Addio, Rule of Law?

Fears are spreading that Italy, too, may be joining the club of EU Member States nicknamed as “dismantlers”: countries whose governments are taking measures to undermine the rule of law. As a matter of fact, recent developments in Italy lay bare a set of enduring constitutional tensions: the challenge of safeguarding media freedom and fundamental rights amid the securitarian shift of a right-wing government committed to strengthening national security and the effort to reform criminal justice without narrowing civic space. All of this is unfolding against the backdrop of a still-pending constitutional reform that, though currently on stand-by, continues to cast a shadow over institutional balances, particularly in light of ongoing debates on a possible change of the electoral law.

In this post, I will discuss three episodes that are triggering a harsh debate among constitutional scholarship. First, allegations that anti-mafia prosecutors had surveilled government officials in what has been dubbed the “Striano gate”; second, counter-allegations that the government had spied on journalists and activists in the so-called “Paragon affair”; and to top it off, the enactment of a Security Decree via an unorthodox (yet quite common) legislative technique.

While the actors involved are not the same in each story, the constitutional stakes are analogous: the proper use of coercive powers in a democracy and the traditional dichotomy between freedom and state authority. So, after all, are we witnessing early signs of democratic regression?

The suspicion game

The “Striano gate”, sparked in early 2024, revealed a troubling case of unauthorised surveillance, qualified by some as political espionage, by others dismissed as irrelevant. At the centre of the scandal is a Lieutenant of the Finance Police (Guardia di Finanza) who allegedly accessed hundreds of confidential data records from anti-mafia prosecutors’ databases without prior green-light. Many of them were leaked to journalists, thus raising serious concerns about the misuse of sensitive information belonging to persons in prominent political positions (including members of the government).

In response to the scandal, Italian authorities have initiated investigations, now under the jurisdiction of the Rome Prosecutor’s Office for a second review. The affair has also triggered mounting tensions, particularly within the Italian Parliament’s Anti-Mafia Committee, where a conflict-of-interest polemic has emerged. Although the case is still open, it has reignited long-standing concerns about the politicisation of the judiciary and judicial overreach in Italy. The attempt to orient political processes, reflected in the contemporary tendency to a “government of the judges”, is part of a wider debate unfolding in many countries, such as – recently – in France, with the legal proceedings involving Marine Le Pen (Aynès, 2025).

The Paragon affairs

The second scandal was exposed by The Guardian, featuring interviews with some Italian journalists and NGO activists maintaining that a software developed by Paragon Solutions, a company founded by former Prime Minister Ehud Barak (Haaretz), was spying on their phones and that this company had a contractual relationship with the Italian government. The victims received a WhatsApp alert about potential spyware intrusion, and the director of an online media outlet (Fanpage) claimed that he was being hacked because of his critical stance toward the Italian Government and that, knowing this, the company had immediately terminated its contract with the Italian authorities on ethical grounds. In response, the Government issued a press note, reminding that journalists are legally protected from intelligence surveillance under Law No. 124 of 2007. The government also acknowledged that seven Italian mobile devices appeared to have been infected and announced it had activated COPASIR, the Parliamentary Committee overseeing intelligence services, to investigate further.

However, the picture becomes even more disconcerting when one connects the dots between the pressure on journalists, the allegations of surveillance against the government, and a set of rules recently approved by the executive.

The “Security Decree” on a tightrope?

The “Security Decree”, or Decree-Law No. 48, enacted on 11 April 2025 by the government encompasses a broad set of measures on public security, aiming at combating terrorism and organized crime (Part I), addressing urban security issues (Part II), protecting law enforcement personnel (Part III), supporting victims of usury (Part IV), and reforming the penitentiary system (Part V).

Criticism over it concerns many provisions. The decree sets or increases sanctions for a wide range of offences, including, but not limited to, the act of blocking streets, particularly when carried out by a group. It punishes riots occurring within prisons and migrant detention centres (Centri di permanenza per il rimpatrio, or CPRs). It also provides for arrest in case of begging (accattonaggio) and for individuals committing crimes in public transportation hubs.

Some provisions, suspected of being unconstitutional, were either repealed or significantly watered down, due to several remarks by the President of the Republic ahead of issuance. For instance, the initial version of Article 31 imposed a duty to cooperate with national intelligence services on all public administrations, including publicly owned and publicly controlled companies. This ostensibly comprised universities and the public service media, so critics argued that the provision posed a risk of stifling freedom of information and academic freedom. The article, a substantially long and rather obscure one as it relies heavily on multiple legislative cross-references, contains several norms for empowering the activity of secret services, but the criticised “duty to cooperate” has been repealed from the version in force. Despite this and other last-minute changes, dissent on the rest of the decree remains strong.

In particular, 257 Italian legal scholars, including prominent figures such as former Presidents and Vice Presidents of the Constitutional Court, published an open letter expressing deep concern about what they characterised as an authoritarian and repressive turn in the Italian legislative agenda. Interestingly enough, the letter was not disseminated through academic channels or institutional fora, nor was it discussed in seminars, but via a popular media outlet known for its anti-establishment editorial line and consistent criticism of right-wing governments, Il Fatto Quotidiano. There, the appeal framed the decree as a prioritisation of state authority over individual freedoms and fundamental rights.

The signatories argue that the decree is affected by two main deficiencies. First, on procedural grounds, it represents a “humiliation” of the Parliament. The decree was issued by the Government while the same text was already under discussion in its second reading at the Senate, raising serious questions of compliance with Article 77 of the Constitution, which allows for decree-laws only in “extraordinary cases of necessity and urgency”.

