Strasbourg, 14 February 2002                                                                             CCJE (2002) 11

[ccje/docs2002/CCJE(2002)11]                                                                                                                    English only

CONSULTATIVE COUNCIL OF EUROPEAN JUDGES

(CCJE)

QUESTIONNAIRE ON THE CONDUCT,

ETHICS AND RESPONSIBILITY OF JUDGES

Reply submitted

by the

delegation of Italy

Questionnaire on the conduct, ethics and responsibility of judges

1.         What are the statutory obligations by which judges are bound?

            Statutory obligations are implicitly contained in the rules governing disciplinary actions (see answer to point 6 below).

2.         Is there a judge’s code of conduct?

            Yes.

2.1              If so, who drafted it and who adopted it?

The Code was drafted and adopted by the National Judges' Association on 7th May 1994, pursuant the provision of Art. 58-bis of the Legislative Decree no. 29 of 3rd February 1993(as added by the Legislative Decree no. 546 of 23rd December 1993) adopted by government upon a delegation Law enacted by Parliament (Law no. 421 of 1992).

The Judges' Association, after a consultation of the judges, decided to adopt the code, although the aforesaid decree, in the part imposing adoption of such a code for judges, was probably to be challenged as to conformity to the Italian Constitution, since the Cabinet had exceeded from the delegation received by Parliament,[1] and the Constitution had been infringed in the part in which it reserves to Legislation the discipline of the Judiciary. The Judges' Association, in fact, believed that it was convenient,  in any case, to identify the ethical rules to which judges' behaviour must be inspired, according to their common feeling. It made clear, however, that the rules contained in the code are "indications of principle ... placed at a different level vis-à-vis the legal discipline of disciplinary faults".

2.2              What are the obligations imposed upon judges?

Art. 1 of the Code states the basic principles to which judges (including public prosecutors)  have to uniform their conduct in social life (dignity, correctness, sense of public interest) as well as in the exercise of judicial functions (personal disinterest, independence, impartiality).

Art. 2 sets the discipline of the relationships between judges and citizens.

Art. 3 imposes upon judges the obligations of labouriousness and continuing professional education.

Art. 4 establishes the modalities of use by the judges of structures and resources of the judicial administration.

Art. 5 sets the prohibition to make use of or to request confidential information.

Art. 6 establishes the discipline of relationships with the press and media.

Art. 7 prevents participation to associations that require fidelity pledges or that do not ensure complete tranparency concerning the participants.

Art. 8 aims to guarantee the position of independence of the judge, preventing participation to party politics and/or to business life.

Art. 9 aims to guarantee the position of impartiality of the judge, imposing the obligation to engage in overcoming cultural prejudice, as well as to examine with due attention the presence of situations imposing disqualification.

Art. 10 imposes on the judge duties of correct behaviour in any cases he or she requests advantages, or promotions, as well as in relationships with court personnel.

Art. 11, 12 and 13 regulate the behaviour of judges and public prosecutors in the exercise of their functions, to be performed with accuracy, attention to the interest and rights of all those involved, respect of confidentiality; specific rules provide for the impartial behaviour of the public prosecutors and their relationship with the judges of a case.

Art. 14 sets out the duties of judges and prosecutors entrusted with the function of Chief Judge or Chief Prosecutor.

2.3              Is there provision for sanctions in the event of violation by judges?

As mentioned above, violations of the Code do not have a clear-cut legal relevance. Sometimes, violation may not reach  the level to be relevant as a minor disciplinary offence; under other circumstances, violation will even involve a crime. Therefore, one must state that in the Italian system that the code embodies a set of rules aiming to serve as an instrument for self-control within the judicial profession, as well as a benchmark for claims on the part of citizens and other legal professionals, whereas violations may or may not involve sanctions of a disciplinary or criminal nature.

3.         What incompatibilities are there between the duties of judge and other functions or professions?

Articles 16 and following of  Royal Decree no. 12 of 30th January 1941 provide the discipline of incompatibilities between the duties of judges and other functions.

Art. 16 states that judges may not not accept public or private employment or functions, with the exception of member of Parliament or trustee (without compensation) of public charities. They may not exercise industry or commerce, nor any liberal profession.

They may not accept tasks of any other kind, nor sit in arbitration panels without the authorization of the Higher Council for the Judiciary.

