Strasbourg, 16 January 2007                                                                CCJE REP(2007)12

                                                                                                                             English only

CONSULTATIVE COUNCIL OF EUROPEAN JUDGES

(CCJE)

QUESTIONNAIRE FOR 2007 CCJE OPINION

CONCERNING THE COUNCILS FOR THE JUDICIARY

Reply submitted by

the delegation of Italy

questionnaire for 2007 Opinion concerning the Councils for the Judiciary

Part I - General context concerning the judiciary

1.      Is there possible interference of the legislative power concerning judges? If yes, please specify.

The legislative power in Italy has a number of competences concerning judges that in other systems are conferred upon the judiciary itself or the executive branch; e.g.:

·         determining geographic location and structural profiles of courts (which causes a lack of flexibility in adjusting the court organisation to the change in case-loads – see CCJE’s Opinion no. 6, para. 47);

·         financing through the State budget all aspects of the functioning of the court system (see Italy’s answers to the questionnaire for CCJE’s Opinion no. 2);

·         determining trial procedures in all aspects (therein included criteria designating the jurisdiction competent to deal with cases), with judicial interpretation and regulation, as well as protocols between lawyers and judges only being a residual tool (see CCJE’s opinion no. 6).

Some laws of Parliament have given rise to public debate and have been challenged before the Constitutional Court, as they contained provisions to be applied to proceedings already pending before courts.

2.      Is it possible for the legislative power, the Parliament or the executive power/the government to order investigations or to establish commissions :

§     in general concerning judges? If yes, please specify.

§     concerning judicial performance?

§     concerning facts already submitted to courts?

§     concerning procedural acts (eg. telephonic tapping, police custody)

According to art. 82 of Italy’s Constitution, any of the two chambers of Parliament may undertake inquiries in areas of public interest, by appointing Inquiry Committees composed of members in such a way that they are proportioned to political groupings existing in Parliament. The Committes may investigate with the same powers and limitations applicable to the judiciary.

There have been requests in Parliament to establish such Committees concerning judges and facts already submitted to courts (namely, a recent discussion concerned the possibility to establish a Committee addressing corrupt practices). The concept prevails that there might be overlapping as to the object of both parliamentary inquiries and court trials, but the scope and effects of each procedure should not interfere.

The executive branch, as such, has no power to establish investigative committees.

Problems of a similar nature as those posed by Inquiry Committees in the area of judicial activities have been experienced in Italy when:

- the Ministry of Justice, in availing itself of inspection powers, has sometimes requested access to specific information and/or documents concerning pending proceedings, and covered by secret, or has started disciplinary proceedings concerning members of the judiciary that were still entrusted with the specific case that had given rise to the purported violation;

- members of Parliament, availing themselves of their questioning prerogative, have asked the Minister of Justice (and sometimes directly the member of the judiciary involved) to appear in Parliament (or before a Committee) and report on a pending case and/or judicial performance.

3.      Is there possible interference of the executive power concerning judges?

Italy has, based on its Constitution that already in the late 1940’s called for the creation of a Higher Council for the Judiciary (Consiglio Superiore della Magistratura - CSM), one of the longest-established traditions of independence of the judiciary vis-à-vis the executive branch.

Reforms entered into force in 2006, and that may – according to political statements – be revised in the near future, have – according to the CSM as well as the Italian Association of Judges – limited in some areas such independence.

Whereas the Constitution stipulates that the CSM has competence over rectruitment, assignment of positions, transfers, career and discipline of judges (art. 105), and the Ministry of Justice is competent – in full respect of CSM’s prerogatives – only for organisation and fuctioning of justice services (art. 110) as well as starting disciplinary actions concerning judges (art. 107), still many areas imply co-operation (and, sometimes in the past, conflicts) between the Ministry and CSM; e.g.:

a.    appointment of Presidents of courts, for which an evaluation of candidates has to be expressed by the Minister;

b.    implementation of many of the decisions (for instance, in the fields of recruitment, transfer and career) taken by CSM, that may be based on or translate into administrative acts.

