The judiciary of Italy is composed of courts responsible for interpreting and applying the law in the Italian Republic. Magistracy is a public office, accessible only to Italian citizens who hold an Italian Juris Doctor and have successfully participated in the relevant competitive public examination organised by the Ministry of justice. The judicial power is independent and there is no internal hierarchy within. Italian magistrates are either judges or public prosecutors.
Notably, the Italian judiciary operates independently from the executive branch, the latter being prohibited to interfere with the appointment, career advancement and the prerogatives of magistrates.[1] Once an individual enters the magistracy, they can serve so long as they reach the maximum age for retirement eligibility; disciplinary sanctions can be solely pronounced by the Consiglio superiore della magistratura.
The structure of the Italian judiciary is three-tier and follows general civil law principles. Inferior courts have original and general jurisdiction over civil and criminal disputes. Appellate courts hear cases on appeal from lower courts, reviewing the legal principles used and, if need be, the facts. The Corte Suprema di Cassazione is Italy's highest court in civil and criminal matters, that can be seized for matters relating to the interpretation of the law, exclusive of fact-related disputes.[2] Whilst the doctrine of stare decisis is not provided for under Italian law, the Corte Suprema di Cassazione's rulings exert legal suasion over lower courts to adjudge future disputes.[3]
Likewise, the administrative judicial circuit operates independently of others powers, as stipulated in Article 120 of the Constitution. It is also separate from the so-called ordinary judicial circuit wherein are comprised civil and criminal courts.[4] Administrative courts are divided into regional administrative courts and the Consiglio di Stato which sits as supreme court for administrative matters. The Managing Board of the administrative justice, established by ordinary law no. 205/2000, addresses all issues related to the organisation, the functioning and the discipline of the administrative magistracy.
The Italian legal system is based on civil law, even though, in certain instances, judicial rulings bind courts and administrative authorities when deciding subsequent cases, and the rule of law. The laws of Italy rely on several sources, arranged in hierarchical scale so that lower rules cannot contradict upper rules.
Italy's statutory laws comprise both codes and punctual statutes. Italy possesses a civil code which, originally, codified Roman law and was influenced by the German BGB and, slightly, by the Napoleonic civil code. The first code was adopted in 1865 under the Savoia's monarchy and then repealed by the second code of 1942, adopted during Fascism.[5] Likewise, the Italian penal code (also known as the "Rocco Code", eponym of the then Ministry of justice) was adopted in 1930 under the fascist regime.
Both the civil code and the penal code have undergone legislative modifications to ensure compliance with the democratic principle laid down, in the aftermath of World War II, by the Constitution and following the corresponding social changes.[5]
Once appointed to a certain office, judges and public prosecutors are irremovable by law unless the own magistrate's consent or following a decision of the High Council of the Judiciary under one of the limitative reasons set out by law.[7] In order to sanction an Italian magistrate, the prosecuting body must ensure compliance with the due process of law clause.
The High Council of the Judiciary is the self-governing body of the Italian judiciary, an institution of constitutional importance, chaired by the President of the Italian Republic and vice-chaired by a magistrate who ensures, de facto, presidency.[8] Article 105 of the Constitution vests this institution with the power to guarantee the autonomy and independence of the Italian judiciary, let alone solve any issue related to the recruitment, assignments and transfers, promotions and disciplinary measures vis-à-vis magistrates.[8]
The Constitution further lays down a number of principle that contribute to define the prerogatives of the Italian judiciary. First, judges must be preconstituted prior trial under Article 25, meaning that judges cannot be specially assigned to preside over a particular dispute. In the same vein, Article 102 paragraph 2 prohibits the setting-up of extraordinary or special tribunals.[9]
Within the Italian legal order, magistrates are only subject to the law pursuant to Article 101 of the Constitution. Accordingly, neither the other powers of the States nor other courts' rulings can affect a magistrate's own decision-making process, as only legal norms of at least statutory relevance bind the magistrate's course of action. The independency of magistracy also involves absence of hierarchy among magistrates, who can only be distinguished by the functions vested in them pursuant to Article 107 paragraph 3.[10]
Public prosecutors and judges assigned to criminal bench are granted by law a license to carry firearms.[12]
Components
Ruggero Pesce, President of the Milan Court of Appeal, officially opens the judicial year 2010
Career magistrates – also known as togates (togati) – can serve in one of the following public offices:[13]
ordinary court magistrate, who can serve as:
public prosecutor; or,
bench judge;
administrative court magistrate, whose competence comprises the protection of legitimate interests against the public administration and specific matters arising out of the exercice of subjective rights;
audit court magistrates assigned to the Court of Audit, with competence to assess and ascertain matters related to the public expenditure, let alone sanction those who have misused public funds; these magistrate can carry the duties of:
public prosecutor; or,
bench judge.
tax court magistrate with jurisdiction over tax-related disputes.
