Strasbourg, 3 April 2001
CCJE (2001) 31
Consultative Council of European Judges (CCJE)
Questionnaire on the independence of judges, their appointment and careers, and funding of the courts: reply submitted by Italy
I. THE INDEPENDENCE OF JUDGES
1. Is the independence of judges guaranteed by the Constitution or by legislation?
The independence of judges belonging to the "ordre judiciaire" is guaranteed by art. 104 of the Italian Constitution of 1948 ("The Judiciary is an autonomous order independent of any other power"). The basis for this rule lies in art. 101, which states that judges are subject only to the law.
Art. 108, § 2, provides that "The law will ensure the independence of judges of special jurisdictions, of the office of the Public Prosecutor attached to them, and of any other who assist in the administration of justice".
The answers to the questionnaire are referred only to judges of the "ordre judiciarie". As independence assured to special jurisdictions is of a lesser degree (such that guarantees of independence are not provided directly in the Constitution), a special investigation should concern these jurisdictions, whose independence is guaranteed by legislation (e.g. Administrative Tribunals, Council of State, Court of Accounts). For another remark concerning administrative judges, see § II-14 below.
2. What institutional safeguards are there with regard to the independence of judges?
According to art. 107 of the Constitution, "Judges shall be irremovable. They shall not be discharged or suspended, or transferred to other offices or functions except with their own consent or following a decision of the Higher Council of the Judiciary ("Consiglio Superiore della Magistratura", hereafter cited as C.S.M.), taken for the reasons and with the guarantees of defence laid down by the regulations of the judicial organisation. (...) The public prosecutor's office will enjoy the guarantees established for it by the rules governing the judicial organisation".
3. Is the irremovability of judges recognised?
Yes. However, please see § II-14 below.
4. Can the decisions handed down by judges be reviewed or set aside outside the appeals procedures provided for by law, by institutions other than the courts of appeal or cassation?
No, with the exceptions of amnesty or pardon.
5. Can a case be withdrawn from a judge? If so,
i. on what grounds?
ii. by which authority?
According to art. 25 of the Constitution, "No one shall be denied the right to be tried by his natural and lawfully appointed judge".
This implies that the judge for a case must be appointed on the basis of previously determined general criteria, which include the rules governing competence (established by law) and the rules governing distribution of cases within each court (established by C.S.M. every two years on the proposal of President of Court of Appeals upon the advice of local Judicial Councils, pursuant to art. 7-bis and 7-ter of Royal Decree 30 Jan. 1941, n. 12, as amended, hereinafter cited as "Rules governing the judicial organisation").
This also implies that, once a judge or a panel of judges have been appointed for a case, the case may not be withdrawn from them only:
a) in case of absolute impossibility for the judge to deal with the case or for serious reasons concerning the effectiveness of the judicial service, for civil cases (art. 174 Code of civil procedure); the authority competent for withdrawal is the President of the Tribunal, who must issue a writ appointing a judge of the same chamber; the writ is enclosed to the record of the proceeding; the writ may be challenged before the President of the Court of appeals;
b) in case of absolute impossibility for the judge to deal with the case (art. 7-ter above, for civil and criminal cases); criteria are determined by C.S.M.;
c) in cases in which the judge disqualifies himself or is disqualified upon request of one party in instances where: he, or a legal entity he represents, has an interest in the subject matter of the controversy; he or his spouse is a close relative, or a cohabitant or a usual table companion, of a party or a lawyer in the proceeding; he or his 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 has counselled, or acted as a lawyer, or served as a witness, or known as a judge or public prosecutor in the proceeding; he is attorney or agent or employer of a party; he has expressed his 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;
d) in cases in which security or public safety or freedom of self-determination of parties to a criminal trial are jeopardised by serious local upheavals that may not be otherwise be eliminated; in such cases the Court of cassation may, upon request of the Public prosecutor, transfer the proceeding to another court according to a "Case transfer table" annexed to the Code of criminal procedure (art. 45 Code of criminal procedure).
II. THE APPOINTMENT OF JUDGES AND THEIR CAREERS
1. What qualifications are required and what conditions must be met in order to become a judge?
According to art. 8 of the "Rules governing the judicial organisation", judges must be Italian citizens, enjoying civil rights and having always kept unquestioned moral behaviour.
2. Are judges recruited by competitive examination, on the basis of a professional examination or on the basis of their qualifications?
According to art. 121 of the "Rules governing the judicial organisation", in order to be recruited as a judge a candidate must have successfully served an apprenticeship of eighteen months as a judicial auditor. According to art. 123, candidates for posts of judicial auditors must pass a competitive examination.
