The Politics of Judicial Accountability in Italy Shifting the Balance

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 aim of this article is not to investigate the practice of holding judges accountable, which is often termed de facto judicial accountability. 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. 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,16 yet the myth still prevails when it comes to analysing judicial reform in Europe. 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; the rules regulating disciplinary responsibility; and those regulating the civil liability of judges. The last section focuses on the broader repercussions of the Italian case study.