The Italian judiciary is also made up of honorary magistrates, who support career magistrates in handling the workload that stems from lesser significant disputes. Litigation in Italy is known to bring about significant delays prior one can obtain a ruling, that is the so-called Italian torpedo. Honorary magistrates can either be assigned to a Court of peace (giudice di pace, for civil matters), to a honorary deputy public prosecutor office or to a honorary court (for criminal matters).[14] The adjective "honorary" is intended to confirm the non-professional nature of the duties carried out by these magistrates, who are remunerated according to the number of cases adjudged rather than on a fixed basis.[15]
The Italian military judiciary exists on a stand-alone basis, with exclusive competence to judge crimes committed by members of the Italian Armed Forces.[16]
Responsibility
Magistrates judges and prosecutors are liable under criminal, civil and disciplinary laws for the actions undertaken to the detriment of citizens through exercise of their functions; the principle of public liability of judges is rooted in Article 28 of the Constitution, that reads "the officials and employees of the State and public bodies are directly responsible, according to criminal, civil and administrative laws, for acts committed in violation of rights".[17] In such cases it extends to the State and public bodies.[17]
Personnel
Recruitment
Access to the ordinary, administrative, tax or audit magistrature is differentiated. Article 106 of the Constitution only requires the organisation of a public examination to provide for the appointment of magistrates; the office is not accessible through elections. In fact, candidates with no prior legal experience may solely become ordinary magistrates by undertaking the relevant public examination, whereas access to the administrative, audit and tax magistratures relies on separation public examinations open to candidates with prior professional or academic experience.
Exceptionnally, the High Council of the Judiciary is authorised, pursuant to Article 106 paragraph 2 of the Constitution, to appoint highly qualified university professors of law or lawyers as councilor of cassation (consigliere di cassazione),[18] who only operate within the Corte Suprema di Cassazione.
Ordinary magistrature
Access to the ordinary magistrature is based on a competitive examination managed by the Ministry of Justice. Among the many eligibility requirements, candidates must hold an Italian Juris Doctor (the so-called laurea magistrale a ciclo unico in giurisprudenza) and be Italian citizens.[19]
For long time, entry to the examination was subjected to candidates possessing prior relevant professional or academic experience. Civil servants and lawyers with a five-year experience in their position were eligible to sit to the examination, just as honorary magistrates with a six-year experience. The entry requirement was also met by doctors of law, university lecturers in legal matters, graduates from the so-called Italian Schools of Specialization for the Legal Professions or law graduates who clerked with a civil or criminal magistrate for eighteen months.[20][21][22]
In 2022, a reform of the judicial organisation has been undertaken to simplify the recruitment of ordinary magistrate, bringing down the main entry requirement to possession of an Italian Juris Doctor. Administrative and audit magistrates as well as state attorneys were and continue being eligible to the examination.
Said competitive examination is held roughly on a yearly basis and is divided in two phases. The first part is written and requires candidates to draft three dissertations in private law, criminal law and administrative law respectively, each eight-hour long. The second part is oral and is reserved to candidates who received at least the pass mark (12/20) for all written compositions; these candidates are interviewed by the examination jury on fifteen subject-matters, namely:[23]
interview in a foreign language, chosen by the candidate when applying to the examination among English, Spanish, German or French .
Within the limit of available positions, candidates who succeed all two phases are deemed laureates and may acquire the status of "ordinary trainee magistrate" (uditore giudiziario). The entry examination can be undertaken only thrice in a candidate's life.[24]
Training and development
Villa Castel Pulci (Scandicci), seat of the Higher School of the Judiciary
Ordinary trainee magistrates undergo an initial training within the Scuola superiore della magistratura, with operational offices in Scandicci and Naples.[25] The school was set up in 2012, to provide for an educational training of trainee magistrates and was inspired by the French national school of magistracy. From 1958 to 2012, the program was implemented by Commission IX of Consiglio superiore della magistratura.[26]
Once a professional ordinary magistrate enters into the office, they follow the so-called "lifelong learning program". As from autumn 2012, the Scuola superiore della magistratura is responsible for training career magistrates both at the local and national levels via different academic and professional sessions.
Italy's membership to Eurojust requires Italian magistrates to undertake several training and exchange programs at the European level.
