Sabino Cassese: "When the perception of impartiality disappears, public trust in justice also deteriorates"

At the age of ninety, Sabino Cassese (Atripalda, 1935) remains in very good form. The former judge of the Italian Constitutional Court and professor emeritus at the Scuola Normale Superiore in Pisa welcomed me again in Rome almost a year after our first conversation. Since then, many things have changed, but Cassese continues to use his experience with lucidity and to interpret the present with precision.

Today, the relationship between politics and justice is going through a convulsive and borderline stage, both in Italy and in Spain. In this regard, Cassese, who also has political experience after having served as minister in the Government of Carlo Azeglio Ciampi, argues that "if the judiciary develops a predominantly anti-government orientation, it ends up becoming an obstacle to government action".

On the judicialisation of politics and the politicisation of justice, he stresses that "there is an influence between the two spheres", but "this influence should be ten, and today it becomes one hundred". In this sense, when asked about popular prosecution —so widely debated in Spain, but non-existent in Italy—, he is unequivocal: "In a sense, it amounts to a call for judges to do politics. From my point of view, that is a significant flaw in the system".
 
We are living at a historical moment in which investigating someone —for example, a former prime minister— has immediate consequences. When it is announced that someone is under investigation, the media and social networks make that person guilty already in the eyes of many people.

In my view, the answer requires us to distinguish between three aspects. The first is the "whether", the second is the "how", and the third is the "how often".

The "whether" is easy to answer. Naturally, judges have the power to interpret rules and must apply the law. If they believe there is sufficient evidence —in the case of criminal judges, for example, of corruption or other offences— they must intervene.

"Judges have the power to interpret rules and must apply the law. If they believe there is sufficient evidence [...] they must intervene"

The "how" is the crucial point. In Italy, and I think also in Spain, investigations involving politicians often proceed through the immediate publication of accusations in the media. In this way, the accusation becomes the judgment. But an accusation is not a judgment.

The accused person appears in the newspapers as a corrupt person or as someone responsible for a crime. In addition, phone taps are published out of context. Wiretapping has become the usual way of gathering evidence. This is a fundamental part of the "how".

There are many investigative tools, but in general the preferred method of Italian prosecutors —virtually the only one— is wiretapping. A person can be subjected to it without knowing, without even knowing that they are under investigation and that their privacy has been violated.

The "how", therefore, concerns two issues: what types of evidence are used and how they are used. There are other tools, such as police surveillance, banking investigations or the analysis of financial documents. But, among the whole range of evidentiary tools, the main resource tends to be wiretapping.

"Wiretapping has become the usual way of gathering evidence. This is a fundamental part of the «how»"

There is also a second aspect of the "how": the accusation and the evidence are made public immediately. In this way, a person who has not yet been tried is subjected to the judgment of public opinion. I have written on occasion that this is what Max Weber would have called Kadi justice.

And then there is the "how often". That is, how many times a particular person or a particular matter becomes the target of an investigation. When this is repeated systematically, it can amount to genuine persecution.

So, in the Italian experience of the past thirty years, the problem has not been so much the "whether", but above all the "how" and the "how often".

I think that dividing line is very clear in most cases, probably in 80%, 90% or even 95% of them.

Problems arise when matters have strong political consequences. In those cases, even before a final decision has been reached, the mere fact of opening an investigation already has significant political effects.

And that is even more true today than in the past, because politics is faster, more personalised and more focused on leadership. Personalisation requires projecting strength and makes it difficult to endure a situation of permanent suspicion.
 
In this context, is it easier for judges to have the ability to interrupt or alter political processes?

That depends on the area we are talking about. Let us take an example. Italian prosecutors have carried out numerous investigations related to immigration. The judiciary argues that it does so because there may be violations of human rights. Politicians respond that this is not the case, that the government’s line —for example, the one defended by Salvini— is to limit irregular immigration and that, therefore, certain investigations end up being directed against policies promoted by the government itself.

It is a difficult issue to define. In any case, the problem of quantity reappears. The issue becomes relevant when a prosecutor’s office concentrates a very significant part of its investigative activity on areas that are especially sensitive for government action.

The Italian judiciary often defends itself by invoking an article of the Constitution that establishes mandatory prosecution. In my view, that is a rather weak defence.