In the exercise of its authorization power, the H.C.J. has become extremely strict in the field of arbitrations, believing that performing quasi-judicial duties, for compensation that frequently is very high, conflicts with the proper image of a judge that must place his or her services at the disposal of litigation heard in public proceedings. As a consequence, panel of arbitrators are in practise now exclusively composed of administrative judges and private lawyers. One should evaluate the compatibility of such stance with the development of ADR schemes and the role which is expected for the Judiciary in such schemes.

Different criteria have been adopted by C.S.M. from time to time concerning the exercise on the part of the judge of teaching and other cultural activities, with or without compensation.

Albeit in presence of rules that guarantuee - even at the constitutional level -  freedom of expression, teaching, and research, the H.C.J. recognizes that no authorization is needed only for publication activities on the part of judges.

Teaching and lecturing, that were also in the past considered outside the scope of the above mentioned Art. 16 because of the relevant constitutional freedoms to be considered applicable to judges, are now, on the contrary, often considered activities subject to authorisation, even if performed outside duty hours.

Controversy has also risen concerning:

- exercise on the part of judges and/or prosecutors of consultative or executive functions in Ministries and or public bodies; especially controversial is the assignment of such functions in the Ministry of Justice, where participation of judge is often explicitly provided for and desirable for a number of reasons; legislation has been proposed to deal with the problems involved and such proposals have become controversial;

- participation of national judges and prosecutors, on a full time or a part-time basis, to activities at the international level, an aspect which has become especially controversial when  activities are connected to international judicial co-operation;

The other norms in the field of incompatibilities (mainly, artt. 18 and 19 of the above mentioned Decree) concern cases of "incompatibility because of relations" with lawyers or judges. They basically refer to the event that: (a) a relative of the judge or of his/her spouse usually practices law (even if not enrolled in the local Bar Association) before the court to which the judge belongs; (b) two judges in the same judicial office are related.

Since only the second "incompatibility" is subject to waiver by decision of C.S.M., debate exists as to if the first rule is not a too wide limitation as it applies "objectively", even if there is no prejudice to impartiality (keeping into account that the judge has an obligation to disqualify himself in cases defended by relatives).

4.         In what circumstances can the impartiality or apparent impartiality of judges be called into question in accordance with the law or case-law?

In the Italian system the question addresses the cases in which the judge disqualifies himself or is disqualified upon request of one party, since his or her impartiality or apparent impartiality is doubtful.

Such case occur when: he or she, or a legal entity he or she represents, has an interest in the subject matter of the controversy; he (or she) or his (or her) spouse is a close relative, or a cohabitant or a usual table companion, of a party or a lawyer in the proceeding; he (or she) or his (or her) spouse is a party in a proceeding against, or has personal enmity or a creditor-debtor relationship with, a party or a lawyer in the proceeding; he (or she) has counselled, or acted as a lawyer, or served as a witness, or known as a judge or public prosecutor in the proceeding; he (or she) is attorney or agent or employer of a party; he (or she) has expressed his (or her) opinion on the charge before the decision (art. 51 and 52 Code of civil procedure; art. 34, 35, 36 and 37 Code of criminal procedure); in first instance cases, disqualification upon request of a party is decided by a panel of judges of first instance (in civil cases) or by the Court of appeals (for criminal cases); appointment of another judge is done according to pre-determined general criteria.

One may mention here that criminal procedure in recent years has known an expansion of the cases of incompatibility between the role of judge that has examined provisional measures (or has been invested of possible remedies against application of such measures), or has denied the application of plea bargaining, or has authorised or performed some  investigative acts, and the role of the judge who must decide the merits of the case.

This tendency - going well beyond the criteria established by case law of the ECHR in the field of impartiality - has been recently reinforced by the amendment (in force of Constitutional Law 23^rd November 1999, n. 2) of art. 111 of the Italian Constitution, which has re-stated the principle (already present in the system) of judicial impartiality.

A number of organisational problems, especially in small courts, have derived from the need that the judge who must judge the merits must be different, e.g., from the one who has authorised investigation acts, has applied a provisional arrest, or has examined remedies against the application of provisional measures, or has rejected an application for plea-bargaining.