The structure of the Italian judiciary is divided into three tiers (gradi, sing. grado): primo grado ("first tier"), secondo grado ("second tier") and ultima istanza ("last resort") also called terzo grado ("third tier"). Inferior courts of original and general jurisdiction, intermediate appellate courts which hear cases on appeal from lower courts, and courts of last resort which hear appeals from lower appellate courts on the interpretation of law.[27]
Giudice di pace
Italian Court system
The giudice di pace ("justice of the peace") is the court of original jurisdiction for less significant civil matters. The court replaced the old preture ("Praetor Courts") and the giudice conciliatore ("judge of conciliation") in 1991.[28]
Tribunale
The tribunale ("tribunal") is the court of general jurisdiction for civil matters. Here, litigants are statutorily required to be represented by an Italian barrister, or avvocato. It can be composed of one judge or of three judges, according to the importance of the case.[29] When acting as Appellate Court for the Justice of the Peace, it is always monocratico (composed of only one Judge).[29]
Divisions and Specialized Divisions
Giudice del Lavoro ("labor tribunal"): hears disputes and suits between employers and employees (apart from cases dealt with in administrative courts, see below). A single judge presides over cases in the giudice del lavoro tribunal.[30]
Sezione specializzata agraria ("land estate court"): the specialized section that hears all agrarian controversies. Cases in this court are heard by two expert members in agricultural matters.[31]
Tribunale per i minorenni ("Family Proceedings Court"): the specialized section that hears all cases concerning minors, such as adoptions or emancipations; it is presided over by two professional judges and two lay judges.[32]
Corte d'appello
The Corte d'appello ("Court of Appeal") has jurisdiction to retry the cases heard by the tribunale as a Court of first instance and is divided into three or more divisions: labor, civil, and criminal.[33] Its jurisdiction is limited to a territorial constituency called a "district".[33] The judgments of the court of appeal can be appealed with a Supreme Court of Cassation appeal.[33]
The Corte Suprema di Cassazione ("Supreme Court of Cassation") is the highest court of appeal or court of last resort in Italy. It has its seat in the Palace of Justice, Rome. The Court of Cassation also ensures the correct application of law in the inferior and appeal courts and resolves disputes as to which lower court (penal, civil, administrative, military) has jurisdiction to hear a given case.[34]
The Corte d'Assise ("Court of Assizes") has jurisdiction to try all crimes carrying a maximum penalty of 24 years in prison or more.[35] These are the most serious crimes, such as terrorism and murder. Also slavery, killing a consenting human being, and helping a person to commit suicide are serious crimes that are tried by this court. Penalties imposed by the court can include life sentences (ergastolo).[35]
Corte d'assise e d'appello
The Corte d'assise e d'appello ("Court of Assize Appeal") judges following an appeal against the sentences issued in the first instance by the assize court or by the judge of the preliminary hearing who has judged in the forms of the summary judgment on crimes whose knowledge is normally devolved to the court of assizes.[36] An appeal is made to the Supreme Court of Cassation against its sentences. The Court of Assize Appeal is made up of two professional judges and eight lay judges.[37]
Tribunale amministrativo regionale
The tribunale amministrativo regionale ("Regional administrative court") is competent to judge appeals, brought against administrative acts, by subjects who consider themselves harmed (in a way that does not comply with the legal system) in their own legitimate interest. These are administrative judges of first instance, whose sentences are appealable before the Council of State. For the same reason, it is the only type of special judiciary to provide for only two tiers of judgment.[38]
The Consiglio di Stato ("Council of State") is, in the Italian legal system, a body of constitutional significance. Provided for by art. 100 of the Constitution, which places it among the auxiliary organs of the government, it is a judicial body, and is also the highest special administrative judge, in a position of third party with respect to the Italian public administration, pursuant to art. 103 of the Constitution.[39]
The Ministry of Justice handles the administration of courts and judiciary, including paying salaries and constructing new courthouses. The Ministry of Justice and that of the Infrastructure fund, and the Ministry of Justice and that of the Interior administer the prison system.
Lastly, the Ministry of Justice receives and processes applications for presidential pardons and proposes legislation dealing with matters of civil or criminal justice.[40]
The polizia penitenziaria ("penitentiary police") is a law enforcement agency in Italy which is subordinate to the Ministry of Justice and operates the Italian prison system as corrections officers. The Vatican City, an independent state, does not have a prison system, so the Vatican sends convicted criminals to the Italian prison system.[41] According to Interpol, this force (as part of the Ministry of Justice) has a "nationwide remit for prison security, inmate safety and transportation".[42]
The polizia penitenziaria carries out the functions of the Judicial Police, Public Safety, Traffic Police and Corrections. They support other law enforcement agencies, such as with traffic roadblocks (known as a controllo).[43] The polizia penitenziaria is one of the four national police forces of Italy (along with the Carabinieri, the Polizia di Stato and the Guardia di Finanza), with each force performing a slightly different function.[44]
Judicial police
The polizia giudiziaria ("judicial police"), in Italy, indicates a civil service, exercised by subjects belonging to the Italian police forces and by certain officials of the Italian public administration; in the latter case in the cases expressly provided for by law. According to art. 109 of the Constitution of the Italian Republic, the Italian judicial authority directly disposes of the judicial police.[45] They exist primarily to provide evidence to the prosecutor. They can arrest and interrogate suspects, conduct lineups, question witnesses, and even interrogate non-suspects.[46]
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