Because what exactly does it mean for prosecution to be mandatory? In theory, it means that if a prosecutor reads a news item in the newspaper and believes that a crime may have been committed, they are obliged to act. Or that if they receive a complaint, they must open proceedings.

But that explanation is insufficient. In many countries there are scales of priorities. In the United States, for example, prosecutors set enforcement priorities: certain offences receive more attention than others.

"In theory, if a prosecutor reads a news item in the newspaper and believes that a crime may have been committed, they are obliged to act"

If prosecution is mandatory for any type of offence, and news about possible offences can reach prosecutors through thousands of different channels —and can even be actively sought out by prosecutors themselves— then in practice this grants broad discretion to decide what to investigate.

That is why, to my three criteria —the "whether", the "how" and the "how often"— a fourth could be added: the "what". In other words, what matters are chosen for action. And this is politically relevant.

Imagine that a prosecutor’s office focuses its activity mainly on a particular category of offences or on a particular category of people. It is clear that it is making a selection that may have political consequences.

In Italy, it is difficult to know in full all the investigations opened by a prosecutor’s office because much of that information is not public. However, the question you raise is important because it concerns the possible overlap between the priorities of a government and the priorities of the judiciary.

If the judiciary develops a predominantly anti-government orientation, it ends up becoming an obstacle to government action.

How should we define that responsibility today when judges decide to open an investigation? Many people argue that anyone has the right to be investigated if there is sufficient evidence. I agree. But I also wonder whether a judge should reflect especially carefully when opening an investigation into someone who has held the office of head of government. How should we understand that judicial responsibility?

It is a very difficult question. I think it should be part of the professional culture of judges and prosecutors to be aware that when a person who has held significant public responsibilities is investigated, they must act with particular care and with respect for the office that person has held.

Let me give you a personal example. During my time at the Constitutional Court, I was rapporteur in numerous cases related to Berlusconi. In one of them, the decision had to be taken a few months before a general election.

I spoke with the president of the Court and with other colleagues to suggest that the matter be resolved after the election. Not because we had already decided what the ruling would be, but because any decision we took would inevitably have political consequences.

I am therefore convinced that judges and prosecutors must have a certain political sensitivity. That does not mean that they should engage in politics. It means that they must understand the context in which they live. They must know —and they know perfectly well— what impact their decisions may have when those decisions become public. And, in fact, their decisions always end up becoming public.

"Judges and prosecutors must have a certain political sensitivity. That does not mean that they should engage in politics"

That is why they must be aware of their effects. Because, in certain circumstances, they can alter the course of an election. And this happens whether the investigation favours a candidate or harms them. If it harms them, they are marked by the accusation. If they are ultimately exonerated, they can present themselves as the victim of an unjustified investigation.

That is why I believe that the ability to distinguish between legal action and its political effects should form part of the training and professional education of those who exercise these functions.
 
And then there is the question of effectiveness. If we think of Mani Pulite, for example, a very large number of investigations were opened. An entire political system collapsed. And yet, if we look at the final outcome, the number of convictions or of people who ended up in prison was much lower than one might have imagined during those years. How should we assess the effectiveness of those investigations? Should responsibility be assumed in such cases?

I do think there was a disproportion between the media and political impact of those investigations and their strictly legal consequences. That seems fairly evident. That said, it is also true that if the political system was unable to withstand that impact, there were probably weaknesses within the political system itself.

Not everything can be attributed to the actions of magistrates. There were many factors. The attitude of certain leaders, the way the political system reacted and other circumstances all contributed to the final outcome.

There is undoubtedly a share of responsibility attributable to the Mani Pulite team. The difficulty lies in how to measure it. Because the problem exists, but I do not see a simple way to solve it.

Judicial independence remains a fundamental value. The important thing is to understand correctly what independence means.

When a person who is not a judge wants to go to the High Council of the Judiciary to complain about the conduct of a judge, I wonder: what happens to those complaints? How does it work?

I understand the question, but I would have serious doubts about allowing the High Council of the Judiciary to interfere in specific judicial decisions.

"Judicial independence remains a fundamental value. The important thing is to understand correctly what independence means"

The function of the High Council of the Judiciary is to ensure that judges and prosecutors are capable, independent, balanced people, and that they are also capable of practising self-restraint. But it should not intervene in decisions taken by individual judges.