Second, on substance, the signatories argue that the decree embodies a broader political strategy of governing through fear, rather than following democratic and constitutional principles, as evidenced by the “unreasonable qualitative and quantitative increase in criminal penalties”.

A more restrained but still critical debate has also emerged within the Italian Association of Constitutionalists (AIC), which, on a periodic basis, fosters debate on a topical issue of relevant constitutional interest. In its 04/2025 issue of Lettera AIC, Balduzzi opened the discussion sharing his impression that the decree marks “the fall point of ancient and decisive issues for our form of government and our form of state,” cautioning that such emergency decrees must remain the exception to parliamentary legislation and that this use of legislative power shall generally be suspected. Cardone pointed out the distorting effects of overusing decree-laws, including internal incoherence and the erosion of parliamentary sovereignty: for him, the Security Decree is a patchy collection of disparate subject matters. Others, like Camerlengo, warned that the decree signals a shift from viewing “security as a means” to understanding “order as an end in itself.”

A tough nut to crack

The discussed episodes of alleged political and journalistic espionage in Italy, though still under judicial investigation, are undoubtedly cause for concern. However, from a constitutional perspective, it is prudent to adopt a position of analytical caution and refrain from premature judgments about possible systemic implications. More worrisome, in the short term, is the normative content of the Security Decree, which affects a range of fundamental rights, including freedom of expression, freedom of assembly, and the right to peacefully protest. The securitarian turn of the Meloni government was evident from the very beginning of its mandate, as signalled by its first major legislative act: Decree-Law No. 162/2022 (Decreto Rave), later converted into law, which aimed at the prevention and suppression of illegal gatherings and parties on abandoned properties. It is worth noting that this legislative trajectory responds to a strong political demand among the governing coalition’s electorate, shaped by public perception of urban insecurity and rising crime rates.

As for the Security Decree, the legislative process was rushed but its path remained firmly within the boundaries of current institutional (mal)practices. While procedural shortcuts do raise legitimate concerns about the separation of powers, an issue rightly noted in the above-mentioned AIC Letters, it remains the case that Parliament retains the final say on emergency legislation. Under Article 77 of the Constitution, decree-laws are valid only temporarily: the government must submit them to Parliament on the day of enactment, and Parliament has 60 days to convert them into law, amend them, reject them, or allow them to expire.

Moreover, the use of decree-laws must be evaluated in a historical context. Since at least the 1980s, Italian executives have routinely relied on emergency legislation to advance their political agendas (Cassese, 2021). Executive predominance in the legislative process has been a structural feature of the Italian system and is far from unique to Italy. Comparative data confirms this trend across parliamentary democracies: government-initiated laws account for 80.4% of legislation in Germany, 84% in the United Kingdom, and 96% in Spain. Even in France, where parliamentary power has recently resurged, government-initiated legislation still accounts for 52% of laws (Rapporto sulla legislazione, 2025).

By contrast, when compared with the exceptional legislative dynamics of the COVID-19 crisis, current trends suggest a relative normalisation of executive–legislative relations in Italy (Longo, 2021). “Normalisation” does not equate “equilibrium”: the (im)balance between the executive and the legislative remains shaped by structurally “creative” practices that often allow the executive to circumvent or dominate parliamentary procedures. A notable example is the proliferation of so-called Decreti Minotauro, a practice whereby several decree-laws are repealed and their content folded into amendments to a single conversion bill already under examination. This and other legislative stratagems have the effect of sidelining Parliament and diminishing its deliberative capacity, as argued by Losana (2024).

A cautious assessment

So, is Italy experiencing a democratic regression? This is not the ideal forum in which to offer a definitive answer, one that requires more than intuition or perception. Instead, it demands careful evaluation grounded in measurable indicators and comparative benchmarks and, in this regard, the forthcoming 2025 Rule of Law Report by the European Commission is a tool that may offer valuable insights (Citino, 2024). Moreover, any assessment must situate recent episodes within the broader context of the Italian constitutional system and the enduring robustness of its institutional guardrails. These include the moderating role of the President of the Republic and the pivotal part played by the Constitutional Court, the resilience of parliamentary debate, weakened in its legislative function but, more realistically, leaning towards new forms of parliamentary oversight of the executive (Griglio, 2020). Lastly, the valuable role of civic mobilisation in Italy must be recalled, completed by a vibrant media environment which serves as a democratic watchdog (but see risks of politicisation of public media service here).

One final consideration is worth noting. Italy’s political polarisation is not in itself evidence of institutional breakdown; rather, it is the consequence of the rise of populist dynamics spreading across Europe and beyond. In the Italian context, such polarisation is further shaped by the country’s distinctive political culture, namely, the intrinsic heterogeneity (and riotism) of its governing coalitions. This can be exemplified by a closer look at the composition of the Conte governments, which spanned dramatically different coalitions from the populist alliance between the Five Star Movement and the League (Conte I) to a centre-left coalition including the Democratic Party (Conte II). Unlike more rigid coalition systems (e.g., in Germany, where agreements tend to mute internal dissent), Italian majorities are, therefore, often characterised by internal negotiation, tension, and even open disagreement. Far from signalling dysfunction, this feature reflects an enduring, even if at times unruly, form of intra-coalitional dialogue and democratic contestation. It is precisely this culture of ongoing negotiation that distinguishes Italian parliamentary democracy and complicates external efforts to interpret it through conventional models of institutional stability.