Italy’s parliamentary elections will take place on 25 September 2022. They were scheduled after the collapse of prime minister Mario Draghi’s government and the premature dissolution of the Parliament in July 2022. The government formed as a result of these elections will be Italy’s 12th in the past 20 years. Giorgia Meloni’s Fratelli d’Italia emerged as a frontrunner in the polls. According to 2022 polls, they experienced a major rise, from a mere 4,4% of votes in the 2018 elections to 25% ahead of Enrico Letta’s centre-left Democratic Party (currently at 22%). Matteo Salvini’s Lega is predicted to get 13%, Silvio Berlusconi’s Forza Italia 7%, considerably lower than their 2018 results.
The most likely scenario for the outcome of the elections is that Fratelli d’Italia will form a government with Lega and Forza Italia. However, some question the medium-term stability of this far-right- alliance. European integration or sanctions against Russia, among other issues, sow discord among the three parties. Experts have suggested that at a later stage, these internal divisions could reopen the possibility of a broad coalition like the one that supported Draghi. However, at this point, the likelihood that Letta will join forces with Meloni is quite low. It is unclear how the two would overcome divisions on certain issues; for example, Meloni pushes for a constitutional reform that puts a presidential system in place, a reform that Letta opposes.
Italy’s rule of law record has been mixed, at best. Several questions emerge that may be answered in the next few months: Is further deterioration of the rule of law situation likely, considering the reforms Meloni previously pushed for and those she plans to implement, according to her program? Will the new government make progress on the promised judicial and other reforms under the Recovery and Resilience Plan (RRP)? What about changes recommended by the European Commission in its 2022 Rule of Law Report? How resilient can Italy (its judiciary, media and civil society) be to rule of law backsliding? Will Italy become increasingly supportive of the Polish and Hungarian governments?
Top Rule of Law Challenges in Italy
Italy’s rule of law performance has mostly been below EU average. The most prominent rule of law challenges are related to (1) justice system; (2) media freedom and pluralism and (3) anti-corruption efforts.
The Quality and Efficiency of the Italian Justice System: The length of judicial proceedings remains a significant challenge for Italy. To fulfil its commitments under the RRP, Italy will have to make its judicial system more efficient by reducing the length of criminal and civil proceedings. Italy is committed to reducing by 40% the disposition time at all instances of civil justice and by 25% the disposition time at all instances of criminal justice by late 2026. In late 2021, the Parliament adopted enabling laws to address efficiency challenges. Regarding civil proceedings, the intention is to reduce the number of incoming cases and simplify proceedings. Regarding criminal trials, the goal is to reduce the length of proceedings, for example, by resorting to simplified procedures, broadening the use of digital technologies and defining time limits for preliminary investigations. As emphasized in the European Commission’s 2022 Report, implementing legislation, due in late 2022, will be important to reach the targets of the RRP, together with staff recruitment and increased digitalisation. While the Commission has acknowledged progress with recruitment and digitalisation, it stressed that levels of digitalisation need to be further improved, especially for criminal courts and prosecutors’ offices.
The European Commission took note of the new provisions aimed at greater efficiency of the criminal justice system, including those setting maximum time limits for completion of trials and allowing for the termination of these cases if those time limits are not met. The Commission emphasised the need for close monitoring to ensure a right balance between the introduction of the new provisions and the right of the defence, the right of victims and the interest of the public in efficient criminal proceedings.
Informal Influence of Professional Associations: Italian judiciary appears to be sufficiently insulated from direct political pressure – judge-members of the High Council for the Judiciary (CSM), the body deciding on judicial careers, are elected by judges and outnumber parliament-appointed non-judge members. However, observers have warned about improper internal influences. Reports that the CSM made decisions on appointments based on informal agreements among judicial associations affected its legitimacy and led to calls for greater transparency in CSM decision-making. The issue emerged with even greater force as a result of the 2019 Palamara affair, which involved a network of contacts of former President Palamara of the National Association of Magistrates within the CSM, reportedly seeking to influence the appointment of Rome’s next public prosecutor. Integrity challenges led to the initiation of disciplinary proceedings and resignation of five CSM members.
After considerable delay, on 16 June 2022 the Italian Parliament approved the new law increasing the number of CSM members and modifying the way in which they are elected. A major concern regarding the CSM elections was that judge-members were elected not based on merits but based on affiliation or loyalty to a particular association. This reform was meant to enhance the CSM’s independence vis-à-vis judicial associations. While judges generally approved of the reform, certain aspects, for example the discretionary power of the Ministry of Justice to build electoral colleges ahead of the elections, were seen as threatening to CSM independence.