However, art. 14 of Law 13 February 2001, n. 481 has added a new article in the "Rules governing the judicial organisation" (art. 126-ter), according to which lawyers with five years of practice or having served five years as honorary judges, aged less than 45, may be appointed judges after passing a competitive examination (in which more relevance is attributed to practical knowledge), parallel to the one for judicial auditors and regarding a number of posts not exceeding 1/10 of those to be covered by judicial auditors; successful applicants must serve an apprenticeship period of one year, at the end of which they are placed in seniority order after judges with three years of practice (plus apprenticeship).
3. What level of studies is required to become a judge?
According to art. 124 of the "Rules governing judicial organisation", as amended by Law 13 February 2001, n. 48, candidates for the judiciary must be law school graduates who - only for those enrolled in law school after academic year 1998/1999 - have successfully attended one of the post-graduate schools for preparation to legal professions established under Law 15 May 1997, n. 127. C.S.M. does not examine applications from candidates of questionable reputation or whose family members have been convicted for serious crimes.
4. Is previous professional experience required?
Previous professional experience is required only for parallel recruitment of lawyers (see § II-2 above).
5. Are there any age requirements?
With some exceptions, candidates to the judicial auditor position must be between the ages of 21 and 40 years (but see § II-2 above for parallel recruitment of lawyers).
6. Are judges elected?
No (with the exception of Judges of the Constitutional Court, some of whom are elected by Parliament, and some by members of the highest jurisdictions).
7. Or are they appointed?
No (with the exception of some Judges of the Constitutional Court, appointed by the President of the Republic, and some Judges of the Court of Cassation, appointed by C.S.M. among distinguished law professors and lawyers with fifteen years of practice (see art. 106 of the Constitution and Law. 5 August 1998, n. 303).
8. Or are they selected in another way?
With the above exceptions and with exceptions concerning honorary judges (e.g. justices of the peace), professional judges are recruited only by competition pursuant to art. 106 of the Constitution.
9. Which authority is responsible for recruiting judges?
C.S.M. is empowered to admit applicants to the judiciary pursuant to art. 105 of the Constitution.
10. Does any authority independent of the government and the administration take part in the selection or promotion process?
- if so, specify the composition and role of this body?
According to art. 104 of the Constitution C.S.M. is presided over by the President of the Republic; the First President and the Procurator-general of the Court of Cassation are "ex officio" members; the other members are elected as to two-thirds (i.e., 20 members) by all judges belonging to the "ordre judiciaire", and as to one-third (i.e., 10 members) by Parliament in joint session from among university professors of law and lawyers with fifteen years of practice. A Vice-President is chosen among these latter members.
According to art. 105 of the Constitution, "It will be the responsibility of the Higher Council of the Judiciary to designate, to recruit and transfer, to promote and to take disciplinary measures in respect of judges, in accordance with the rules of the judicial organisation".
11. How and by whom are judges promoted?
Promotion of judges is decided by C.S.M. pursuant art. 105 of the Constitution.
Evaluations are done by the local Judicial Councils (elected in each judicial district among the judges, and composed also by the President of the Court of Appeals and the Procurator-general of the same Court), whose recommendation is drafted each time a judge has reached the seniority needed for an advancement. Upon the recommendation of the local Council, as well as upon recommendation of the chief judge of the candidate's court, C.S.M. takes final decisions, keeping into account also relevant materials submitted by the candidate.
One of the main characteristics of the Italian system is the distinction between the degree in career reached by a judge, and the function that the same judge exerts. This was realised in the '70 through laws that, aiming at realising the strongest possible independence of the Judiciary, made possible e.g. for a judge in a Tribunal to gain the degree (and the compensation) of a judge in a Court of Appeals, while continuing to work in the Tribunal.
12. What are the criteria for promoting judges? Are they objectively defined?
Criteria for promotion to the various degrees of the judicial career, as well as to positions involving management of judicial offices, are defined by a corpus of laws and resolutions of C.S.M.
Legislative criteria mainly consist of: a) seniority; b) merit; c) professional ability for the post to be assigned. Whereas in the past the seniority rule prevailed in general on other criteria, for some posts recent laws (and a decision of the Constitutional Court) have inverted the perspective, stating that seniority is considered only in case of equal professional ability of candidates.
In general, the weight of the seniority rule is now less important; C.S.M. resolutions state objectively the relevance of criteria and the weight to be given to each, through complex formulas.
13. In what cases can a judge be removed from office?
According to art. 107 of the Constitution, "Judges shall be irremovable. They shall not be discharged or suspended ... except ... following a decision of the Higher Council of the Judiciary, taken for the reasons and with the guarantees of defence laid down by the regulations of the judicial organisation".
