Italy's March Referendum: Separating Judges and Prosecutors

Judicial Reform Restructures Magistracy Governance Ahead of March Vote

The Italian judicial system stands at a crossroads as the nation prepares for a March 22-23 constitutional referendum that will decide whether to restructure how courts organize themselves. The battle has crystallized into competing visions of institutional power, with Justice Minister Carlo Nordio predicting democratic harm if reform fails, while magistrates and constitutional scholars argue that approval would alter the balance between judicial governance and political oversight.

The stakes extend far beyond courtroom procedure. For people living in Italy, the outcome affects how judges and prosecutors organize their governance and whether structural changes impact their practical independence. It also affects how foreign investors assess the predictability of legal rulings and whether ordinary citizens trust that judicial decisions rest on law rather than calculation.

Why This Matters

• Constitutional separation of careers is at stake: The referendum asks voters to formally separate the magistracy into distinct judge and prosecutor tracks—a shift that changes how courts organize themselves and who oversees disciplinary matters. Currently, a magistrate can serve as both a judge and prosecutor during their career; the reform would restrict such moves except once, in the first nine years of service.

• Governance structure would split: Currently, a single Superior Council of the Magistracy (CSM) oversees all judges and prosecutors. The reform would create two separate councils—one for judges, one for prosecutors—each with its own governance and elected leadership.

• How discipline and appointments would change: A new High Disciplinary Court would handle misconduct cases, and council members would be partly selected by lottery (sorteggio) rather than wholly through professional elections. For someone facing a tax dispute or criminal case, this could affect whether the judge handling your matter has independence from political pressure when deciding outcomes.

The Core Tension: Nordio's "Mortgage" Language Masks Deeper Institutional Debate

Speaking at an ANSA Forum in late February, Nordio repeated his assertion that defeat of the reform would allow an "extreme wing of the judiciary" to control politics through what he termed a "mortgage" on democratic governance. His rhetoric frames the referendum as a choice between empowering magistrates to thwart elected government or enabling the executive to modernize judicial institutions.

Yet this framing differs from what magistrates and constitutional experts emphasize. The National Association of Magistrates (ANM), which claims roughly 9,000 members nationwide, does not deny that some internal reform might prove useful. Rather, the association contends that Nordio's package restructures governance without offering proven alternatives. The ANM's secretary, Rocco Maruotti, has accused the government of delegitimizing the entire profession, portraying independent judges and prosecutors as obstacles rather than constitutional guardians.

The relationship between the Italy executive branch and the organized magistracy has deteriorated visibly since the Giorgia Meloni administration took office in October 2022. Accusations of judicial activism now feature regularly in coalition rhetoric; magistrates counter that such attacks erode confidence in impartiality and constitute attempts to subordinate the courts to executive will. The result is a public conflict that would have seemed unthinkable in previous Italian political cycles—one where institutional principles, not personalities, occupy center stage.

What the Referendum Text Actually Changes

The ballot presents a single question: voters decide whether to approve constitutional amendments touching seven articles of the Constitution. The package introduces three major institutional shifts.

First, formal separation of career tracks: Currently, a magistrate can serve as a judge and later as a prosecutor, or vice versa. The reform would forbid such moves except once—within the first nine years of service, across regional boundaries, and subject to exceptions for non-criminal judicial roles. Proponents argue this will reduce conflicting incentives; critics respond that the Cartabia Reform (already law) has achieved functional separation without constitutional upheaval.

Second, the split of the Superior Council of the Magistracy (CSM): The historic CSM, which governs magistrate appointments, transfers, and ethics, would splinter into two entities—one for judges, one for prosecutors. Both remain formally under the President of the Republic, but practical authority would devolve to each council's membership.

Third, introduction of random selection (sorteggio) for council membership: Instead of relying wholly on professional elections, a quota of magistrate members would be extracted by lottery from an eligible pool. Lay members—law professors and attorneys—would be drawn randomly from candidates endorsed by Parliament. Supporters argue this breaks factional voting patterns; opponents call it an abdication of representative governance that corrupts merit-based selection.

Additionally, a newly created High Disciplinary Court of constitutional rank would assume jurisdiction over magistrate misconduct. This court would comprise six lay judges and nine magistrates—a composition that could place legal professionals in the minority when disciplinary penalties are decided. The ANM and scholarly critics flag this structure as potentially allowing political influence over judicial consequences, potentially affecting whether prosecutors pursue aggressive investigations of powerful figures.

