For an analysis of the political and institutional developments of post-war Italy see David Hine, Governing Italy (Oxford: Clarendon Press 1993).
4. For a fuller account of these developments see Carlo Guarnieri, Magistratura e politica in Itatia (Bologna: Il Mulino 1993) pp.87-108. For an analysis of the political and institutional developments of post-war Italy see David Hine, Governing Italy (Oxford: Clarendon Press 1993).
5. Between 1959 and 1975 the body was composed of 24 members: besides the three exofficio, there were 14 magistrates and seven members elected by Parliament. The judicial component was elected with a majoritarian electoral law which tended to overrepresent the higher ranks.
6. For these developments, see G. Di Federico, 'The Italian Judicial Profession and its Bureaucratic Setting', The Juridical Review 1 (1976) pp.40-57; Giorgio Freddi, Tensioni e conflitto nella magistratura (Bari: Laterza 1978); Di Federico and Guarnieri (note 1).
7. For these developments, see G. Di Federico, 'The Italian Judicial Profession and its Bureaucratic Setting', The Juridical Review 1 (1976) pp.40-57; Giorgio Freddi, Tensioni e conflitto nella magistratura (Bari: Laterza 1978); Di Federico and Guarnieri (note 1).
8. Judicial decisions applying the Workers' Statute, a law issued in 1970, were highly influential in this change of perception. Magistratura Democratica has played a very important role in ensuring the full implementation of the rights established in the Statute. See Tiziano Treu (ed.) Lo Statuto del lavoratori: prassi sindacali e motivazioni dei giudici (Bologna: Il Mulino 1976).
9. In the same years the party organised throughout Italy a series of meetings - attended by many lawyers, politicians and, above all, magistrates - on the reform of judicial organisation. See La riforma dell'ordinamento giudiziario (Roma: Editori Riuniti, 1977).
10. The electoral law was slightly modified in 1990, but with no important implications for this analysis.
11. We have to remember that the Higher Council is presently composed, outside of the 20 magistrates elected by the corps, of 10 lawyers or law professors chosen by Parliament, usually along strict party lines. See G. Di Federico, 'Le qualificazioni professionali del corpo giudiziario: carenze attuali, possibili riforme e difficoltà di attuarle', Rivista trimestrale di scienza dell'amministrazione 32/4 (1985) pp.21-60; Giorgio Rebuff, La funzione giudiziaria (Torino: Giappichelli 1993) pp.91-8.
12. We have to remember that the Higher Council is presently composed, outside of the 20 magistrates elected by the corps, of 10 lawyers or law professors chosen by Parliament, usually along strict party lines. See G. Di Federico, 'Le qualificazioni professionali del corpo giudiziario: carenze attuali, possibili riforme e difficoltà di attuarle', Rivista trimestrale di scienza dell'amministrazione 32/4 (1985) pp.21-60; Giorgio Rebuff, La funzione giudiziaria (Torino: Giappichelli 1993) pp.91-8.
13. MG was formed by splinter groups of MI and UC.
14. Includes some short-lived moderate and conservative factions.
15. See Salvatore Lupo, Storia della mafia (Roma: Donzelli 1993); Romano Canosa, Storia della criminalità in Italia dal 1946 a oggi (Milano: Feltrinelli 1995). On organised crime in Sicily, see, e.g. Pino Arlacchi, 'Mafia: The Sicilian Cosa Nostra', South European Society and Politics 1/1 (Summer 1996) pp.74-94.
16. See Salvatore Lupo, Storia della mafia (Roma: Donzelli 1993); Romano Canosa, Storia della criminalità in Italia dal 1946 a oggi (Milano: Feltrinelli 1995). On organised crime in Sicily, see, e.g. Pino Arlacchi, 'Mafia: The Sicilian Cosa Nostra', South European Society and Politics 1/1 (Summer 1996) pp.74-94.
17. See Salvatore Lupo, Storia della mafia (Roma: Donzelli 1993); Romano Canosa, Storia della criminalità in Italia dal 1946 a oggi (Milano: Feltrinelli 1995). On organised crime in Sicily, see, e.g. Pino Arlacchi, 'Mafia: The Sicilian Cosa Nostra', South European Society and Politics 1/1 (Summer 1996) pp.74-94.
18. See Francesca Zannotti, La magistratura. Un gruppo di pressione istituzionale (Padova: Cedam 1989); and 'The Judicialization of Judicial Salary Policy in Italy and the United States', in C. Neal Tate and Torbjörn Vallinder (eds.) The Global Expansion of Judicial Power (NY UP 1995) pp.181-203. It is interesting to note that the ANM was able to get the support of the trade unions movement for its demands for higher salaries. See Guarnieri (note 2) p.144.
