The Italian Judiciary between Constitution and European Law: Autonomy, Independence, Impartiality and Protection of Rights

Abstract

The Italian Constitution, the European Law and the European Convention on Human Rights, contain the basic principles that, together with implementing legislation, ensure effective judicial protection of people's fundamental rights and freedoms and contribute to shape the rule of law. These are the guarantees of the right todefence, due process of law, natural judge, irremovability of judges, and in particular the guarantees of autonomy, independence and impartiality, which are recognisedto the Judiciary and individual magistrates, above all through the creation of autonomous governing bodies for ordinary and special magistracy, the selection of magistrates by public examination (apart from a few exceptional cases), limitations on the right of magistrates to take part in political, associative and other activities.The necessary co-operation between national judges and the Court of Justice of the European Unionplays an equally essential role to protect people's fundamental rights. The need to fully guaranteeand the inability of the legislator to protect adequately them has determined, over the years, a progressive extension of judges' powers. It produced, on one hand, tensions with Political Power, mainly due to the degenerative effects of the associative phenomenon among magistrates, on the other,long duration of judgments.The judicial reform law no. 71 of 2022 attempted to repair, at least partially, the problem of the politicisation of Judiciary. This law is one of the reforms included in the extensive National Recovery and Resilience Plan, launched in 2021, which pursues, among other fundamental objectives, that of reducing the times of Justice, mainly by the reorganisation of judiciary offices and the digitalisation of Justice, whose results are still awaited.