5.         Can judges incur criminal or civil liability for acts committed in the performance of their duties?  If so,

5.1              In what circumstances?

5.2                          What is the procedure involved?

5.3              What is the competent institution or authority?

5.4                          What sanctions or compensatory measures can be applied?

Italian judges are subject,  in their capacity as public officials, to general criminal liability for offences they may commit. The matter is regulated by the relevant provisions of the Criminal Code, either addressed to all subjects or specifically to judges (corruption in judicial duties). Sanctions are those provided for each crime by the Criminal Code.

Judges are also liable from a civil point of view for damages resulting from "wilful deceit" or "gross negligence" in the exercise of judicial functions, or from "denial of justice". The issue of responsibility for damages has been regulated by Law no. 117 of 13th April 1988, enacted after a referendum which led to the abrogation of earlier rules severely limiting judicial civil liability. Liability for compensating damage - which follows general rules - rests with the State, against which the damaged party may bring suit; if the State's liability is established, the State may, on certain conditions, recoup against the judge (with a limitation of amount, in case the damage is not a consequence of wilful deceit).

Both criminal and civil actions in which a judge may be a party are subject to special rules of competence, in order to assure that such cases are not adjudicated by courts sitting in the same district to which the judge is serving. Criminal procedures follow ordinary rules. The civil suit for damages against the State is also governed by ordinary rules, but the commencement of the ordinary trial is subject to a "recognition of admissibility" to be granted by the Court (subject to appeal and recourse to the Court of Cassation) upon verification "prima facie" of existence of all pre-requisites for the action (inapplicability of any remedy such as appeal or complaints, observance of deadlines, object of suit not concerning interpretation of the law or evaluation of facts and evidence) as well as of the absence of "manifest groundlessness" (see Law no. 117 of 1988).

All the above procedures are tried by ordinary Courts; civil suit are to be adjudicated in the first instance  by a panel of three judges, and not by a single judge.

6.         Can judges be subject to disciplinary proceedings?  If so,

6.1              In what circumstances?

6.2                          What is the procedure involved?

6.3              What is the competent institution or authority?

6.4              What disciplinary sanctions can be imposed?

Italian judges are also subject to disciplinary responsibility.

Art. 18 of Law n. 511/1946 states as reasons for starting a disciplinary proceeding the cases of a "judge lacking to perform his judicial duties or keeping a public or private conduct making him not deserving the trust and consideration he must enjoy, or reflecting adversely on the prestige of the Judiciary". Although there was proposed legislation[2]aimed at defining "in precise terms by the law" reasons to be considered valid to start a proceeding (see Council of Europe Recommendation n. R (94) 12, Principle VI, § 3), no such legislation has been so far enacted.

In this situation, the definition of disciplinary faults rests on the case law.

The proceeding is initiated by the Prosecutor-general of the Court of Cassation or requested by the Minister of Justice according to artt. 107 of the Constitution, 17 and following of Royal Decree-Law 31 May 1946, n. 511, "Guarantees of the Judiciary", and 4 L. 24 march 1958, n. 195, "Institution and functioning of C.S.M."

The procedure, as provided for in the above norms, which make reference, for any other aspect, to the Code of Criminal Procedure of 1930,  is entirely jurisdictional in nature.

Investigations are done either summarily by the Office of the Prosecutor-general or formally by a member of the Disciplinary Court. The Court consists of a panel of nine judges presided upon by the Vice-President of C.S.M. (unless the President of the Republic requests to chair the Court); the eight judges are elected by C.S.M. among its members, two of whom must be C.S.M. members appointed by Parliament. Although it is a judicial body, the Court is know in practice as "the Disciplinary Section of C.S.M."

If charges are brought, the Disciplinary Section hears and decides the case. Right of defence is guaranteed at all stages. The Court may suspend the judge from judicial functions and salary; suspension is mandatory in the case of arrest of the judge. Against the disciplinary decision, appeal is possible (by the judge or the Minister of Justice or the Prosecutor-general) before the Joint Civil Chambers of the Court of Cassation.

One should note that - apart from the disciplinary proceeding, taking place with the guarantees of a criminal proceeding as mentioned above - Italian legislation also provides for a so-called "para-disciplinary proceeding" that is quite controversial in scope, procedure, as well as sufficiency of guarantees for the independence of the judge (see answers to the previous questionnaire on the independence of the Judiciary and the expert opinion by Mr. Oberto).