In Italy a judge may be removed from office as a result of a disciplinary proceeding, 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." Investigations are done either summarily by the Office of the Procurator-general or formally by the Disciplinary Section of C.S.M., sitting as a judicial body. If charges are brought, the Disciplinary Section hears and decides the case. The proceeding has a judicial nature, right of defence is guaranteed at all stages, and the code of criminal procedure (as in force before 1989) applies. Against the disciplinary decision, appeal is possible before the Joint Civil Chambers of the Court of Cassation.
One should note that 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 legislation2 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.
14. Do you wish to make any comments or mention any practical difficulties with regard to the independence and appointment of judges in your country?
A. For what concerns independence, 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.
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 193 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, 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 procedure4 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
B. For what concerns appointment of judges, one should mention that a quota of the judges of the Council of State (special jurisdiction) are appointed by the Cabinet (art. 19 of Law 27 April 1982, n. 186); but this is done on the advice of the Council of the Presidency of Administrative Magistracy, a body composed of administrative judges of the Council of State and of Regional Administrative Tribunals.
III. THE FUNDING OF THE COURTS
1. How are the courts’ activities funded?
Courts' activities are funded, except for what follows, on the State Budget - Ministry of Justice. This corresponds to the constitutional provision of art. 110, which states that: "Except for matters within the competence of the Higher Council for the Judiciary, the organisation and direction of all services connected with the administration of justice will be the responsibility of the Minister of Justice".
2. Give a brief description of the rules governing the setting of the budget for the judicial system and the courts.
The present accounting and administrative laws concerning the budget for the judicial systems in Italy provide for a centralised setting of all budget items.
As most expense items are directly managed by the Ministry of Justice, with a few exceptions in which funds are transferred from the Ministry of Justice to the Presidents of Courts of Appeals and Procurators-General of the same Courts, not in a judicial capacity but in their capacity as Delegates of the Ministry, the latter make provisional proposals only concerning the items they manage.
To complete the description, one should note that the Ministry directly pays sums and concludes contracts concerning: wages for judges and administrative staff; meal-tickets for personnel; vehicles; furniture and appliances; information technology; construction and extraordinary repairs of buildings (through funding of local Public State Building Agencies or loans granted by a State Loan Agency).
Delegates of the Ministry are competent (in some cases in concurrence with the Ministry itself) for: incentives, extraordinary indemnities and reimbursements to personnel; repairs to vehicles; furniture and appliances; photocopying; postal expenses; information technology.
The Administrations of Towns that are seat of Court buildings have to fund on their budgets some expenses concerning the same buildings (building repairs; electrical, heating and telephone expenses; janitors). In return, a yearly contribution (revised periodically) from the State Budget is assigned to Towns.
A special legal regime is established for the Court buildings in the Town of Naples (directly managed by a decentralised Special Office of the Ministry of Justice).
3. Do judges have any say whatsoever in decisions concerning funding or in managing the budget?
Judges as such (i.e., with the exception of the Chiefs of Courts in their capacity of Ministry Delegates) do not have any say in decisions concerning funding or budget management, except in the following cases:
a) in the field of so-called "Judicial Expenditures" ("Spese di giustizia"), i.e. expenses that are ordered by judges in their judicial capacity in connection with a civil or criminal proceeding (e.g. reimbursements and fees for witnesses, expert witnesses, interpreters, translators; payments for legal aid; service of documents; etc.); such expenditures are determined by judges autonomously as pertaining to the independent exercise of jurisdiction and are usually paid by postal offices upon orders issued by the judicial clerk;
b) in the field of so-called "Office Expenditures" ("Spese di ufficio"), i.e. expenditures for the acquisition of printed matter, registers, stationery, legal publications and their binding. According to the provisions of Royal Decree 30 January 1941, 12, the assembly of judges of each Court, with the participation of the Public Prosecutor and the Administrative Manager, forms each year a provisional budget (for prosecutor's offices, the decision is taken by the Procurator and the head of the Secretariat) and approves the definitive budget of the preceding year. Funds are made available by the Ministry to the local Delegates, who divide them among different Courts.
4. Do judges have adequate support staff and equipment, in particular office automation and data processing facilities, to ensure that they can act efficiently and without undue delay?
No. Italian judges - according to a number of deliberations of the National Judicial Association - believe that, notwithstanding an undoubted progress in recent years and more expected improvements, support staff and equipment is insufficient in general, and especially in some areas of activity (civil sector, where in numerous courts judges do not even have clerks assisting them) and some geographical areas (Southern and insular Italy).
5. Do judges encounter other material difficulties, which prevent them from acting efficiently?
No. The main material difficulties are related to limited support staff and equipment, and to organisational matters.
6. Are appropriate measures taken to assign non-judicial tasks to other persons?
Italian judges still feel they are loaded with a number of tasks of a non-judicial nature. Some measures have been taken to increase the number of judicial support staff as well as information technology resources, but the results may only be appraised in the future.
7. General comments on the funding of the courts
Comments have been incorporated in the answers above.