The fundamental problem is to guarantee ex ante the quality and independence of those who exercise judicial functions.

If the Council intervenes in specific decisions, it ceases to be a governing body of the judiciary and becomes a court itself. And the High Council of the Judiciary should not be a court.
 
I am interested in the representativeness of those who govern the judiciary. For a long time, the judiciary has been understood as a counter-majoritarian institution, responsible for limiting political majorities. But today citizens also demand greater legitimacy from non-elective institutions. Is there a problem of political or ideological underrepresentation among judicial elites when they decide on politically sensitive issues?

What you raise is a fundamental question. If one reads Democracy in America, by Alexis de Tocqueville, one finds a very interesting observation: American democracy rested to a large extent on the election of judges.

Although that is a major difference between the United States and Europe.

In the United States, many state judges are elected, but federal judges are appointed by the president and remain in office for life. It is not necessarily an ideal model.

What matters is that the American democratic tradition preserves a direct form of popular participation in the judicial function. Judges are elected and juries are also chosen from among citizens. In this way, the judicial function remains, to a certain extent, linked to popular sovereignty.

"The legitimacy of judges rests precisely on merit: they are selected and promoted according to meritocratic criteria"

We have abandoned that model. We place greater trust in a professional judiciary that acts as a counter-power. Our systems have evolved towards a counter-majoritarian organisation based on selection by merit. The legitimacy of judges rests precisely on merit: they are selected and promoted according to meritocratic criteria. That is the foundation that allows us to entrust them with a function of checks and balances.

When we talk about these problems, we often do so as if they affected the whole judiciary. They do not. First, we are talking above all about the criminal judiciary, not the civil judiciary. And the criminal judiciary represents a relatively small part of the Italian judiciary as a whole.

Second, we are mainly talking about activist magistrates. Well, most magistrates are not activists. The objective remains the same: to maintain a merit-based system, while preventing it from turning into a closed corporation.

We constantly talk about the judicialisation of politics and the politicisation of justice. How do you explain these phenomena?

The function of justice is to resolve specific cases. The function of politics is to address matters of collective interest. Justice protects rights in specific situations. Politics operates on a more general level. If we accept confusion between the two spheres, we end up mixing two completely different functions.

Let us take an example. I am a judge and I have to decide on fifteen migrants who are in an irregular situation and who could be returned to their country. You are a parliamentarian and you have to decide whether irregular immigration should be fought, tolerated or regulated in a particular way.

"The function of politics is to address matters of collective interest. Justice protects rights in specific situations"

These are two completely different decisions. The first is a case-by-case decision. The second is a general decision about public policy. Naturally, the two spheres influence each other, but they are not the same thing.

But when a ruling on immigration is handed down, the public interpretation is usually immediate: "the government has won" or "the government has lost". The media present the news in that way. And when a headline says that the government has lost, the politician immediately thinks that they must do something because that decision affects their public image, their electoral prospects and citizens’ perceptions. That is why it is difficult to argue that the two spheres remain completely separate.

I understand perfectly what you are saying. And I agree that there is an influence between the two spheres.

What happens is that this influence should be ten, and today it becomes one hundred. The difference lies in the way it is interpreted. The problem is not the fact itself, but the interpretation made of it.

If you asked me what the solution would be, I would answer, half jokingly, that all television presenters, radio hosts and journalists should be made to take a five-year training course to teach them what a judicial ruling really means.

Because a ruling on fifteen migrants is not a ruling on an entire country’s migration policy. But the media often present it as if it were. And that is where the influence goes from ten to one hundred.

"All television presenters, radio hosts and journalists should be made to take a five-year training course to teach them what a judicial ruling really means"

Let me give you a concrete example. The government that has criticised immigration most in Italy is probably Meloni’s government. And yet, do you know which government has allowed the largest number of regular migrants to enter? Meloni has maximised her political benefit because she conveys to public opinion an image of toughness on irregular immigration. But at the same time, she has responded to the real needs of the Italian economy. Because soon there will not be enough Italian plumbers, carpenters, construction workers or agricultural labourers.
 
I wanted to ask you about popular prosecution.

It does not exist in Italy.

In Spain, a trade union, a private association or a political party can participate in judicial proceedings through popular prosecution. Even organisations with a clear ideological identity.

