Redrawing Boundaries: The Constitutional Reform on Judicial Career Separation in Italy

Italy’s constitutional reform on judicial career separation marks a critical juncture in the country’s ongoing judicial evolution. Approved by the Senate in July 2025, the reform introduces distinct career paths for judges and prosecutors, establishes two separate Superior Councils of the Judiciary, and creates a new High Disciplinary Court. Proponents argue the changes will strengthen impartiality and transparency, while critics raise concerns about risks to prosecutorial independence and constitutional protections. As the reform moves toward final parliamentary approval and possible referendum, it ignites intense debate on judicial autonomy, political influence, and the future of Italy’s justice system – writes Francesco Clementi

Background: The Reform Proposal

On 22 July, the Italian Senate approved a constitutional amendment bill on the separation of judicial careers between prosecutors and judges, with 106 votes in favour, 61 against, and 11 abstentions. The proposed constitutional reform, promoted by the Minister of Justice Carlo Nordio, represents one of the fundamental pillars of the government program of Prime Minister Giorgia Meloni. With a potentially revolutionary impact on the entire Italian judicial system, this reform aims to redefine the internal relationships within the judiciary by clearly separating the functions of judges and public prosecutors, currently united in a single autonomous body. The stated goal of the reform is to strengthen the impartiality of the judiciary, prevent functional overlaps and conflicts of interest, and protect the credibility of the judicial system in the public eyes. However, the issue is very complex and rich in legal, political, and cultural implications that raise numerous doubts and strong opposition.

Key Constitutional Changes

The constitutional bill notably proposes amendments to Articles 102, 104 and 105 of the Italian Constitution, which govern the autonomy and organization of the judiciary, by introducing the following significant innovations.

First, it proposes the establishment of a clear separation of careers between judges and public prosecutors, by creating two distinct professional paths. This would end the current practice allowing magistrates to move from the role of prosecutor to judge, or vice versa, except in exceptional and limited cases. The objective is to ensure that those called to judge have not previously served as accusers, thereby limiting potential influences or prejudices stemming from earlier roles.

This would represent a radical change in the organizational structure of the judiciary.

In addition, the reform proposes the creation of two distinct Superior Councils of the Judiciary (Consigli Superiori della Magistratura, or CSM)—the self-governing bodies responsible for overseeing appointments, careers, and disciplinary actions within the judiciary—one for judges and one for public prosecutors. Currently, a single CSM exercises self-governing authority over the entire judiciary. The proposed reform would divide this body into two separate councils, while preserving the institutional guarantee of the President of the Republic who would preside over both. This would represent a radical change in the organizational structure of the judiciary.

The proposal is intended to reduce the influence of judicial association and promote greater impartiality in the selection process.

Another key element of the reform is the introduction of a lottery system for appointing CSM members, replacing the current method of elections by the Parliament and the judiciary. At the moment the bill does not explain how the lottery system will be implemented. It only states that one third of the members will be selected at random from a list of full university professors of law and lawyers with at least fifteen years of experience compiled by Parliament. The remaining two thirds will be selected from among judges and prosecutors, in the number and according to the procedures provided for by law. The proposal is intended to reduce the influence of judicial association and promote greater impartiality in the selection process.

Finally, the reform would establish a new High Disciplinary Court responsible for imposing disciplinary sanctions on magistrates, a function currently exercised by the CSM. The Court would be composed of 15 members appointed for a non-renewable term of four years. The High Disciplinary Court would elect its president from among judges appointed by the President of the Republic or chosen at random from a list compiled by Parliament in joint session. Its decisions would be final and not subject to appeal, an aspect that has caused particular concern among critics.

Historical Context: Why This Debate Matters

The issue of career separation between judges and public prosecutors is not new to the Italian legal and political landscape. It is a longstanding debate that has spanned decades of discussion, controversy, and failed reform attempts.

The 1990s were a crucial period: the famous "Clean Hands" (in Italian: “Mani pulite”) investigation—a nationwide anti-corruption campaign that exposed widespread political and corporate misconduct—, led by Milan prosecutors, revolutionized the way justice was understood in Italy. On the one hand, it highlighted the fundamental importance of an independent criminal prosecution system capable of pursuing crimes without external interference. On the other hand, it fuelled strong criticism from various political forces and sectors of public opinion, who saw in some magistrates a judicial “protagonism” perceived as excessive or unjustified.