Changes to the system of professional evaluation of judges: The CSM warned that 2022 legislative changes aimed at increasing efficiency could increase internal judicial hierarchy and potentially undermine judges’ decision-making autonomy. It was of concern that under the new law, professional evaluation of judges would be based, among other things, on the achievement of expected results set by court presidents and the failure to produce those results could lead to disciplinary action. The CSM also raised concern about granting voting powers to non-judge members of judicial boards (lawyers) in the appraisal of judges, because in the absence of incompatibility rules there is a risk of conflict of interest. The Ministry of Justice noted that the rules implementing the new law introduce some safeguards to eliminate the risk of conflict of interests.
Low levels of perceived independence of judiciary: the levels of perceived judicial independence are rather low. According to Eurobarometer 2022, only 37% of the general population and 40% of companies perceive the level of independence of judges and courts as “fair” or “very good”. These figures were even lower in the preceding years (34% in 2021 and 25% in 2016 for the general population and 29% in 2021 and 24% in 2016 for companies).
Delays in implementation of judgments of the European Court of Human Rights (ECtHR): As of 1 January 2022, Italy had 58 leading judgments (judgments addressing systemic or structural issues) pending implementation. Italy’s rate of leading judgments from the past 10 years that remained pending was at 58% (European average: 37,5 %). The oldest leading judgment, pending for 25 years, concerns the excessive length of criminal and administrative proceedings (Abenavoli v. Italy, 24487/94, pending implementation since 1997). Other leading judgments address, for example, failures to enforce court judgments (pending since 2018) and criminal convictions for acts of free speech on matters of public interest (pending since 2013). Under the categorisation proposed by the European Implementation Network and Democracy Reporting International, Italy’s implementation record presents a “very serious problem”. The other states falling under the same category are Hungary, Bulgaria and Romania.
According to the Media Pluralism Monitor’s (MPM) 2022 report, the main risk to media pluralism in Italy stemmed from high concentration of media ownership in all sectors of media production and the online platforms market. The same report emphasised Italy’s failure to properly shield public service media (PSM) from political influence. It called for reforming the election of members to the governing body (of the RAI - Radiotelevisione Italiana) and the funding system to guarantee the independence of the PSM. The report advised regulating conflict of interest to secure the autonomy of media from either direct or indirect control through ownership. The report also recommended obliging political parties and other political actors to detail their expenditures on political advertising online; strengthening the rules on political communication during the electoral period and extending them to the online sphere.
The European Commission’s 2022 Rule of Law Report highlighted the growing number of physical attacks, threats and other forms of intimidation against journalists. The Commission also emphasised that the protection of journalistic sources and the framework law on the professional secrecy of journalists remained inadequate. It was a subject of concern that the reform of the law on defamation was still pending. On the positive side, the Constitutional Court rulings practically abolished prison sentences for defamation. In the past, the European Court of Human Rights repeatedly found Italy to be in violation of journalists’ freedom of expression in connection with prison sentences for defamation. In Sallusti judgment of 7 March 2019 (Application 22350/13), the ECtHR, while finding the journalist’s prison sentence to be “manifestly disproportionate”, took note of recent legislative initiatives of Italian authorities and saw the removal of imprisonment as a sanction for defamation as a positive step.
The MPM report on Italy highlighted increased instances of SLAPPs (strategic lawsuits against public participation) and a lack of legal safeguards against them. These lawsuits are legal claims with the perceived aim of silencing journalists who write on issues of public interest. By forcing journalists to engage in costly litigation, the plaintiffs try to influence their editorial decisions. The Report recommended anti-SLAPPs laws to prevent the chilling effect of criminal and civil lawsuits on journalists and the promotion of cooperative tools and funds to support journalists against SLAPPs.
In the 2021 Corruption Perceptions Index by Transparency International, Italy ranks 17th in the European Union and 42nd globally. The 2022 Eurobarometer on Corruption shows that 89% of respondents consider corruption widespread in their country (EU average 68%) and 32% of respondents feel personally affected by corruption in their daily lives (EU average 24%).
The year 2022 saw several corruption cases of irregularities in political party funding. Some of those cases involved high-ranking political figures, such as Matteo Renzi. Italy prohibits direct public funding to political parties; they are required to finance themselves almost exclusively through private donations and publish data on donations. However, information is not made available in a centralized register in a coherent, understandable and timely manner. Concerns also exist as to the capacities and resources of the oversight and supervisory bodies.