More specifically, Art. 2, § 2 of the above mentioned Royal Decree-Law of 31 May 1946, n. 511, "Guarantees for the Judiciary", provides that:

"They [Judges] may, even without their consent, be transferred to another judicial office or to different functions, by a deliberation of the Higher Council for the Judiciary, when they fall into one of the cases of incompatibility as provided for by artt. 16, 18, and 19[3] of the "Rules governing the judicial organisation" approved by Royal Decree 30 January 1941, n. 12, or when, for any reason even not consequent to their fault, they may not, in their seat of office, administer justice in the conditions required by the prestige of the Judiciary".

This rules provides for a transfer of judges without their consent because of incompatibility deriving from a relation with lawyers or other judges of the court (see above), as well as because of "functional" or "environmental incompatibility" ("incompatibilità funzionale o ambientale").

Practice shows that transfers have been decided, in most cases, to remove situations of conflict between judges or prosecutors of the same office (often with echoes in the media), or between a judge and the local Bar, that adversely reflected on the administration of justice; to eliminate embarrassment consequent to cases in which judges had, even unwillingly, friendly relations with persons of questioned reputation; to strengthen independence of judgement in cases in which other judges had made public statements concerning integrity of persons involved in investigations.

The procedure for transfer is not established by the law, and the Higher Council for the Judiciary has introduced a procedure[4] on an administrative basis, so as not to leave the judge with no guarantees at all.

           

Although so far this institute has been believed compatible with the constitutional principle of irremovability, a number of doubts have been raised concerning:

a) the extreme lack of precision of the legal base for the transfer procedure, which reflects into sometime indefinite charges brought against judges;

b) the difficult compatibility with the rules of due process (see Recommendation No. R (94) 12) with regard to:

1) the identity of the organ starting the proceeding and the organ that takes the final decision;

2) the conduction of investigations (see below);

3) the right of defence (since the judge is not allowed to be heard with a final argument - see below);

4) other aspects mentioned below.

This transfer procedure differs from a disciplinary procedure as the former does not need as a requisite a fault or a responsibility of the judge, i.e. it does not lead theoretically to a "punitive" decision; consequently, the same facts may be examined in a disciplinary procedure and in an administrative "functional incompatibility" procedure. Because of the alleged different nature of the proceedings, the Disciplinary Section of C.S.M. may be well composed of members who have already examined the same facts in an "functional incompatibility" proceeding.[5]

The procedure is started "motu proprio" by C.S.M. upon request of one of its members, the Minister of Justice or any other person filing a claim. Often the procedure is started on the basis of information obtained by C.S.M. concerning criminal investigations started against a judge.[6]

The judge receives written information concerning charges, although they may be precisely defined only during the proceeding; is heard by a Commission, assisted by counsel, and may file a memorandum; the Commission proceeds to investigations and deposits all documents at the end of investigations; the judge is assigned a short term[7]to file a written defence. The Commission either proposes to the Plenary Assembly of the Council the dismissal of charges, or requests the transfer. The judge may be heard by the Plenary Assembly after the rapporteur and before discussion and decision.

The procedure is concluded by an administrative act taken by the Council (ordering the transfer or dismissing the charge). The decision is discretionary as to appraisal of facts.

The decision may be challenged before administrative courts; judicial control, however, because of the alleged discretionary nature of the decision, may concern only verification of the facts and the logical developments of reasons for the decision, not the appraisal of the same facts such as to determine a situation of incompatibility, which is discretionary.

For a number of years after the creation of C.S.M., very few proceedings of this kind have been initiated, since there were even doubts concerning the "survival" of the legal base after the enactment of the Italian democratic Constitution. In recent years, proceedings have become more and more numerous, a fact that has increased the debate. Debate also concerns the fact that no time limits are set for: a) starting of the procedure with notification of charges to the judge after registration of relevant information at the Commission; b) conclusion of investigations with a proposal by the Commission. Pending charges, in fact, may in some cases be used for the professional evaluation of a judge, even if not decided upon, with consequent risks of an instrumental filing of claims.

Removal of at least some of the most controversial characteristics of the procedure has been attempted by:

a) the proposal of Law n. 1247-bis/Senate - XIII Legislature - by the Minister of Justice, "Rules concerning disciplinary responsibility and incompatibility of judges of the "ordre judiciare"";

b) the proposal of modification of C.S.M.'s resolutions concerning the procedure, n. 202/95 - I Commission.

Both proposals have so far had no outcome.