Can Prosecutors Be Too Independent? An Italian Case-Study

Abstract

Guaranteeing the independence of judges and prosecutors is a sensitive issue in many countries. But this aim can also form part of transnational efforts to standardise and/ or raise standards for prosecutors and trial processes in Europe and elsewhere. What is not always clear however is the way such attempts to establish common standards relate to developments in different jurisdictions. Are we really dealing with ‘varying structures, convergent trends’? What importance should be given to local debates and ‘palace battles’ that seem to show persistent differences? How are international blueprints spread?. Who translates supposedly transnational standards into the vernacular- in what ways -and for what reasons? In what sense are the intermediaries who are involved in the making and spreading of such common standards representative of others in their legal cultures?

Asking such questions when we seek to bring about common standards will help us better understand whose standards we are spreading and the likely effects of doing so. This contribution is thus not intended primarily to offer new data about the realities of prosecutor independence in Italy. Nor does it try to show what can be ‘learned’ for immediate policy purposes from arrangements in foreign jurisdictions. The aim is rather to seek to grasp the distinctive ways in which allegedly commensurable ideas of independence and impartiality are disseminated between and within different legal cultures.The point being illustrated here is that when we look at prosecutorial independence comparatively we need to ask in what way this issue is salient -and is made salient- in different contexts.