But why is it that in Italy, as in other countries, we have to arrive at a separation of careers?
A little history doesn't hurt.
As is known, with the reform of article 111 of the Constitution which establishes the formation of evidence in the trial, the Legislator has chosen the accusatorial model of the criminal trial, abandoning the inquisitorial tradition to make the third-party nature of the judge effective.
To do this, it is necessary to separate the judiciary from the prosecuting magistracy.
The concept of "separation" should not be understood in a bureaucratic sense, but aims to approach the "truth" through dialectics, the ideal basis of art. 111 of the Constitution. Therefore, the parties in the process must have the same opportunities to assert their rights.
The separation of careers therefore becomes crucial to fully implement due process and to make the constitutional text coherent: it represents a fundamental step towards a system that guarantees citizens, but also the magistrates themselves: there will be prosecution bodies on one side that come from one track and freer judges on another track.
Our judges and public prosecutors are not only recruited through the same competition and can move from one function to another, but they also carry out their functions in the same buildings and sometimes we unfortunately find magistrates who for a certain period have carried out the functions of public prosecutor and subsequently, even in the same Court, have carried out the function of judge for preliminary investigations.
All this has created widespread solidarity among the members of the body, countless, daily occasions in which prosecutors and judges probably communicate to each other their mutual work difficulties.
This is, moreover, an assessment supported by the European Parliament itself which has repeatedly stated, among other things, that «it is also necessary to guarantee the impartiality of judges by distinguishing between the career of magistrates who carry out investigative activities and that of judges in order to ensure a fair trial.
In such a framework, we believe that the Constitution should be reformed in those parts that reflect the ancient inquisitorial vision and that prevent the full implementation of the principles of due process. Ultimately, we believe that it is necessary, in a short time, to harmonize the reform introduced by law 23 Nov. 1999, n. 2, which provides for an impartial and third Judge.
Two subjects and two distinct roles in a context in which the interchangeability of functions (prosecutor and judge) is not foreseen. We are on the right path for this to happen soon in Italy precisely to give concrete effect to the reform of fair trial.
Attorney Raffaele G. Crisileo
Article published on March 29, 2025 - 09pm
I don't understand why there is so much debate about career separation. The reform seems like a good thing, but there are too many complications that can make everything more difficult for everyone. We need to make sure that judges can do their job without interference.