Italy's judicial system
The Constitutional jurisdiction
Constitutional jurisdiction is attributed to the Constitutional Court, composed of fifteen judges, with one-third each nominated by the President of the Republic, by Parliament in a joint sitting and by the ordinary and administrative supreme courts (Article 135 of the Constitution).
The Constitutional Court judges (Article 134 of the Constitution): a) on controversies relating to the constitutional legitimacy of laws and enactments having the force of law, of the State and the Regions; b) on jurisdictional disputes between the powers of the State and those between the State and the Regions and between the Regions; c) on the accusations made against the President of the Republic, in accordance with the Constitution (cfr. Article 90 of the Constitution).
The constitutionality of laws may be introduced primarily by specifically empowered subjects (State, Regions, autonomous provinces; cfr. Articles 37-42 l. Constitution 11 March 1953, number 87), or incidentally by a judge who, during the case, doubts the constitutionality of the law to be applied to the individual case.
The issue of constitutionality must, in the latter case, be relevant for the decision of the case and not manifestly unfounded (cfr. Article 1 l. Constitution 9 February 1948, number 1; Articles 23-30 l. Constitution 11 March 1953, number 87).
The Ordinary jurisdiction
Ordinary jurisdiction is organised by ordinary magistrates considered such because they are established and governed by the judiciary rules (Article 102 of the Constitution; Articles 1 and 4 r.d. 30 January 1941, number 12) and their differentiation from other judges comes from the requirement of independence provided for by the Constitution (Articles 101-104 of the Constitution) and also for their being subject to the power of the Supreme Judicial Council (for the composition and functioning, 1. 24 March 1958, number 195 and Presidential Decree of 16 September 1958, number 916), which constitutes the self-governing body.
The organisation of the Italian judiciary has its constitutional status in Articles 101-113 of Title IV of the Constitution. Before the reform, the judiciary was governed by the provisions of Royal Decree of 30 January 1941 number 12, by Royal Decree of 31 May 1946 number 511, by the law of 24 March 1958 number 195, as well as a number of provisions contained in subsequent laws which were enacted to adapt the judicial system provisions prior to the Constitution.
Legislative sources of secondary judicial status consist of regulations and circulars issued by the Supreme Judicial Council.
The legal reform was implemented through six legislative decrees adopted pursuant to the enabling law reform of 25 July 2005 number 150, subsequently amended by the law of 30 July 2007 number 111.
The more relevant aspects of the reform concerned the access to the judiciary, the professional evaluation system of judges, initial and ongoing training, the organisation of prosecutor offices, the shifting from prosecuting functions to judicial functions and also the disciplinary system.
Ordinary jurisdiction is divided into two sectors: criminal law, the object of which is the decision whether or not to prosecute taken by the public prosecutor against a given person; civil law, aimed at the legal protection of rights pertaining to relations between private individuals or between them and the public administration, when in the exercise of its duties this adversely affects the subjective right of another person.
Criminal proceedings are brought by the magistrate, who also belongs to the ordinary courts, of the prosecutor office (Article 107, last paragraph, of the Constitution).
Civil proceedings may be brought by any public or private person (called actor) against another person who is the recipient of the request (called defendant).
Civil and criminal judgements are governed by two different procedural rules: the Code of Civil Procedure and the Code of Criminal Procedure.
Article 111 of the Constitution expressly guarantees in any case – civil, criminal, administrative or financial – the rule of a fair trial, according to which every process must take place in the form of a debate between the parties, on equal terms, before a third party and impartial judge and it must have a reasonable duration.
The right to a reasonable duration of the case has been expressly recognised with law of 24.3.2001 number 89, which gives the parties the right to request, where there is a violation, fair financial compensation from the State.
Ordinary jurisdiction is administered by “professional” judges and by “honorary” judges, both forming part of the judiciary (Article 4 r.d. 30 January 1941, number 12).
Distribution of judicial courts in the national territory
The first instance jurisdiction, either in civil and criminal matters, is exercised by judicial bodies as follows:
- Justice of the Peace, which is a monocratic honorary body
- Ordinary Tribunal, trying cases in monocratic or collegiate composition, depending on the kind of cases
- Juvenile Court, trying cases in collegiate composition, including experts for minors
- Supervisory Court, trying cases in monocratic or collegiate composition (including outside experts).
At the first instance level the prosecuting duties are performed by:
- Public Prosecutor’s Office at the Ordinary Tribunal (also for crimes coming under the jurisdiction of the Justice of the Peace)
- Public Prosecutor’s Office at the Juvenile Court
- General Attorney at the Court of Appeal, concerning crimes falling to the Supervisory Court.
The second instance jurisdiction is exercised by judicial bodies as follows:
- Court of Appeal, for the appeals brought against the orders/judgements of the Ordinary First Instance Tribunal and of the Juvenile Court;
- Ordinary Tribunal, for the appeals brought against the decisions taken by the Justice of the Peace (and also for the appeals against personal freedom orders);
- Supervisory Court, for appeals brought against decisions/orders taken by Supervising judges.