Challenges remain as regards corruption vulnerabilities in public funds and the capacity to effectively prosecute foreign bribery. The European Commission called for the continuation of effective operations of police and prosecution against high-level corruption, including by enhancing digitalisation and interconnection of registries of various entities that hold relevant financial information. The Report emphasised that most corruption occurs in the public administration and public tendering, with increasing vulnerabilities in the renewable energy and construction sectors. When it comes to bribery of foreign public officials, the capacity of authorities to pursue and prosecute it effectively is undermined by a lack of resources, experience and insufficient legal expertise.
While Italy has a whistleblower protection law, it applies mostly to public sector employees and only some private sector employees. Italy has not yet adopted amendments to transpose the EU Whistleblower Protection directive into national law. Until adoption, the protection of whistleblowers in the private sector remains limited. In practice, the Anti-Corruption Authority does not have the mandate to receive whistleblower disclosures from private sector employees or to issue sanctions.
According to the European Commission, COVID-19 pandemic-related corruption risks remain high. As explained by investigators, criminal networks have in particular benefitted from the pandemic-related needs of economically fragile businesses and the procurement of state aid and public grants, with money being misused for other purposes and not being recovered. There are concerns about similar trends with regard to future procurements of public funds of the RRP.
Far Right Parties’ Rule of Law Agenda: What are the risks for the rule of law?
What can we expect in terms of Italy’s rule of law performance after the elections, if the far right-wing coalition forms the government? What are the risks for the rule of law in Italy? How will this affect Italy’s attitude towards the rule of law backsliding elsewhere in the EU?
Based on Meloni’s previous proposals for constitutional change, one can predict that if she accumulated sufficient support, she would take a path similar to that taken by the Polish and Hungarian governments, putting the rule of law and fundamental rights in danger. It appears that some of these proposals enjoy the support of other right-wing parties.
In March 2018, Meloni presented a proposal that sought to affirm the precedence of Italian law over EU law in the Constitution. In June 2018, Meloni also presented a proposal for a constitutional change allowing for the direct election of the country’s President, the head of state. The proposed amendment also enhanced their powers, all in the name of boosting his/her popular legitimacy. The proposed amendments could make the executive overly powerful and weaken the Parliament. If Meloni’s coalition took two-thirds of the seats in both parliamentary chambers, they could change the constitution without recourse to a popular referendum. The referendum can only be requested by half a million voters, one-fifth of MPs or five regional councils if less than a two-thirds majority of members in both chambers supported the proposal.
There seems to be an agreement between right-wing parties that the Italian judiciary needs to be reformed. While it is hard to derive the intention to capture the judiciary from reform proposals, the major institutional changes these parties call for carry this risk. It is difficult to judge proposed reforms without further details, but a few warrant attention. Fratelli d’Italia, Lega and Forza Italia are on the same page, as regards the separation of careers of judges and prosecutors, with two Councils (instead of one - CSM), separate competitions and the impossibility of switching functions. The Fratelli d’Italia election programme also indicates that disciplinary proceedings against judges should not be handled by a special section of the CSM (as it is now), but by a special disciplinary court, composed of former constitutional judges or former Supreme Court presidents who are unelected (designated by the President of the Republic instead) and, hence, will not be influenced by judicial associations. The influence of these associations on CSM elections seems to be a matter of concern for both Fratelli d’Italia and Lega. The Fratelli d’Italia programme calls for reverting to 24 elective members in the CSM (the number increased to 30 as a result of June 2022 legislative change) and revisit the election method. The two parties seem to signal that they view earlier reforms as insufficient or inadequate. Hence, while their programmes promise to build on some of the reforms implemented by the previous government, they plan to backtrack on others or re-do them.
An additional concern is that the right-wing coalition will attempt to re-write the terms of Italy’s access to the EU’s post-pandemic recovery fund. The coalition joint draft programme indicates that if elected, the next Italian government will do so under the pretext that the war in Ukraine and inflation have changed the context significantly. While Italy agreed to ambitious reform milestones and investment targets to gain access to EU money, experts and investors questioned Italy’s ability to meet its reform milestones set for 31 December in view of snap elections.
Looking at foreign policy, there are concerns that Italy will support the Polish and Hungarian governments or become part of the illiberal bloc fighting against diversity and confronting Brussels. Meloni backed Orban after the European Parliament in a resolution declared that Hungary can no longer be defined as a democracy. Italian MEPs from Fratelli d’Italia and Lega voted against the resolution.
Ylenia M. Citino, Post-doctoral researcher at Luiss Guido Carli University, formerly re:constitution fellow and Simone Benvenuti, associate professor in Comparative constitutional law, University of Rome 3, contributed to this analyisis.
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