The Magistracy's Counterargument: From Autonomy to Vulnerability

Magistrates frame the reform not as technical adjustment but as institutional restructuring. Constitutional law scholars, including retired judges from the Constitutional Court itself, have raised concerns that the package alters the separation of powers. Constitutional expert Vittorio Angiolini described the reforms as "predominantly restructuring," removing current safeguards without offering proven alternatives.

The ANM has placed particular emphasis on the randomized selection mechanism. Extracting council members by lottery, the argument goes, substitutes procedural randomness for professional judgment. A magistrate chosen by sorteggio, lacking mandate from peers, may lack legitimacy within the judiciary and incentive to defend its institutional interests against political pressure.

The High Disciplinary Court, too, troubles magistrates. Under current rules, disciplinary matters remain within the magistracy's purview, governed by procedures designed by and for judges and prosecutors. Transferring this authority to a mixed bench where lay members could outnumber magistrates invites, critics warn, selective discipline of judges whose rulings displease political forces. This could affect whether a prosecutor investigating corruption feels protected from retaliation, or whether a judge ruling against a government agency fears disciplinary consequences for unpopular decisions.

A second grievance concerns the structural fragmentation itself. The ANM argues that magistrates need unified voice to resist capture by any single political interest. Splitting into two councils weakens collective bargaining power and complicates coordination on issues affecting both judges and prosecutors—organized crime trials, corruption cases, and constitutional disputes all require seamless coordination between investigative and adjudicative magistrates.

The Palamara Scandal and Lost Institutional Trust

The ongoing debate references the Palamara scandal (2019), in which leaked conversations showed magistrates trading judicial appointments along factional lines, sparking calls for governance reform. Reformers cite this episode as reason to overhaul the CSM and reduce internal politicization; opponents counter that replacing elections with lottery does not address underlying culture and may simply randomize administrative decisions rather than prevent factional influence.

Polling and the Undecided Middle

Recent surveys reveal a volatile electorate. The "No" campaign holds a slim lead among those expressing preference, but turnout projections remain uncertain. Approximately 46% of eligible voters currently intend to participate; crucially, approximately 40% remain undecided. Since confirmatory referendums impose no quorum threshold, even modest turnout could settle the outcome—a simple majority of valid ballots cast will determine whether the constitutional text survives.

Demographic patterns show age and gender divides. Younger voters and women lean toward rejection; older men and center-right partisans favor approval. Urban, educated voters tend toward "No," while rural and provincial electorates split more evenly. These patterns suggest that perceptions of judicial fairness and confidence in institutional independence—rather than partisan loyalty alone—drive voting intention.

Living in Italy After the Referendum: Practical Consequences

For residents navigating contracts, property disputes, and tax assessments, judicial impartiality directly affects outcomes. A magistracy perceived as subject to political pressure could suppress appeals filed by individuals challenging government decisions—whether on licensing, residency, or administrative penalty. Similarly:

• Criminal defendants: If judges and prosecutors operate in separate governance silos, coordination on evidence-sharing and trial management could suffer, potentially lengthening criminal cases.

• Administrative disputes: Foreign residents challenging immigration denials, employment dispute resolution, and administrative appeal outcomes depend on judges independent from executive influence.

• Tax disputes: An individual disputing a tax authority assessment relies on administrative courts free from pressure to defer to government positions.

Foreign and multinational enterprises operating in Italy often cite judicial unpredictability as a cost factor. The commercial courts in Milan and Rome handle significant cross-border litigation; any structural change affecting perceived independence could raise perceptions of legal risk and discourage investment. Similarly, startups and family businesses rely on administrative courts to review tax assessments and licensing denials; if those courts operate under political constraint, litigants will question whether law or expediency governs decisions.

The Government's Modernization Narrative

The Italy Cabinet frames the referendum as an opportunity to streamline judicial administration and reduce internal politicization. Nordio has called for a "calm debate on substance," insisting that the reform does not constrain judicial autonomy but rather adapts governance to contemporary needs. Coalition advocates note that Australia, Germany, and other democracies operate split systems separating judge and prosecutor roles, implying that Italy need not fear following suit.

The government has also highlighted specific grievances. The existing CSM has suffered repeated scandals involving factional maneuvering. By introducing sorteggio, Nordio's team argues, patronage networks would dissolve and merit would carry greater weight. A randomly selected magistrate, unbeholden to political factions within the judiciary, might better serve the public interest than one chosen by vote-trading colleagues.