(...) [S]ome political forces, especially the center-right led by Silvio Berlusconi, promoted career separation as a tool to prevent abuses and limit the alleged “politicization” of the judiciary.

It was in that context that some political forces, especially the center-right led by Silvio Berlusconi, promoted career separation as a tool to prevent abuses and limit the alleged “politicization” of the judiciary. In 1997, the bicameral D’Alema Commission—a parliamentary body tasked with proposing institutional reforms—tried to address the issue by proposing the creation of two distinct Superior Councils, but this proposal was never implemented.

Subsequently, the Castelli reform of 2004 attempted to modify the judiciary’s self-governance and organizational structure, but this did not involve a constitutional revision. Over the years, the issue has resurfaced multiple times, especially during periods of tension between the judiciary and the executive, highlighting both its unresolved nature and the persistent difficulty in reaching lasting political consensus.

The unification of judicial and prosecutorial careers was seen as fundamental to fostering a common legal culture and ensuring real independence.

This long history of clashes is essential to understanding the delicacy of the issue: the Italian judiciary was established in 1947 as a unified, autonomous, and independent body, designed to protect citizens from possible abuses by the executive and to stand apart from the hierarchical models seen in other countries. The unification of judicial and prosecutorial careers was seen as fundamental to fostering a common legal culture and ensuring real independence.

Arguments in Favour of the Reform

Supporters of the reform argue that  a clear separation of careers represents a safeguard against conflicts of interest and guarantees a more impartial criminal justice process.

Supporters of the reform argue that  a clear separation of careers represents a safeguard against conflicts of interest and guarantees a more impartial criminal justice process. According to this view, the current overlap of roles within the Italian judiciary inevitably generates ambiguity and risks of conflating distinct functions: judging and prosecuting are seen as inherently incompatible when performed by the same individual.

The creation of two distinct CSMs is also viewed as a step toward greater specialization and autonomy for judges and prosecutors, with self-governing bodies more focused on the specific needs of each group. It is argued that this could also reduce the influence of judicial associations, often accused of clientelism and political interference in careers and appointments.

The introduction of a lottery system for selecting CSM members is seen as an innovative measure to ensure transparency and counter internal power dynamics that could compromise the credibility of the entire judicial system.

Finally, the establishment of a separate High Disciplinary Court is seen as a way to ensure greater efficiency and autonomy in disciplinary procedures, reducing the possibility of internal pressures and interference.

Criticism and Concerns

On the other hand, parliamentary opposition, magistrates’ associations, and many legal experts express strong doubts about the reform, highlighting its risks and potential negative consequences.

The risk of weakening the autonomy of the public prosecutor is perhaps the most frequent criticism.

The risk of weakening the autonomy of the public prosecutor is perhaps the most frequent criticism. In Italy, the principle of mandatory prosecution applies, meaning that public prosecutors are required to pursue a case whenever there is sufficient evidence of a crime. This principle is considered a pillar of citizens’ equality before the law, since it prevents political or other external influences from arbitrarily deciding which crimes to prosecute. Completely separating the careers of public prosecutors and placing them under an autonomous council could expose criminal prosecution to political pressure, especially if the appointment and governance systems fail to adequately protect their independence.

The establishment of a High Disciplinary Court with unappealable decisions is viewed by many as a significant flaw in constitutional guarantees. Currently, Article 111 of the Constitution protects the right of every citizen, including magistrates, to appeal to the Supreme Court (Corte di Cassazione) in cases of jurisdictional or procedural errors. Eliminating the possibility of appeal in disciplinary proceedings risks compromising both the right of defense and the effective legal protection of magistrates.

The fear of a “police-like” prosecutor’s office is another widely discussed concern.

The fear of a “police-like” prosecutor’s office is another widely discussed concern. An autonomous public prosecution service could take on a predominantly investigative role, effectively becoming a sort of extension of the judicial police. In a system based on mandatory prosecution, this shift could lead to an increase in investigative abuses, with serious consequences for personal freedom and the rights of suspects.