19. See Francesca Zannotti, La magistratura. Un gruppo di pressione istituzionale (Padova: Cedam 1989); and 'The Judicialization of Judicial Salary Policy in Italy and the United States', in C. Neal Tate and Torbjörn Vallinder (eds.) The Global Expansion of Judicial Power (NY UP 1995) pp.181-203. It is interesting to note that the ANM was able to get the support of the trade unions movement for its demands for higher salaries. See Guarnieri (note 2) p.144.
20. In 1981 Roberto Calvi, the chief executive of the Ambrosiano bank - one of the major private banks in Italy - was arrested for violating the currency control law. The Socialists sharply criticised the magistrates of Milan in charge of the case and advocated a reform of the status of public prosecutors. The following year Calvi was found dead in London and the Ambrosiano ended up bankrupt. See Vladimiro Zagrebelski, 'La polemica sul pubblico ministero e il nuovo Consiglio superiore della magistratura', Quaderni costituzionali 1 (1981) pp.391-9; Canosa (note 11) pp.195-203. We can speculate that Craxi saw a judicial investigation which was undermining one of his financial supporters as an interference with his attempts at reinforcing Socialists' assets in their competition with the other two big parties: the PCI and the DC.
21. Enzo Tortora, a well-known television entertainer, was arrested in 1983 and accused of drug trafficking and association with Neapolitan organised crime. He was later condemned by the court of Naples but, in 1986, the court of appeal cleared him of all charges, the court declaring that none of the original accusations had any basis in fact, but were based only on hearsay collected mainly from career criminals. See G. Di Federico, 'The Crisis of the Justice System and the Referendum on the Judiciary', in Robert Leonardi and Piergiorgio Corbetta (eds.) Italian Politics: A Review, Vol.3 (London: Pinter 1989) pp.25-49.
22. For an enthusiastic account of the reform see Ennio Amodio and Eugenio Selvaggi, 'An Accusatorial System in a Civil Law Country: The 1988 Italian Code of Criminal Procedure', Temple Law Review 62 (1989) pp.1211-24.
23. It is difficult to define in one sense or another the DC's policies since, as it is well-known, the party was divided into different and conflicting factions. However, broadly speaking, leftist factions, being also in favour of a closer collaboration with the Communists, were more supportive of judicial positions. For example, Galloni, vice-president of the Higher Council and a prominent member of the left of the party, was always in disagreement with President Cossiga.
24. By which, following Vallinder, 'When the Courts Go Marching In' (note 12), we mean 'the expansion of the province of the courts or the judges at the expenses of the politicians and/or the administrators' (p.13).
25. The range of extra-judicial duties of Italian magistrates is extremely wide. Among them is an important role as well-paid arbitrators, possibly in disputes between state-owned companies, or by appointment as consultants for various governmental departments. For more details see F. Zannotti, Le attività extragiudiziarie del magistrati ordinari (Padova: Cedam 1981) and the introduction by Di Federico.
26. See Zannotti, La magistratura (note 12) pp.70-155; and Sergio Pappalardo, Gli iconoclasti. Magistratura Democratica nel quadro dell'Associazione Nazionale Magistrati (Milano: Franco Angeli 1987). The number of magistrates in Parliament began to rise in the second half of the 1970s: in 1992 there were 13 and, by 1994, 22. There have also been some cases of magistrates becoming ministers or deputy ministers.
27. See Zannotti, La magistratura (note 12) pp.70-155; and Sergio Pappalardo, Gli iconoclasti. Magistratura Democratica nel quadro dell'Associazione Nazionale Magistrati (Milano: Franco Angeli 1987). The number of magistrates in Parliament began to rise in the second half of the 1970s: in 1992 there were 13 and, by 1994, 22. There have also been some cases of magistrates becoming ministers or deputy ministers.
28. The investigations started even before 1992, but in Feb. the first arrest was made of a lower-level Socialist politician. In the 1980s the Milanese magistrates had already tried to investigate cases of corruption, but with insignificant results. On the growing intensity of judicial investigations into the political class, see Franco Cazzola and Massimo Morisi, 'Magistratura e classe politica. Due punti di osservazione specifici per una ricerca empirica', Sociologia del diritto 22/1 (1995) pp.91-143.
