Mario Draghi Has Unblocked Italy’s Courts but Italian Democracy Is Still Logjammed

In Italy’s notoriously volatile and litigious politics, there’s one thing that almost all parties have consistently agreed on: The justice system is wrecked.

By far the slowest in the European Union, Italy’s courts are a source of embarrassment, fostering distrust in the rule of law locally and discouraging investors from abroad. Yet despite years of complaints from across the political spectrum, it took a technocrat-led government and outside pressure from the EU to tackle the problem head-on.

As Italy is set to pass comprehensive justice reform, pushed by Italian Prime Minister Mario Draghi, a former European Central Bank chief, and Italian Justice Minister Marta Cartabia, a former Supreme Court judge with no party affiliation, it is yet another victory of technocracy over politics and a demonstration that, if you want to get anything done in Italy, Italy’s parliament and elected leaders are of little use.

The fact that justice has been a central debate topic in Italy’s traditional politics for the past few decades makes the belated reform even more disgraceful.

In pre-Draghi, pre-COVID-19 Italy, one of the sharpest ideological divides was between “giustizialisti” and “garantisti,” which can be loosely translated to “pro-justice” and “pro-rights,” as if the two were mutually exclusive. The first believed corruption was the country’s main problem and courts were impaired by too many constraints. The latter believed it was an inefficient judiciary tormenting the innocent and the guilty alike.

The rift has produced some of the most vitriolic partisanship, but what both camps accomplished is “buttarla in caciara,” the quintessential Italian art of setting off a shouting match to avoid any pragmatic discussion. Although they agree the justice system is deeply flawed, they couldn’t disagree more on what makes it so bad: Is it because it makes it easy to get away with crime, or is it because it exposes citizens to endless proceedings?

Both camps accomplished “buttarla in caciara,” the quintessential Italian art of setting off a shouting match to avoid any pragmatic discussion.

To some extent, both are right. With three degrees of judgment and no double jeopardy clause—meaning defendants can make two appeals but so can prosecutors, even after a verdict of innocence—penal trials last on average four years, exposing the accused to prolonged uncertainty and financial ruin regardless of the outcome. Civil proceedings can often last up to seven years, scaring away international investors. But precisely because they take so long, more than 80,000 trials expire without a verdict each year because they have languished beyond the statute of limitations—making it easy for some criminals to go unpunished, especially if they’re wealthy.

The party that has most embodied “giustizialismo” in the past few years is the Five Star Movement, which, eschewing the right-left distinction, has styled itself as primarily anti-corruption or, as critics say, pro-jail. Five Star leaders have used slogans like “onestà” (“honesty”) and “tutti in galera” (“let’s send them all to jail”), held press conferences with oranges to mock officials on trial, and greeted rivals with the handcuff gesture.

The right-wing populist League party used to display similar, if more macabre, “lock them up” symbolism: In the 1990s, a League lawmaker famously waved a noose in Italy’s parliament, and more recently, another one displayed a cardboard pitchfork. (In his defense, it looked more like a spork.) But the party had to tweak its line after it got caught up in its own corruption scandal in 2017.

The garantismo cause has been championed, out of personal interest, by Silvio Berlusconi, the controversial tycoon and four-time Italian prime minister who waged rancorous campaigns against prosecutors who repeatedly indicted him. (He was convicted for tax fraud in 2013.) But making the courts more citizen-friendly is also a flagship issue for the galaxy of small centrist forces that populate Italy’s landscape, such as the Italian Radicals party and former Italian Prime Minister Matteo Renzi’s Italia Viva party as well as for parts of the Democratic Party (PD). Small centrist parties and the most elitist part of the PD have their constituencies in the highly educated bourgeoisie of large cities that idolize U.S.-style civil liberties.

For three decades, no major political party made any serious attempts to make courts more efficient. The few practical efforts made focused on the statute of limitations rather than on the causes behind its widespread expiration before cases conclude. (In Italy, the statute of limitations is not the maximum time between a crime and the beginning of a trial; it’s the maximum time between the crime and the end of a trial. And because trials are so long, the statute basically serves as an expiration date for trials. If, by the end of the statute of limitations, the trial hasn’t reached a verdict, it simply ends with no resolution and everyone goes home—although this does not apply to murder, terrorism, or major mafia crimes.)

The pro-rights camp attempted to make it shorter and the pro-justice camp longer. As political commentator Jacopo Tondelli, editor of the left-leaning magazine Gli Stati Generali, put it, Italy’s judicial system “was like a patient sick with cancer and hepatitis, but politicians kept quarreling on aspirin dosage.”

For three decades, no major political party made any serious attempts to make courts more efficient.

By contrast, Draghi and Cartabia’s reform focuses heavily on putting courts in the position of working better and faster: first, by establishing the institution of clerkship—previously unheard of in Italy, which would relieve judges from the burden of having to read and research all the documents themselves—and second, by replacing the statute of limitations with a timetable for each degree of judgment. The first chunk was approved by Italy’s parliament on Sept. 23, and the entire reform is expected to pass within a few weeks.

Both chambers don’t have room to maneuver. The European Union has demanded reforms as a condition for Rome to receive a stimulus package of $234 billion. Draghi has attached a confidence vote, and right now, no party in the coalition is in the best shape to face early elections.

In other words, the reform that might finally fix Italy’s justice system passed because Draghi is in a strong position and because the European Union gave Italy no alternative. “Political parties are not part of the discussion. They’re squeezed under Draghi,” Tondelli said.

But although efficient, outsourcing responsibilities to technocrats is both a symptom and one of the causes of the weakness of Italy’s democracy.

It’s a cycle that keeps repeating itself: Elections produce leaders unfit to deliver much needed reforms or even to govern the country, so when reforms cannot be delayed or when they get themselves in some other kind of trouble, they call a technocrat to do their jobs—like children asking an adult to take over an unfinished task. It happened with former Italian Prime Ministers Carlo Azeglio Ciampi, Lamberto Dini, and Mario Monti—all three economists who were called to serve in government following a political crisis: Ciampi’s and Dini’s terms, both in the 1990s, didn’t stop the rise of Berlusconi, and Monti’s term, ending in 2013, contributed to energizing the Five Star Movement. And now it’s happening again with Draghi.

But this pattern breeds even more distrust for elected officials, which, in turn, leads to populist forces succeeding in the pools—only to fail once they get power. Right now, the only party rising in popularity is the ultra-nationalist Fratelli D’Italia, the only major political force that has not joined the unity government and which has criticized the fact that judicial reform took place without a broad discussion among political parties.

Draghi and Cartabia are on the right track to fix Italy’s broken justice system, and the country needs it. But Italy’s democracy appears to be broken as well, and for that, there’s no fix in sight.