Ultimately, the core issue is not so much the separation of careers per se, but the ability to ensure that public prosecutors maintain an effective degree of autonomy equivalent to what they currently enjoy—both in their investigative decisions and in their independence from political influence.

The history of the Italian judiciary demonstrates that true independence does not depend solely on legal or organizational structures, but on a complex system of guarantees that include constitutional norms, institutional practices, legal culture, and democratic control. The choice to entrust the presidency of the CSMs and the High Disciplinary Court to the President of the Republic is also intended as an institutional safeguard, but it could prove insufficient if other selection and oversight mechanisms are not adequately balanced.

Comparative European Perspective

A useful point of reference for understanding the implications of the reform is a comparison with other European judicial systems.

In several countries, the judicial career is separate from that of public prosecutors, each with autonomous governing bodies and distinct organizational models. For example, in France, this separation has long existed: judges and public prosecutors are distinct, but the executive branch exerts strong influence over the prosecutor’s offices, as the Minister of Justice holds direct authority over prosecutorial appointments. This arrangement has often sparked criticism due to risks of politicization.

In Germany, the separation is more pronounced, but the system still provides for some degree of interconnection, with public prosecutors playing a clearly defined role akin to the judicial police. In other countries, such as the United Kingdom or the United States, the distinction is even greater—prosecutors are either elected or appointed by political authorities, making them potentially subject to strong political influence.

The European experience suggests that career separation is not in itself a guarantee of greater independence or impartiality (...).

The European experience suggests that career separation is not in itself a guarantee of greater independence or impartiality: it must be accompanied by mechanisms for protecting rights, oversight, and institutional balance.

The Political Path Ahead

If, in the second vote, the bill is approved by less than a two-thirds majority in either chamber, it may be subject to a confirmatory referendum.

As of 22 July 2025, the constitutional bill has passed its first reading in the Senate, following initial approval by the Chamber of Deputies, and now awaits the final two votes required under Article 138 of the Constitution. According to that article, the constitutional bill must be approved twice by both chambers of Parliament, with at least a three-month interval between the two votes, and must receive an absolute majority in the second vote. If, in the second vote, the bill is approved by less than a two-thirds majority in either chamber, it may be subject to a confirmatory referendum. If the reform is rejected in the referendum, it does not enter into force. However, if the bill is approved by a two-thirds majority in both chambers during the second vote, a referendum cannot be held, and the constitutional reform becomes law automatically.

(...) [P]ublic debate will play a central role in the coming months, with heated confrontations expected not only between political parties but also within the judicial and academic communities.

The government appears determined to frame the referendum as a political test for legitimizing its reforms, while the opposition sees it as an opportunity to defend the unified and autonomous judiciary by mobilizing a broad coalition of citizens, associations, and social groups. In this context, public debate will play a central role in the coming months, with heated confrontations expected not only between political parties but also within the judicial and academic communities.

Conclusion

The proposed constitutional reform on the separation of magistrates’ careers represents one of the deepest reorganizations of the Italian judicial system in the last decades. It centers on a redefinition of the balance between judicial and executive powers while introducing a new institutional architecture to guarantee greater transparency and specialization.

However, the concerns it raises are not marginal: the risk of greater politicization of the prosecutor’s offices, the weakening of judicial guarantees, the uncertainty surrounding the practical implications of establishing two distinct CSMs, and the methods of selection and control of magistrates are all issues that require careful reflection.

Ultimately, the success or failure of the reform will depend not only on the content of the legislative text but also on the political and institutional capacity to accompany it with robust and transparent safeguards—essential to maintaining citizens’ trust in the justice system, which is the foundation of any democracy.

Prof. Francesco Clementi is Full Professor of Comparative Public Law and Director of the Master's programme in ‘Electoral and Governmental Sciences’ at the University of Rome ‘La Sapienza’.

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Suggested citation: Francesco Clementi, ‘Redrawing Boundaries: The Constitutional Reform on Judicial Career Separation in Italy’, ConstitutionNet, International IDEA, 7 August 2025, https://constitutionnet.org/news/voices/redrawing-boundaries-constitutional-reform-judicial-career-separation-italy

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