Lecture 21

Question 1

The Judiciary

Answer 1

The Judiciary (“magistratura”) exercises the
jurisdictional power. The power to adjudicate legal
disputes/disagreements. The judge:

• Reconstructs the facts of the case
• Identifies the applicable law
• Interprets it
• Applies it to the case at hand
• Adjudicates the dispute/disagreement
  All citizens are equal before the law (art. 3 Cost.)

Question 2

The Judiciary: Autonomy

Answer 2

The Judiciary is a “branch” that is autonomous and independent from all other powers (art. 104 Cost.)

• Autonomy through self-government (Supreme Council of the Judiciary – SCJ/“CSM”)
• Autonomy and independency in an externaldimension: from other constitutional powers (especially the Government)
• Autonomy and independency in an internaldimension: of the single “judge” (no hierarchy between the members of the Judiciary)
• Autonomy and independence: the members of the Judiciary are selected through a public selection
  1. Not appointed
  2. Not elected
  3. Meritocratic system
• Exception: Law Professors and senior lawyers (15years) can be appointed as judges of the Court of Cassation by the SCJ for “high merits”
• Exception: honorary members of the Judiciary (“Giudice di pace”, “MOT”)
• The autonomy and independence of the Judiciary (in all of their dimensions) are protected by the Supreme Council of the Judiciary – art. 104 Cost.
• Body of self-government
• Competent on all the matters connected to the status of the members of the Judiciary, e.g.:
  1. Appointment
  2. Assignment
  3. Mobility
  4. Promotion
  5. Disciplinary measures (≠ civil/criminal responsibility)

Question 3

The Judiciary: Supreme Council of the Judiciary– Composition (number of members, election of members, organization-specialization, vice-president, term of office, immunity)

Answer 3

• 3 members “by right”
  1. President of Republic (President of the CSM)
  2. Chief Justice (“Primo Presidente”) of the Supreme Court of Cassation
  3. Chief Prosecutor (“Procuratore Generale”) of the Supreme Court of Cassation (Advocate General of the Court of Cassation)
• 2/3 members (20) elected by the public prosecutors and the judges among public prosecutors and judges
  1. 2 Judges of the Supreme Court of Cassation
  2. 5 Public Prosecutors
  3. 13 Judges
  These elected ordinary judges exercise the two functions at once (they are both members of SCJ and orfinary judges); this to prevent the creation of a caste of judges– by the same rationale the vice-chairman of the SCJ is to be a “law member”, elected by the Parliament
• 1/3 members (10) elected by Parliament in Joint Session. Qualified majority (3/5 of total MPs first two votes, of attending MPs from the third), secret vote
  1. Full Professors of Law
  2. Lawyers with at least 15 yrs. of practice
• The Vice-President is elected by the entire Council, among the lawyers or the Law Professors
• Term of office: 4 years for the elected members
• Wide range of incompatibilities (ensures the independence of the body)
• Immunity for the opinions and votes expressed in the exercise of their functions
• The “mixed” composition ensures the autonomy and independence of the Judiciary, while avoiding selfreferentiality.
• Organized in plenum and Commissions (which may be specialized on specific matters

Question 4

The Judiciary: Supreme Council of the Judiciary– Acts

Answer 4

• The acts of the CSM can have different natures (administrative, regulatory, jurisdictional)
• The administrative acts of the CSM can be challenged before the administrative judge (e.g.: mobility, promotions; etc.)– recourse, first to the Tribunal of Lazio, second, to the Council of State
• They cannot be dismissed or suspended from office or assigned to other Courts or functions unless by a decision of the Supreme Council of the Judiciary, taken either
  1. For the reasons and with the guarantees of defence established by the provisions concerning the organisation of Judiciary (e.g.: disciplinary action; re-organization; etc)
  2. With the consent of the judge themselves
• The disciplinary sanctions issued by the CSM (jurisdictional decisions) can be challenged before
  the Court of Cassation (ordinary judge)

Question 5

The Judiciary: the Administration of Justice (statutory limit, at what level, centralized or decentralized)

Answer 5

• Absolute statutory limit for the provisions
  concerning the administration of justice (article 108 Cost.)
• Ensures that the matter is always regulated with the participation of Parliament
• Exclusive competence of the State (article 117
  Cost.). No regional judiciary
  1. Local articulations of national jurisdictional bodies (e.g.: TAR; Tribunal of Milan; etc.)
  2. Possible decentralization of honorary justice (116 Cost.)