The second instance prosecution is exercised by the Second Instance Court’s Attorney General Office.
The jurisdiction on legitimacy of judgements is exercised by the Court of Cassation; in the last instance proceeding, the prosecution is delivered by the Prosecutor General at the Court of Cassation.
Lastly, it should be noted among the prosecution bodies also the National Antimafia and Antiterrorism Direction, which is a National Prosecuting Co-ordination Body (Government Decree 160/2006).
The honorary judiciary today consists essentially:
Of Justices of the Peace (law of 21 November 1991, number 374; Presidential Decree of 28 August 1992, number 404), who are given jurisdiction both in civil and criminal matters, on cases of minor value or of mild offensiveness, which are excluded from the competence of professional judges;
Of aggregated honorary judges (law of 22 July 1997, number 276; delegated legislation of 21 September 1998, number 328, converted into law on 19 November 1998, number 221), which make up the cd. excerpt sections established to eliminate pending civil affairs as at 30 April 1995;
The honorary court judges (cd. g.o.t.) of support in judicial offices and honorary deputy prosecutors (cd. v.p.o.) within the investigators office;
The tribunal experts and the Court of Appeal section for minors;
The lay judges of the Court of Assizes (law of 10 April 1951, number 287);
The auxiliary judges of the Court of Appeal (delegated legislation of 21 June 2013, number 69, converted with amendments by the law of 9 August 2013, number 98;
The expert members of the supervisory court (see Article 70 of the law of 26 July 1975, number 354);
The expert components of the special agricultural sections (see Articles 2-4 of the law of 2 March 1963, number 320).
According to the provisions of Article 1 R.D. 12/1941, “Justice, in civil and criminal matters, is administered: by the Justice of the Peace, by the Court, by the Court of Appeal, by the Supreme Court of Cassation, by the Juvenile Court, by the Supervisory Magistrate, by the Probate Court”.
In particular the courts are distributed throughout the country as follows: 140 courts and 404 Offices of the Justices of Peace; 26 Regional Courts of Appeal, with second-degree competencies; the Supreme Court of Cassation situated in Rome, being the highest court in the system of remedies and judge of legitimacy.
The special jurisdiction
The Constitution (Article 102 of the Constitution) prohibits the establishment of new “extraordinary or special” judges, in the ordinary jurisdiction allowing the creation of specialised sections in certain area, characterised by the presence in the same judicial body of ordinary judges and qualified individuals from outside the judiciary (for example, the special agricultural sections).
There are special judges provided for, such as the Administrative Courts, the Court of Auditors and the military judge, already existing when the Constitution entered into force (Article 103 of the Constitution).
The Court of Auditors is composed of accounting magistrates and within it there is established a Prosecutor General which is provided with prosecution functions. An organ of self-government is the Governing Council of the Court itself.
Besides expertise in preventive control of legitimacy of numerous acts of the Government and of other public bodies and of follow-up on budget management and assets of the public administration, the Court of Auditors is responsible for the legal actions regarding public accounting, pensions and the responsibilities of employees and officials of the State and of other public entities.
The military judges, who are attributed jurisdiction over military offences committed by members of the Armed Forces, form a distinct order from the ordinary courts, administered by an independent governing body, namely the High Council of Military Judiciary.
Administrative jurisdiction is attributed to a number of organs that are distinct from the ordinary courts: regional administrative courts, such as courts of first instance, and the Council of State, as a court of second instance.
The self-governing body of the administrative courts is the Presidency Council of the Administrative Courts, formed, apart from the President of the State Council, by four magistrates serving in the Council of State, by six magistrates serving in the regional administrative courts even lay members, namely four elected citizens – two from the Chamber of Deputies and two from the Senate of the Republic by an absolute majority from among full law Professors at the University or among lawyers with twenty years of professional practice. The body also consists of supplementary members, chosen from among the magistrates of the State Council and the regional administrative courts. The current composition with the presence of lay members is due to the modification of Article 7 of the law of 27 April 1982, number 186, containing regulations for the administrative jurisdiction, made by the law of 21 July 2000 number 205 and in particular by Article 18.
The administrative judge exercises the judicial review (and not the merit, in the sense of opportunity) of administrative acts: the appeal before the administrative courts is aimed at obtaining the judicial annulment of an administrative act which is assumed to be vitiated due to incompetence, violation of the law or abuse of power.
In general, the jurisdiction of the ordinary and the administrative courts is identified by reference to the subjective position – subjective right and legitimate interest – claimed in court: the administrative jurisdiction (subject to particular matters within the exclusive jurisdiction of the administrative judge, which recently were increased by the law of 21 July 2000, number 205) is the judge of the legitimate interest.