Reforms entered into force in 2006 increased the possible areas of interference, e.g. as to:

·         judicial training (so far included in the sole competence of CSM, as concering a guarantee of judicial independence); a Judicial Academy under a relevant supervision of the Ministry and a limited participation of CSM is envisaged, that should be competent both for training (initial and in-service) and evaluation (see, on the contrary, CCJE’s opinion no. 4);

·         disciplinary proceedings (since the Minister has not only the power to initiate a proceeding as per Constitution, but also to decide that it should be adjudicated contrary to the finding of the Prosecutor General);

4.      If yes, is it possible for the executive power to interfere:

§     in selection, training, career, disciplinary procedures of judges? (if yes, please specify       which authority from the executive power)

§     in designation of presidents of courts? (if yes, please specify which authority from the       executive power)

§     in management of courts? (if yes, please specify which authority from the executive        power)

Please see answers to question 3 above.

As for management of courts, judicial powers are extremely limited in Italy, as most powers belong to the Ministry (even when they are in some areas performed by delegating Presidents of Courts), so that chief judges may only organise – under measures taken by CSM – jurisdictional work; please see Italy’s answers to questionnaire in preparation for CCJE’s Opinion no. 2.

5.      Is the judicial staff working under the authority of:

§     a judge?

§     the president of the court?

§     the Ministry of Justice?

The Ministry of Justice has authority on judicial staff. However, when staff is assigned to a certain court, staff members – for what concerns their participation in jurisdictional activities – are subject to judicial determinations; a specific role is played by chief judges.

6.      What are the competences of the president of the Court:

§     to evaluate the work of the judges of the court?

§     to distribute the work between judges?

§     to act as a disciplinary authority vis-à-vis judges?

§     to intervene in the career of judges?

§     other? If yes, please specify.

A president of a Court – other than being entitled to report information to authorities – has no competence in the disciplinary area; however, he or she has a power of supervision, including the right/obligation to report facts that may be relevant for disciplinary actions.

A president issues reports that, together with other elements, are kept into account in the proceedings concerning evaluation and/or career of judges, resting in the sole competence of the CSM, acting based on the opinion of local Judicial Councils elected by judges of each Court of appeals.

As for distribution of work, whereas a president of a Court (and president of chambers, for courts subdivided into chambers) materially assigns cases to judges, in doing so he/she must respect objective criteria previously approved by the CSM, prepared by the same President and subscribed by the President of the Court of Appeals, after having heard the opinion of judges and local Judicial Councils, aimed at guaranteeing the principle of previous determination of the judge for each case.

Part II – General concerning Councils for the Judiciary

7.      Is there a Council for the Judiciary in your judicial system?

Yes, Italy has been the first country to have a “modern” Higher Council for the Judiciary, as envisaged in its Constitution.

8.      What is the exact title/denomination of this body? (In the case there is no such body, which department or structure - for example the Ministry of Justice - is responsible for the tasks of the Council?)

Consiglio Superiore della Magistratura (Higher Council for the Judiciary).

9.      What is the legal basis for the Council for the Judiciary:

§     the Constitution?

§     the law?

§     other? If yes, please specify.

The legal base for the Council is Italy’s Constitution entered into force in 1948, complemented by a law of 1958 (Law no. 195 of 24 March 1958) and an enforcement decree issued the same year; both acts have been further modified.

10.  Please, give a brief historical overview (when was it created, what were the reasons for setting up the Council, etc.) (in the case there is no such body, why there is no such Council and why do the tasks lay within for example the Ministry of Justice?)

The Council was created by the Constitution entered into force in 1948 with the aim to make effective the principle of independence of the judiciary from any other power, other than the law. The legislation of 1958 implemented the Constitutional provisions concerning the Council.

Part III - Composition

11.  What is the composition of the Council for the Judiciary:

§     Number of members?

§     Qualification of the members?

§     For the “judges” members, do they need specific qualifications or experiences?

