On October 6, 2009, the Italian Constitutional Court quashed the so-called lodo Alfano, a statute hastily passed by the right-wing parliamentary majority in July 2008, just after winning the parliamentary elections. The statute had the effect of freezing all criminal proceedings against the highest state officials: the president of the Republic, the presidents of the two chambers of Parliament, and the prime minister. In fact, the actual goal of the statute was to suspend all the criminal charges brought against Berlusconi. The reaction of Berlusconi and his allies to the decision has been to denounce the court's leftist propensities and call for radical reforms of the judicial system. Without doubt, the court's decision was by no means favourable to Berlusconi, as it is likely that in the near future he will have to confront several criminal proceedings. However, in the recent past it was a criminal investigation that opened the way for the return to power of the Italian tycoon.

In January 2008, the justice minister of the center-left Prodi government, Clemente Mastella – together with his wife and twenty-three members of his small party – was put under investigation. The charges were several, ranging from extortion against the chief executive of the Campania region to various administrative illegalities. As a consequence, the minister resigned, denouncing the investigation as a “persecution.” After some days, the weak twelve-party government led by Romano Prodi collapsed, opening the way to new elections. Thus, in April, the center-right coalition – led by Silvio Berlusconi – which had ruled 2001–2006, was returned to power – with a stronger majority. Although the Prodi government was far from stable, the judicial intervention was the trigger of the crisis.

Throughout the 1970s, Italy was struck by a wave of terrorist attacks. Undoubtedly, at that time Italian terrorism was the most active of any country in Europe, and not surprisingly, it made a deep impact on the judicial system; the growth of judicial power in the 1980s and 1990s is strongly linked to terrorist activities in the 1970s. The fight against terrorism has deeply involved courts and the judiciary and ultimately influenced the way the judicial system has later confronted other criminal phenomena like organized crime and political corruption. None of these developments can be understood without considering the structure of the criminal justice process. Much of the success of Italy's fight against terrorism has been ascribed to its original criminal justice process, to its quick adaptation to the new challenge, and to the resulting strength of judicial powers.

Today, Italian terrorist groups, although always dangerous, seem to be largely dismantled. A stronger threat seems to be from international terrorists, especially Islamist groups, although so far no significant attack from international terrorists has occurred in Italy. Whether the Italian judicial system is still as effective as it has been in the past cannot yet be assessed.

THE ITALIAN JUDICIAL SYSTEM: ITS TRADITIONAL SETTING

In the late 1960s, before terrorism became a national emergency, Italian criminal justice was organized according to the European semi-inquisitorial style typical of the French Napoleonic tradition. The Code of Criminal Procedure enacted by Napoleon in 1808 influenced Italy and several other civil law countries (Damaska, 1986).

Judicial independence is often considered the simple by-product of a set of legal provisions aimed at wholly insulating the judge not only from state influence – usually the executive – but from the external environment: the more insulated the judge, the more independent she is deemed to be. A good example of this attitude can be found in one of the 1985 United Nations Principles of Judicial Independence:

There is often little critical reflection about the extent to which this ideal can be realized in practice and its consequences for the administration of justice. Conversely, judges working in political systems where such guarantees are not present in full are thought to lack independence, often without any further investigation.

To clarify the issue, a distinction should be introduced between institutional independence – that is, institutional guarantees of independence like the well-known during good behavior clause against arbitrary dismissal – and independence on the bench, that is, impartial behavior on the part of the judge. Some degree of institutional independence is a necessary but not sufficient condition of judicial impartiality. Institutional independence is only one of several determinants of judicial behavior. This is one reason why it is not always easy to single out the “right” degree of (institutional) judicial independence.

Today, the traditional view according to which democracy implies majority rule in the form of parliamentary supremacy has come under growing criticism. In Europe since World War II, democratic regimes have increasingly incorporated substantive constraints to what the parliamentary majority can do. Not only must public authority be exerted within general rules, but citizens are deemed to be entitled to fundamental rights, whose exercise must remain outside the will of the majority. Therefore, submitting the performance of public functions to the scrutiny of independent judges becomes an effective and essential check on the exercise of political power, ensures the supremacy of the law, and guarantees citizens' rights (Stone 2000).

There is some ambiguity in the concept of judicial independence (Russell 2001). On one hand, judicial independence is understood as institutional independence, that is, as the guarantees judges enjoy vis-à-vis the political branches of government. On the other, the term refers to the behavior of the judges, that is, to their independence on the bench. However, if, as a rule, in order to behave independently, a judge needs to be independent from the parties at the case (and, therefore, also from the executive), it does not follow that institutionally independent judges will automatically behave in an independent way, a point to which we return later.

Historically, in democratic countries, the level of judicial independence as well as the role played by courts in the political system has varied.