In Italy, a complaint can be filed. If a person has knowledge of facts that they consider criminal, they can go to the prosecutor’s office and report them. But that is not popular prosecution. It is an individual complaint. It must be signed by a specific person. It cannot be filed collectively or turned into an initiative promoted by organisations.

In Spain, popular prosecution can not only be present at the start of a case, but those who exercise it can become actors within the proceedings themselves.

That is very striking. And precisely there we see a very clear case of intersection between a political process and a judicial process. Because those who intervene are associations, trade unions or political parties.

One could even say that there is a perversion of the original idea. The initial intention was to allow citizens or associations to defend general interests. But in practice the result may be different. It can lead to an extension of political struggle into the judicial sphere.

"The government that has criticised immigration most in Italy is probably Meloni’s government. And yet, do you know which government has allowed the largest number of regular migrants to enter?"

That is the right word: an extension. Or, even better, a confusion between two different arenas. One is the political arena. The other is the judicial arena. And what is dangerous is precisely confusing the two. The proper setting for politics is Parliament, the government, the parties. The judicial setting is different. That is why I consider it a problematic institution. Because it creates a short circuit. It invites judges to perform functions that belong to politics. And, in a sense, it amounts to a call for judges to do politics. From my point of view, that is a significant flaw in the system.

You spoke earlier about the judicialisation of politics and the politicisation of justice, but you have not yet explained exactly what those concepts mean to you.

First, that decisions relating to specific cases come to be transformed into decisions of general scope. And, second, that decisions of a general nature end up being triggered by issues relating to specific cases.

There is a confusion between completely different actors. The actors of politics cannot be the same as the actors of justice.

Think of a concrete example. In Italy there is currently a magistrate who even hosts a television programme. He expresses opinions regularly, every week. If I am a citizen and one day I have to appear before that magistrate, how can I fully trust his impartiality?

Allow me to give a personal example. During the 1970s I wrote regularly in newspapers, as well as publishing academic work. However, when I joined the Constitutional Court, where I remained from 2005 to 2014, I stopped writing newspaper articles. And, from an academic point of view, I confined myself to writing about globalisation, precisely in order to keep away from any debate related to Italian domestic law.

I considered it an elementary rule. If one exercises jurisdictional functions, one should not express public opinions on matters on which one may have to rule in the future.

"In Italy there is currently a magistrate who even hosts a television programme. He expresses opinions regularly, every week [...] how can I fully trust his impartiality?"

Because I may write today about an issue and, three years later, find myself obliged to decide on it judicially. And then my opinion would already be known in advance. It would not be assessed solely in light of the evidence in the specific case.

That is why the English use a very appropriate expression: self-restraint.

I did not even speak to journalists. Many called me, and I always gave them the same answer: "I cannot say what I think." In my view, that is a fundamental rule if we want to avoid certain problems.

And I sincerely believe that the High Council of the Judiciary should establish much clearer criteria on this issue.

Public statements by judges should be severely limited. A judge must judge. A judge must be impartial and independent. And, in addition, a judge must appear impartial and independent. Because there is an important difference between being impartial and appearing to be so.

Citizens must not perceive the judge as just another party to the conflict. They must perceive the judge as someone standing above the parties.

The moment a judge appears as a political or ideological actor, that perception disappears. And when the perception of impartiality disappears, public trust in justice also deteriorates.
 
Today we know that when a judge or a prosecutor makes a decision, sometimes even before formally making it, the information appears in the newspapers. Investigations, leaks, phone taps… Everything ends up being published. How can citizens’ trust in judicial independence be maintained when decisions, or even the content of investigations, constantly appear in the media? How can a fair trial be guaranteed? How can a properly informed public opinion be built under these circumstances?

The answer is already in the Italian Constitution. Article 111 establishes that the accused must be informed of the accusation confidentially. The key word is precisely that: confidentially.

If the accused must be informed confidentially, that means they cannot find out at the same time as millions of people through television or newspapers. And yet that often happens.

"A judge must judge. A judge must be impartial and independent. And, in addition, a judge must appear impartial and independent"

There is therefore an evident contradiction between the constitutional principle and certain real practices. In addition, I must say something that may sound delicate. The current Italian government has talked a great deal about this problem, but has done relatively little to solve it.

Because the word "confidentially" should be translated into precise legislation establishing concrete mechanisms to protect confidentiality.

Thank you very much.