§     Can non-judges be members of the Council? Please specify (number,       qualification/specific functions)

The Constitution (art. 104) envisages that the President of the Republic, who is also the Chairperson of the CSM, and the First Chief Judge and Prosecutor General at the Court of Cassation should be members of the Council "ex officio". The only other provision contained in the Constitution concerning composition is the requirement that two thirds of the other members  be elected among the ordinary judges and prosecutors belonging to the various ranks by their peers and one third chosen from among university law professors and practising lawyers with fifteen years’ experience by Parliament in joint session. Therefore, the number of elected members and the election procedures (that have been frequently changed by Parliament) are regulated by ordinary law.

Following the reform of Law no. 195 of 24 March 1958, introduced by Law no. 44 of 28 March 2002, the C.S.M. (formerly made up of 33 members) is currently made up of 27 members:

- the President of the Republic, who chairs the C.S.M.;

- the First Chief Judge at the Court of Cassation;

- the Prosecutor General at the Court of Cassation;

- eight members elected by Parliament (so-called "laymen");

- sixteen members elected by the judges and prosecutors.

The eight "lay" members are elected by Parliament in joint session by secret ballot and by a majority of three fifths of the members forming the assembly. After the second ballot, a majority of three fifths of voters is, however, sufficient.

The sixteen members elected by the judges and prosecutors are chosen as follows:

- in one national constituency, two members among members of the judiciary with the rank and function of judge or deputy prosecutor general at the Court of Cassation;

- in one national constituency, four members among members of the judiciary exercising the function of public prosecutor in the several local Prosecutor’s Offices or equivalent bodies;

- in one national constituency, ten members among members of the judiciary exercising the function of judge in the local courts or equivalent bodies.

Each judge or prosecutor expresses one vote, in a secret ballot, in each of the three constituencies. The election procedure provides for one electoral days in the courts, with opening of all the ballots cast in the same context before a central electoral committee at the Court of Cassation, to ensure full anonymity of the voting procedure.

Individual candidates propose their availability for election, with no “tickets” on the ballots, that are separate for each of the above constituencies.

Under the Constitution, elected members hold office for four years, and are not immediately eligible for reelection (art. 104).

The Constitution (Art. 104) also provides for the C.S.M. to elect a Vice Chair from among the members elected by Parliament.

The Vice Chair, who chairs the Presidency Committee, is entrusted with the task of promoting the C.S.M.'s activity and implementing its resolutions, as well as managing the funds in the budget. Furthermore, the Vice Chair is called to replace the President of the Republic if the latter is absent or unable to attend and to exercise the functions delegated by the President.

12.  Please describe the whole procedure of appointment:

§     Who designates the members (judges or other institutions or authorities – please    specify)?

§     What is the appointment system (voting, individual candidates, designation, etc.)?

Please see answers above.

13.  How is appointed the President and/or Vice-President of the Council?

Please see answers above.

14.  What is the term of office for a member of the Council?

Please see answers above.

15.  May a member be removed from office against his/her will and, if so, under what circumstances?

A member may be removed only by vote of the Council, upon the report of a specific Committee entrusted with verification of powers, in the case that a situation of pre-existing ineligibility or incompatibility is not removed, or supervenes during tenure. The situations giving rise to removal are specified in the texts of law above mentioned (e.g., for members elected by Parliament, retaining membership in the legal profession, membership in the board of commercial corporations or managing a business enterprise; for members of the judiciary, being a judge or prosecutor serving at the Ministry of Justice; for all members, having a close relative among other members, being member of Parliament or Regional Councils, being a Minister, etc.).

Members of CSM are also suspended “de iure” in the case of criminal (for judges, also disciplinary) charges for intentional crimes being brought against them; they are removed “de iure” if such charges are upheld by court decision.

Judicial review is possible.

Part IV - Resources

16.  Where does the Council receive its financial resources?

The Council has full autonomy of spending a budget which is allocated to it within general allocations of the State budget. A specific budget Commission is formed within CSM.

17.  Does the Council have its own staff?

The Council has its own staff, with a Secretary General (a member of the judiciary) in charge of it. Tasks that are not purely clerical (e.g., legal research; supervision of drafting of minutes of meetings, etc.) have been so far performed by members of the judiciary attached to the Council with the function of “judicial attachés”. Members of the judiciary serving in the CSM are presently 18 (including the Secretariat General). Clerical and other administrative tasks are performed by employees of the several categories (at present in the total number of 226), classified with the same ranks as in the Ministry. Since the reform entered into force in 2006 calls for the suppression of judicial posts in the CSM staff, political statements have now been made in order to keep this form of co-operation between judges/prosecutors and the CSM.

