majority, began to be checked by an increasing pluralism within the judiciary itself. This
ceased being a compact, opaque body when factions within the magistrates openly
emerged, with autonomous organizations, independent strategies, distinct legal cultures
and different political attitudes which roughly corresponded to the categories of Left,
Centre and Right. Nor was this was the only way through which the judiciary began to
play a different political role. A national ordinary free-standing legislation, set apart from
the norms prescribed by the Codes, gained momentum especially in the 1970s. Then the
Parliament passed several bills which deeply changed the legal framework of a large
number of matters—the most far-reaching being the divorce and abortion legislation, the
Statuto dei lavoratori (the Workers’ Statute, which set out the rights of workers in their
workplaces) and a number of laws concerned with urban, financial and environmental
crimes. Such new social issues, supported by trade unions and pressure groups, required
protection and active promotion from the judiciary in order to overcome the widespread
opposition from the affected interests, so much so that magistrates who actively
implemented the new legislation acquired the nickname pretori d’assalto (assault
judges).
At the same time, threats stemming from political terrorism and organized crime (see
mafia) induced the Parliament to pass a series of ‘emergency’ security laws which
enormously enhanced the discretionary powers of police, prosecutors and judges, and
severely restricted citizens’ civil rights. New and ill-defined crimes such as ‘terrorist
association’ and ‘mafia association’ were introduced, which were aimed at prosecuting
not only suspects of crimes but also their alleged associates in whatever way possible.
Consequently, the earlier Fascist practice of allowing a suspect to be interrogated in the
absence of an attorney was reintroduced, preventive detention was extended and much,
often unscrupulous, use was made of pentiti or ‘repenters’, who enjoyed reduced
penalties, or even freedom and police protection, in exchange for implicating others. All
of this pushed the judiciary into a situation of role overload and high political exposure,
further enhanced by the emergence in the 1970s and 1980s of widespread political
corruption which often put magistrates and ruling politicians at odds.
Catch-all politicization, together with some gross miscarriages of justice—the most
famous being the case of popular television presenter, Enzo Tortora, who was unjustly
tried and sentenced after having being falsely implicated by pentiti with the Neapolitan
Camorra—weakened people’s confidence in the independence and impartiality of
magistrates and led to a questioning of their very legitimacy. This was confirmed in 1987,
when a referendum for removing judges’ indemnity from civil liability resulted in a
massive consensus, thus leading to the creation of a system for determining civil liability
of judges accused of ‘grave errors’. Even more importantly, a new Code of Criminal
Procedure was introduced in 1989, which adopted some elements from the Anglo-Saxon
common law. A new figure, the giudice per le udienze preliminari (judge for preliminary
hearings) was created to determine, on the basis of an adversarial hearing, whether a
prosecution should proceed, with defence attorneys and public prosecutors being given an
equal role in all phases of the process and the defence being allowed to cross-examine
witnesses.
The roles of judges and prosecutors thus came to be separated (although often more in
theory than in fact), and the balance of interest between the accused person and the state
was partly redressed, even though the transition to the new system proved controversial
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