Yet this narrative depends on a counterfactual assumption: that lottery-based selection produces more meritorious outcomes than collegial choice. Critics—including constitutional scholars—reject this premise, arguing that professions govern themselves through representative bodies for good reason and that randomization undermines accountability.

The Transparency Dispute: A Window into the Polarized Climate

In early 2026, the Italy Justice Ministry requested that the ANM disclose the names of donors funding the "Giusto dire No" (Right to Say No) committee, the main organization opposing the referendum. Cesare Parodi, the ANM president, refused, arguing that the committee operates independently of the association and that disclosure would violate donor privacy. The ministry then suggested that the ANM was hiding financial ties and obscuring whose interests it truly served.

This exchange encapsulates the erosion of institutional civility. Neither the government nor the magistracy appears willing to grant the other good faith. The ANM perceives the transparency demand as intimidation; the ministry views the refusal as evidence of covert financing and political maneuvering. For observers, the tone itself signals that the referendum will not settle the underlying conflict—rather, it will crystallize existing tensions into constitutional law.

The Path Forward: What Victory on Either Side Means

Should voters approve the text, the government will draft implementing legislation to establish the dual-CSM structure, define sorteggio mechanics, and operationalize the High Disciplinary Court. Transitional rules will govern magistrates already in service. This process will consume months and invite further judicial challenge—opponents may petition the Constitutional Court, arguing that the sorteggio mechanism violates constitutional principles of independence.

If the "No" campaign prevails, the current single-CSM model remains intact, and magistrates retain flexibility to move between judicial and prosecutorial roles. The government's modernization agenda would stall, though ordinary legislation might achieve some reforms without constitutional amendment.

Either outcome will reverberate through pending cases. Italy's criminal courts handle high-profile corruption prosecutions, organized-crime trials, and immigration detention reviews. Defense lawyers worry that separating judge and prosecutor roles could disrupt coordination, slowing trials. Prosecutors fear that a politically influenced disciplinary system will chill aggressive investigation of powerful defendants. Both concerns, though speculative, reflect deeper worries about the fragility of institutional independence in a polarized political environment.

For expatriates, dual nationals, and business stakeholders, the referendum adds another layer of legal uncertainty. The Italian tax authority, customs enforcement, and labor inspectorates rely on judicial review to resolve administrative disputes. If courts operate under perceived political constraint, agencies may push statutory boundaries knowing that magistrates are reluctant to challenge executive authority vigorously—a dynamic that heightens compliance risk and reduces predictability for all who conduct business or hold assets in Italy.

The Final Stretch: Messaging and Turnout

As voting day approaches, expect both campaigns to intensify outreach. Coalition ministers and parliamentary deputies will appear at town halls and broadcast interviews to argue that reform will improve efficiency and reduce internal factionalism. The ANM and its allies will counter with warnings that the magistracy faces structural changes affecting independence if voters approve the reforms.

The wildcard remains the 40% undecided electorate. Late-breaking developments—whether a high-profile trial verdict, a government scandal, or a magistrate's public statement—could sway these voters decisively. Turnout operations will prove crucial; whichever coalition mobilizes more supporters will likely determine the outcome in a low-participation referendum.

The Italy Supreme Court of Cassation and lower appellate benches will continue handling cases throughout the campaign, their rulings providing real-time evidence for both sides. A conviction of a government-adjacent figure could fuel claims that magistrates operate independently; an acquittal might be spun as proof that the judiciary shows deference to power. In this polarized climate, even routine adjudication becomes part of the referendum debate.

Why Residents and Investors Should Pay Attention

For someone living in Italy, the referendum distills a question with profound practical weight: Will the courts that adjudicate your disputes, review your tax bill, or oversee your child's guardianship operate with governance structures designed to protect independence? The answer depends not only on how voters cast ballots on March 22-23 but also on whether magistrates and government can restore institutional trust once the referendum concludes.

An approval would signal that Italian democracy accepts structural reorganization of judicial governance in service of reformed oversight. A rejection would confirm the current single-CSM model but leave the government frustrated and likely to pursue reform through ordinary legislation—a prolonged conflict that itself creates uncertainty for the courts.

Either path carries consequences for how justice functions in Italy. The precise impact—to individual liberty, commercial certainty, and democratic health—awaits the result.