18.  If not, is the personnel provided by:

§     the Ministry of Justice?

§     the Supreme Court?

§     other institution? Please specify

See previous answer. The staff – thanks to a recent reform – is autonomously and fully managed by CSM itself, according the general rules of public administration; in the past, it was provided by the Ministry.

19.  What is the staff number?

See answer to point 17 above.

20.  What are the qualifications of the staff?

See answer to point 17 above.

21.  Must the staff be composed, albeit only in part, by judges?

See answer to point 17 above.

22.  What are the tasks of the staff of the Council:

§     preparing materials for the Council members?

§     providing them with analysis and evaluation of the courts’ practice?

§     other? Please specify.

See answer to point 17 above.

Part V - Tasks

23.  Please describe the different tasks of the Council for the Judiciary (in the case there is no such body, please specify which bodies are responsible for the below listed tasks – see also part VIII of this questionnaire):

§     in area of personnel policy (appointment and promotion of judges, appointment of the       Presidents or the Administrative Directors of the courts, determining the number and       location of judges or courthouses, transfer of judges, etc)?

The Council is competent for the above tasks, with the exception of appointment of administrative managers and determination of number and location of courts, for which the Ministry is competent (as for locations and numbers, with intervention of Parliament).

§     in area of initial and/or continuous training for judges and/or courts’ staff[1]?

At present, CSM is competent for training, as well as for discipline; in full conformity with CCJE’Opinion No. 4, as the disciplinary proceeding is dealt with by a separate section, acting as a court, against whose ruling an appeal before the Court of Cassation is possible.

See above as to the content of reforms entered into force in 2006, and to be implemented, that might instead be not in conformity with CCJE’s Opinions, as the role of the Ministry in a future Judicial Academy would prevail over the CSM’s, whereas the Judicial Academy would administer courses that would aim at the same time at training and evaluation of participants.

§     in area of courts’ performance in general (assessment of quality of court performance[2],   setting policy and performance standards and targets for courts, imposing penalties for   the misuse of funds)?

CSM is unfortunately not competent at all in the field of funding of courts.

As to assessment of quality of performance and setting of targets, CSM is also not competent – being this in the competence of the Ministry of Justice – but believes that some actions should be taken to fully realise the principle of independence of the judiciary also with regard to this area; mixed committees CSM/Ministry have been created with consultative functions; CSM has also requested that local Judicial Councils build up “Monitoring Committees” with the aim to review statistical data in order to improve organisation of courts.

§     in area of the individual work of a judge (evaluation of his/her work, setting up evaluation criteria as quality and/or quantity of judgements[3])?

CSM is competent in this area.

§     in area of disciplinary procedure against judge (has the Council power of initiative or         sanction, is appeal or another legal remedy available against sanctions, when the         Council has power in disciplinary matters does it respect the provisions of Article         6 of the            ECHR)?

See answers above as to disciplinary procedures and right of appeal before the Supreme Court of Cassation (adjudicating in Joint Chambers). It should only be added that the disciplinary proceeding is governed by the code of criminal procedure, in full respect of Article 6 ECHR. A discussion is underway as to some modifications of legislation contained in the reform entered into force in 2006, which influenced the disciplinary proceeding by providing for violations in case of close involvement of judges in political activities and by giving the Minister the power to disregard conclusions of the Prosecutor General and to directly bring a case before the Disciplinary Body.

§     in area of the budget for the judiciary (does the Council take part in the budget       negotiations with the Government or Parliament, does the Council have competences for          the subdivision of financial resources allocated to the courts, for the deployment of funds         by individual courts, which courts)?

Unfortunately the Council is not competent. Only with informal declarations the Council has sometimes called attention to lack of funds and resources.

§     in other areas not already mentioned above (e.g. participation in the law-drafting    process, reporting to the Government/Parliament about substantial problems in the court            system)? Please specify.