Question 6

The Judiciary: Powers of the Minister of Justice

Answer 6

• The powers of the Ministry of Justice are limited to the administrative/organizational aspects of the
  administration of justice (e.g.: bureaucratic staff of Tribunals; budget; buildings; prisons; etc.)– he administers those services regarding the functioning of the Judiciary
• Participates in the appointments of members of the Judiciary as high officials of the administration of justice (“mixed” competences)
• Can promote disciplinary actions against members of the Judiciary

Question 7

The Judiciary: Judges are Subject only to the Law

Answer 7

• To the “law”, not to the legislative power
  (Parliament)
• Mild connection with the “people”
  1. The people elects Parliament, Parliament makes the laws, the judge is subject to the law
  2. Justice is administered “in the name of the Italian
  people”
• Subject only to the law but always subject to the
  law: the judge must apply the law even if they think that the law is wrong
• Limit: constitutional compatibility
• The judge is not subject to the jurisprudence of
  other judges
  1. Precedents are not a source of the “law” (civil law system)
  2. No hierarchy among the Judiciary
  3. Only a “persuasive” force of precedent decisions
• Parliament makes laws, judges interpret them: the judge can interpret the law in a way that diverges from the interpretation of the original legislator
• Extensive interpretation of the concept of “law”: all of the sources of the law (constitutional, primary, secondary)
• The judge must be autonomous and independent, but they must also look autonomous and independent
  1. Possible to limit the judges’ right to associate in political parties (art. 98 Cost.)
  2. Right to the “natural judge” established by the law (art. 25 Cost.) through a pre-determined mechanism (no cherry-picking)
• Members of the judiciary are separated only by their functions/jurisdiction
• Public prosecutors (“Magistratura requirente” ) /
  Judges (“Magistratura giudicante”)
• Ordinary (civil, criminal) or special (administrative, accounts, military) jurisdiction
• First, second, third instance judges (and offices of
  the public prosecutor)
• Judges cannot be removed from office
  (“Inamovibilità”) – art. 107 Cost.
• They cannot be dismissed or suspended from office or assigned to other Courts or functions unless by a decision of the Supreme Council of the Judiciary, taken either
  1. For the reasons and with the guarantees of defence established by the provisions concerning the organisation of Judiciary (e.g.: disciplinary action; re-organization; etc)
  2. With the consent of the judge themselves

Question 8

The Judiciary: Internal Mobility

Answer 8

• Once, mainly connected to seniority
• Now, connected to a periodical evaluation of the
  judge’s/public prosecutor’s «professionality» (ability, commitment, diligence, laboriousness) on the basis of criteria set out by the law (and with a deliberation of the CSM)
• The mobility between «careers» (from judge to
  public prosecutor and vice versa) is possible (calls for amendment)

Question 9

The Judiciary: Disciplinary Duties

Answer 9

• Disciplinary duties: impartiality, loyal upholding of the law, fairness, diligence, laboriousness,
  discretion, sensibleness, respect of human dignity
• The list of disciplinary infringements must be laid
  down by the law
• The CSM is competent on the adjudication of the
  disciplinary cases
• Sanctions: warning, censure, loss of seniority, ban from higher positions, suspension, expulsion

Question 10

The Judiciary: Civil Responsability (definition, intentions behind the deed, possible violations of principles, remedy)

Answer 10

• Damages caused by members of the Judiciary
  through the exercise of their functions
• Legal basis: Intention («dolo»), severe negligence
  («colpa grave»), or denial of justice
  1. Manifest violation of the law
  2. Affirmation of incontrovertibly false facts or negation of incontrovertibly true facts
  3. Preventive detention outside of the cases envisioned by the law
  4. Manifest contrast with EU law
• Action (compensation) against the State (which can retaliate on the member of the judiciary)
• Limit: one annuity of salary
• Possible issues: paralysis of the jurisdictional
  activities?
• Civil responsibility must have compensatory aims, not sanctionatory (punitive) aims