29. See Andrea Lavazza, 'La toga e la verità', Il Mulino 44/362 (1995) pp.1045-58. However, in the 1980s, the degree of trust in the judiciary did not seem very high. See Roberto Cartocci, Tra Lega e Chiesa (Bologna: Il Mulino 1994) p.23.
30. See Andrea Lavazza, 'La toga e la verità', Il Mulino 44/362 (1995) pp.1045-58. However, in the 1980s, the degree of trust in the judiciary did not seem very high. See Roberto Cartocci, Tra Lega e Chiesa (Bologna: Il Mulino 1994) p.23.
31. See Di Federico and Guarnieri (note 1) p.172; and also Di Federico, 'Crisis' (note 14) esp. pp.28-35. For the general problems involved in the implementation of this principle see C. Guarnieri, Pubblico ministero e sistema politico (Padova: Cedam 1984) pp.125-52.
32. See Di Federico and Guarnieri (note 1) p.172; and also Di Federico, 'Crisis' (note 14) esp. pp.28-35. For the general problems involved in the implementation of this principle see C. Guarnieri, Pubblico ministero e sistema politico (Padova: Cedam 1984) pp.125-52.
33. There are no precise data on the number of statutes presently in force. However, according to conservative estimates there are no less than 100,000 (Il Sole-24 Ore, 6 July 1994). An example of a crime, whose definition is rather vague, is the 'abuse of power' (art.323 of the criminal code), according to which a public official who 'in order to provide for himself or others an unjust benefit, or to damage another unjustly, is guilty of an abuse of her or his office' and still be punished. The crime has been used to prosecute many public officials.
34. Only in the field of organised crime has disappointment with the lack of co-ordination in the fight against the Mafia has led to the establishment, in 1992, of a special structure - the Anti-Mafia District Offices, at the regional level, with the National Anti-Mafia Office at the top. The latter's senior personnel is appointed by the Higher Council and is in charge of all the investigations against the Mafia and organised crime. However, the power of the National Office should not be overrated.
35. For example, since they are members of the same corps, very often prosecutors are referred to by the media as 'judges', generating a dangerous confusion between two functionally very different roles.
36. See Giuseppe Di Federico, Il Tempo, 3 July 1995.
37. Namely, a decree with temporary value of law, but which must be approved before 60 days by Parliament. See Hine (note 2) p.149.
38. As Edward Gross and Amitai Etzioni, Organizations in Society (Englewood Cliffs, NJ: Prentice-Hall 1985), have pointed out, '... the degree to which an organisation selects ... its participants affects its control needs ... [since] the same level of control can be maintained by high selectivity and a low level of organisational socialisation as by low selectivity and high level of organisational socialisation' (pp.125-7). The Italian judiciary has a low level both of selectivity and organisational socialisation.
39. See Di Federico and Guarnieri (note 1) pp.168-70. The unsatisfactory performance of the Italian judiciary was stressed once again by the Prosecutor General at the Court of Cassation in his annual report for 1995 (Il Sole-24 Ore, 19 Jan. 1996).
40. The Constitution prescribes that the vice-president must be chosen from among the lay members of the Council. However, on the right, Alleanza Nazionale seems to be the group on the best terms with the judiciary.
41. An example is provided by the investigations in Venice into the use of public funds by many co-operatives traditionally affiliated to the PCI and the left. A new phase of investigations from the autumn of 1996 has implicated a number of left-wing figures and provoked the ire of influential left-wing politicians.
42. See Kenneth M. Holland (ed.) Judicial Activism in Comparative Perspective (London: Macmillan 1991); Lawrence M. Friedman, 'Is There a Modern Legal Culture?', Ratio Juris 7/2 (1994) pp.117-31 and Tate and Vallinder (note 12).
43. See Kenneth M. Holland (ed.) Judicial Activism in Comparative Perspective (London: Macmillan 1991); Lawrence M. Friedman, 'Is There a Modern Legal Culture?', Ratio Juris 7/2 (1994) pp.117-31 and Tate and Vallinder (note 12).
44. Especially strong are relations between progressive groups of European magistrates. They have recently founded an international association - Magistrats Européens pour la Démocratie et la Liberté (MEDEL) - which advocates the adoption of the Italian model of judicial organisation.
45. See Carlo Guarnieri and Patrizia Pederzoli, Pouvoir judiciaire et démocratie (Paris: Michalon, forthcoming).
46. See Maurizio Cotta 'Il Parlamento nel sistema politico italiano. Mutamenti istituzionali e cicli politici', Quaderni costituzionali 11 (1991) pp.201-23.