Under the law, the CSM must be consulted in the law drafting process of all laws that may concern administration of justice. It may also spontaneously submit its opinion to the Minister of Justice.

A report on the administration of justice is submitted to Parliament at regular intervals.

24.  Does the Council have investigation powers? If yes, please specify.

The Council as such (with the exception of the Disciplinary Body, sitting as a Court) has no investigation powers assisted by coercion and/or subpoena and/or application of criminal charges in case of non compliance.

However, it may avail itself – for administrative tasks – of the Inspectorate at the Ministry of Justice (proposals have been made to have the Inspectorate at the CSM).

Committees that prepare materials for the Plenary of CSM to rule upon may – and in fact frequently do – organise hearings with persons involved in a dossier (e.g. the applicant for a post of chief judge, judges of a court posing an organisational problem, etc.).

25.  How can the members of the Council have information on the concrete functioning of courts? (where do they receive information from, is the information analysed) Please describe

Most of the information comes from: documentation, reports from chief judges, statistical data, requests of the interested judge, decisions and/or opinions of local judicial councils, complaints for citizens and lawyers, reports from ministerial inspectors, dossiers submitted by investigating prosecutors, results of hearings.

26.  What are the types of norms that the Council can issue:

§     opinions on the functioning of the judiciary?

§     recommendations?

§     instructions to the courts?

§     decisions?

The law setting up the CSM entrusts it the power to issue quasi-statutory measures which may be divided into three categories:

a) internal regulations and administrative/accounting regulations, both of which are envisaged by the law. These are measures of secondary legislation, which can be issued by political/administrative bodies recognised by the Constitution, which aim at regulating the C.S.M.'s organisation and operation;

b) regulations covering the training of trainee judges and prosecutors, which is also expressly envisaged by the law constituting the C.S.M. It regulates the training of the judges/prosecutors once they have passed the entrance exam;

c) circular letters, resolutions and directives. Circular letters are used to self-discipline the exercise of the administrative discretionary power assigned to the C.S.M. by the Constitution and by ordinary laws. The resolutions and directives are used to propose and implement the application of judicial system laws.

27.  Are the functions or responsibilities of the Council described in law or other norms? Please specify.

Please see answers above.

28.  If yes, is the formulation of these tasks by legislation general, even declarative, or rather concrete and specific?

Please see answers above, from which the conclusion may be drawn that the formulation is general.

29.  Does your country have a code of ethics for judges and is it one of the tasks of the Council to guarantee its observance?

Italy was the first country in Europe to have a code of ethics for judges and prosecutors, which is not a list of disciplinary faults but rather a benchmark to measure quality of judicial behaviour. After the adoption of the code by the Judges’ Association, CSM has no further competence in this area. However, CSM makes reference to the code of ethics when evaluating judges and deciding on disciplinary issues. Please see, for details, Italy’s answers to the questionnaire in preparation for CCJE’s Opinion No. 3.

30.  Does the Council handle external relationships of the courts:

§     has it a public relations department?

§     how does it ensure the transparency of its functioning and organisation?

The Council does not handle external relationships of the courts, although it has issued recommendations to govern this area of activity.

A public relations office has recently been started.

As for transparency, all debates and deliberations of the Plenary, as well as of the disciplinary body are public, unless for subjects dealt with in secret.

Public debates in the Plenary are broadcast on a radio channel and accessible live on the internet.

31.  Are decisions of the Council published and available to all?

Decisions are published both on paper and electronically.

Part VI – Assessment of the self-governance and the independence of the judiciary

32.  To what extent is the work of the Council influenced by:

§     the executive power?

§     the legislative power?

The work of the Council as such is not influenced by external powers.

33.  Is the Council independent from other States entities, so that it is not subject to control liability in their respect?

           

Yes, it is.

34.  Which is the division of responsibilities and powers between the Council for the Judiciary and the Ministry of Justice?

Please see answer to question 3.

35.  Which is the division of responsibilities and powers between the Council for the Judiciary, the Supreme Court, the Supreme Court and the Presidents of the Courts?

