Separation of careers and selection by lottery of magistrates
Pubblicato da americacallsitaly 7 febbraio 2026
On March 22 and 23, a confirmatory referendum
will be held in Italy on a constitutional law concerning the organization of the
judiciary.
There are two main points: the separation of careers between investigating
magistrates and judging magistrates, who would therefore have two distinct High
Councils of the Judiciary (the governing body), and the selection by lottery of
judges to sit on the two councils, which until now have been elected.
The first point is the one that has generated the most debate and controversy,
but in our view it is the second that is truly important.
As for the first point, the official
justification is that investigating and judging magistrates must be kept
distinct so that each can carry out their function without the conditioning that
would derive from belonging to a single professional category; therefore,
movement from one function to the other must be prevented (as is the case in
other countries).
However, even now in Italy only a very limited number of judges move from one
function to the other, and in any case this does not occur without difficulties,
above all the transfer to another seat, generally far away. In practice,
therefore, the impossibility of transfer does not change very much.
Opponents of the reform, however, claim that such a division would pave the way for political control over the investigating judiciary, which would be unconstitutional. In reality, nowhere in the reform is there even an indirect reference to such a development. It is then argued that this would happen because in states where there is a separation there is also political control over prosecutors. One could reply that such arrangements are not contrary to democracy, since they are in use in other democratic states (for example, in the USA), but in truth this seems to us a specious, hair-splitting argument: it is hard to see why such a regression should necessarily occur. If it did occur, one could then speak of unconstitutionality, but it is not possible to accuse a measure of being unconstitutional when it does not provide for this outcome.
The second point, less discussed but, as we
said, more important, is that the representatives of magistrates on the two High
Councils of the Judiciary would be chosen by lottery rather than elected.
This is something that does not happen in any other country. The real problem is
that currently, for elections to the Council, magistrates have organized
themselves into factions, a sort of parties (even if not formally constituted),
so that elections do not in fact take place on the basis of trust in the
abilities of the candidates, but from a political-ideological standpoint, in
which the left—often extremist—tends to prevail. In particular, the politically
driven allocation of important positions was brought to public attention by the
Palamara case, which highlighted for the general public a situation that was in
fact well known to those involved, and about which nothing has since been done
to remedy it.
The lottery system therefore presents itself as an attempt to combat the
politicization of the judiciary.
Some have also noted, however, that a lottery
does not exclude politicized judges; indeed, in the extreme case it could
randomly result in a council composed entirely, or almost entirely, of judges
with a particular ideological orientation.
It is believed that under the current system judges, in order to advance their
careers, must have a political orientation. Indeed, it is clear that the High
Council will appoint to important positions those judges it considers closer to
its own political line, rather than evaluating their abilities.
The question then becomes: is the Italian
judiciary actually politicized, which is the real issue under discussion?
In reality, no judge can be entirely without a certain ideological-political
orientation, as happens in every country; however, an arrangement such as
elections through political factions excessively accentuates this characteristic.
It seems evident that many judges, especially prosecutors, are politically
oriented.
One need only note the very many judicial proceedings initiated against
politicians which then, in almost all cases, come to nothing. If there is so
much disagreement among magistrates, one cannot think that they are simply
incompetent and making mistakes; the conclusion, therefore, is that judges are
encroaching on the political sphere.
Let us give a few examples.
Perhaps the most striking fact, yet generally ignored, is that of Bassolino (PD),
former mayor and former regional governor: he was indicted 19 times and
acquitted 19 times, without causing a stir (as with many others). But many years
have passed and, although acquitted 19 times, he has left the political arena (like
many others). In practice, few people know about these acquittals, while
everyone remembers the accusations.
The trial of Salvini for kidnapping lasted for
years. In the absence of a law prohibiting the turning back of an illegal
migrant, Lo Voi charged Salvini with kidnapping. This crime concerns acts such
as ransom abduction, forcibly confining a person in a place, perhaps even
preventing one’s wife from leaving out of jealousy. But the migrants were not
forced to stay on board: they could go to other countries, they could return to
where they had come from, etc., etc.
And indeed the judges could do nothing but acquit Salvini.
Whether the matter was unjust, inhumane, or evil is not for judges to decide.
Similarly, magistrates rejected, for almost
all migrants, the possibility of being transferred to the center prepared in
Albania, as they contested the principle of a “safe country” indicated by the
government.
But the concept of a safe country is extremely vague: one could even argue that
Italy itself is not a safe country.
Above all, it must be taken into account that all the countries from which
migrants come are unsafe countries: if we want to be consistent, we should then
accept anyone who comes from the so-called Third World countries that do not
adhere to our principles; in practice, everyone could enter Italy.
Let us then turn to the famous proceedings
that dominated the scene for 20 years in the cases involving Berlusconi. An
enormous number of proceedings (said to be 139), almost all of which ended in
nothing, except for a single one for tax evasion, a case that was itself highly
questionable.
If we consider, for example, the most famous one, the Ruby case, we may ask what
the original crime was that gave rise to a series of trials lasting 12 years.
The “elegant dinners” with associated prostitution are not a crime under current
law, which follows the evolution (or, if you prefer, the involution) of the
times. Among many girls, only one was found who was six months short of legal
age, and she was certainly not an innocent young virgin but clearly a
prostitute. Certainly, this was legally an offense, but it cannot be
demonstrated in any way that Berlusconi knew her age, nor even that he had sex
with her. Thus an enormous case was built up, with wiretaps galore, endless
investigations, as if it had involved a serial killer. Why, then, did Bocassini,
so sensitive, not investigate all those who had paid for sex with Ruby?
We can think all the worst possible things about those orgiastic dinners on a
moral level, but ethics are not the responsibility of the judiciary: this is a
blatant case of judicial persecution for political ends.
Magistrates are the only category that is not
held accountable for what it does (perhaps teachers as well).
For example, Lo Voi pursued a baseless case against Salvini for five years, as
later ruled by the Court, and instead of being marginalized he even obtained the
leadership of the prosecutor’s office of the capital.
Magistrates advance in their careers, and the most important appointments are
assigned according to membership in political factions (as Palamara teaches).
Laws are always abstract norms, and the task of judges is to relate concrete facts to them: if they engage in hair-splitting, they can do anything and its opposite, because in the end it is always they who decide.