Justice, the government gives the green light to the separation of magistrates' careers: here's what it means

On the other hand, Article 4 fixes the powers of the two SCMs - recruitment, assignments, transfers, professionalism evaluations and assignments of functions in respect of magistrates remain unchanged - while and entrusts the competence over disciplinary decisions to a High Disciplinary Court composed of fifteen judges, three presidential appointees, three drawn by lot from a list prepared by Parliament, six judges and three prosecutors drawn by lot.

Article 5 amends Article 106 of the Constitution: upon nomination by the Superior Council of the Judiciary, 'magistrates belonging to the investigative judiciary with at least 15 years of service' may be called to the office of councillor of cassation for distinguished merits.

Articles 6 and 7 make drafting changes to the Constitution resulting from the establishment of the two separate SCMs. Finally, Article 8 provides for transitional provisions: the new provisions on the Superior Council of the Judiciary, the judicial system and disciplinary jurisdiction "shall be adapted to the provisions of this Constitutional Law within one year of its entry into force".

"The 'main dish' of this measure is therefore the separation of the careers of magistrates, which has always been a Forza Italia workhorse, even in the days of Silvio Berlusconi's leadership.

Contrary to this solution is instead the ANM, the union of the toga, which confirmed its opposition also at the recent congress in Catania and after the meeting in via Arenula with the Guardasigilli Carlo Nordio . The normative container is an outline of a constitutional bill ('Norme in materia di ordinamento giurisdizionale e di istituzione della Corte disciplinare').

"What does the text" of the justice reform approved today by the Cdm provide for? "First of all," explained Prime Minister Giorgia Meloni, in a video message circulated on social media, "the separation of careers between judges and prosecutors so as to finally differentiate the path of those called upon to judge citizens from that of those charged with bringing charges, and thus make the relationship between defence and prosecution more balanced during the trial. "The second novelty," Meloni continued, "concerns the way of selecting the members of the Higher Council of the Judiciary, i.e. the self-governing body of justice, the one that decides on competitions, careers, transfers and until now the disciplinary conduct of judges, because the current mechanism for the composition of the SJC has unfortunately created a system dominated by the currents of the judiciary, which has undermined its perception of independence and penalised the vast majority of magistrates who just want to do their job well, without having to bow to the logic of political or factional dynamics. In order to break the mechanism of currents," the President of the Council therefore stressed, "we envisage that the members of the Csm will be selected by lot, with methods that will be established by law. Finally, 'the third and last change concerns the establishment of a new independent body: the High Disciplinary Court, which will have the task of expressing its opinion on magistrates' offences, taking this activity away from the SJC so as to overcome the criticality of a system that has been recorded so far, even here, conditioned by currentism, and which therefore tends never to sanction even the biggest violations'.

The idea is therefore to clearly separate the career path of magistrates, between those who perform a prosecuting function and those who perform a judging function. Today, the same magistrates move several times from judging to prosecuting functions and vice versa. Those who criticise the current system do so by highlighting one aspect: the contiguity between the public prosecutor and the judge contradicts the idea that the activity of the prosecuting party (public prosecutor) should remain distinct from that of the judge. Hence the conclusion: the separation of careers ensures greater transparency of roles.

The requirement function is exercised by magistrates who act as 'public prosecutors' and have the task of expressing requests or opinions with a view to decisions by judicial bodies.

The adjudicative function, on the other hand, is the one performed by judicial bodies (judges) entrusted with the task of deciding disputes or ruling on matters within their jurisdiction.

"The second point of the reform," clarified Chancellor Carlo Nordio, speaking at a press conference at the end of the Council of Ministers meeting, "is the composition and election of the Highest Council of the Judiciary: this organ of self-government of the judiciary in recent years, not only in my opinion or that of other members of the majority but of a great many magistrates, has not proved itself well and scandals such as those of Palamara or others have excited the various protests" that have not led to "remedies to those of current degeneration. Breaking this link that led to a whole series of anomalies,' Nordio continued, 'was our main task, through the draw'.

The judiciary," Mr Nordio emphasised, reading the incipit of the justice reform approved by the Council of Ministers, "constitutes an order that is autonomous and independent of any other power, and is composed of the judiciary of the judging career and the judiciary of the prosecuting career. We have also given constitutional significance to the fact that the prosecuting judiciary is, must be and will remain independent of any interference by the executive power, of any pressure from other bodies,' the minister concluded, 'it enjoys and will enjoy the same guarantees of independence as the judiciary'.