The Council is responsible for management of the judiciary and protection of its independence. Some participation to its organisational role is recognised to chief judges, that take individual measures concerning their courts, file reports, make proposals etc.

36.  Is the Supreme Court or are the highest courts also subject to the exercise of the powers of the Council for the Judiciary, or do special rules apply to that respect?

Yes, they are.

37.  Who decides which the priorities of actions of the Council are?

The Council itself sets its priorities, by way of the Presidential Committee drafting its agenda.

38.  Is it possible for the individual courts or judges to appeal the decisions of the Council? How?

Administrative decisions may be appealed before an administrative court, and its decision in turn may be appealed before the Council of State.

Disciplinary decisions may be appealed before the Supreme Court of Cassation (Joint Chambers).

39.  Which instruments or practices are used by the Council:

§     to guard the independence of judges?

§     to protect judges from undue interferences and/or attacks coming from the general           public, the media and other powers of the State?

§     to intervene in case of attacks against its own interests[4]?

§     to improve the working methods of judges?

Please see Italy’s answer to the questionnaire in preparation of CCJE’s Opinion No. 6. In the event that a judge or a court is attacked by the press for reasons connected with the administration of justice, the Italian Council for the Judiciary holds that its constitutional competences include, in order to protect judges' and prosecutors' independence, the possibility to adopt resolutions declaring that an attack to the judge or prosecutor (coming from the press or from any other actor on the public arena) violates judicial independence. A number of such resolutions (so called "protective declarations" - It. "pratiche a tutela") have been adopted. The Council holds that the duty of discretion is less strict if the judge or prosecutor reacts to a campaign; however, a reaction by the Council itself is deemed preferable. The Italian Judges' Association, performing its obligation to care for its members' professional interests, also reacts in cases such as the ones mentioned.

As for improvement of working methods, the Council has devoted a significat effort to training actions aimed at promoting an organisational culture concerning case management and court management.

Part VII – Future trends of Councils for the Judiciary

40.  Are there particular fundamental problems concerning the administrative management of the courts vis-à-vis the role of the Council? If yes, please describe.

The central issue under discussion is the role of the chief judges vis-à-vis the administrative staff (depending from the Ministry). The Council is also concerned about organisation of courts, which is dependent also on resources (recently, limited) coming from the Ministry’s budget.

41.  Are reforms concerning the Council under discussion or envisaged in the near future? If yes, please describe.

Please see answers above.

 

42.  Are there relations between the Council for the Judiciary and judges' professional organisations or associations?

The Judges’ Association and the several groupings within it play some fundamental roles:

- they provide a cultural and organisational pre-requisite for elections of judicial members of the Council;

- they are sometimes heard within procedures concerning organisation of courts, training, and attacks to judicial independence.

43.  If your country is member of the European Network of Councils for the judiciary (ENCJ), what are the concrete added values of your membership:

§     concerning the national actions of your Council?

§     concerning international co-operation?

The creation of the ENCJ – to which the Italian CSM has participated since the very foundation, making available officers and resources – has represented a crucial step toward building a European awareness of the problems concerning independence of the judiciary.

The national actions of CSM are now more inspired by comparison and co-operation with partners in Europe. As for international co-operation, CSM is experiencing a fruitful process of communicating its know-how to partners that have created a Council more recently.

44.  Are there some other features concerning the Council for the Judiciary which might be of special interest to others from a comparative point of view? If yes, please describe.

The Italian CSM in its complexity has long been studied by comparative law scholars, being the first example of a modern Council for the Judiciary.

Part VIII – Countries without a Council of the Judiciary

45.  Are there mechanisms to ensure the functioning of the principle of separation of powers with respect to the judiciary?

46.  How and by whom are judges appointed and promoted?

47.  Does any authority (body) independent[5] of the government and the administration take part in the appointment and promotion process:

§     If yes, how is this authority composed? Is a certain share of judges fixed?

§     How are the members selected?

§     what are the detailed competences of the authority with respect to the appointment and    promotion of judges?

48.  How are the courts’ activities funded? Do judges have any say whatsoever in decisions concerning funding or in managing the budget?

49.  Is the creation of a Council of the Judiciary contemplated? If yes, what will be its competences?