Judiciary of Italy
Part of the Politics series |
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 joins the magistracy, they are eligible to serve until they reach the mandatory retirement age. Any disciplinary actions against a magistrate can only be imposed by the self-governing body of the magistracy to which they belong. The structure of the Italian judiciary is divided into the ordinary judicial circuit and the special judicial circuit. The ordinary judicial circuit handles civil and criminal matters. In this circuit, inferior courts have original and general jurisdiction over civil and criminal disputes, while appellate courts review cases on appeal from these lower courts, focusing primarily on the application of legal principles. The specialised judicial circuit comprises courts with jurisdiction over administrative, tax and audit matters. LawThe Italian legal system operates within the civil law tradition with a foundation in Roman law principles. This system emphasises codified statutes and legal codes as primary sources of legal authority, contrasting with common law systems where judicial precedents are more influential. General PrinciplesThe Law of Italy, deeply embedded within the civil law tradition, is characterised by a systematic and hierarchical arrangement of legal norms. This structure is influenced by foundational principles that include the rule of law, the protection of fundamental rights, and the separation of powers. Central to these principles is the notion of legal certainty, ensuring that laws are clear, publicised, and stable, facilitating compliance and enabling predictability in legal outcomes. Sources of lawIn Italian law, sources are broadly classified into two categories: sources of cognisance and sources of production. Sources of cognisance are those through which the content of legal norms becomes known, including legal publications and official gazettes. Sources of production, on the other hand, are the mechanisms by which legal norms are created or modified. These include the Constitution, legislation, regulatory decrees, and international treaties.[2][3] Although the Constitution does not recognise case law as a formal source of law, it entrusts the judiciary, notably the Corte suprema di cassazione, with the responsibility to ensure strict adherence to and impartial application of the law. Similarly, case law is not explicitly mentioned as a legal source in Article 1 of the preliminary provisions of the Civil Code.[4] Hierarchy of lawThe hierarchy of legal norms in Italy is anchored by Constitution of 1948, which is the supreme law of the land. It establishes the foundational legal framework and principles that guide the creation, interpretation, and application of all other legal norms. Below the Constitution, the hierarchy includes primary legislation (laws passed by the Parliament as well by regional assemblies), secondary legislation (regulations and decrees issued by the executive), and tertiary norms (local laws and regulations).[5] The Constitutional Court plays a crucial role in maintaining this hierarchy, ensuring that statutory laws and regulations are in conformity with the Italian constitutional law. Legal codificationThe Napoleonic civil code.[5]
The Penal Code's evolution is particularly noteworthy. The first comprehensive Italian Penal Code, known as the "Zanardelli Code" after its author Giuseppe Zanardelli, was enacted in 1889, featuring liberal principles including the abolition of the death penalty. In contrast, the 1930 Penal Code, often referred to as the "Rocco Code" after Minister of justice Alfredo Rocco, marked a shift in Italy's criminal law framework. This code reintroduced the death penalty and included provisions that emphasised state security and public order, reflecting the legal and social context of its time under the Fascist regime. Subsequent modifications to the Penal Code, especially following the adoption of the Constitution in 1948, have been aimed at aligning the legal system with the principles of democracy, human rights, and the rule of law.[5] Constitutional principlesThe foundational attributes and roles of the Italian Judiciary are delineated primarily by the Italian Constitution, supplemented by statutes of constitutional significance. IndependencyAs stipulated in Article 104 of the Constitution of the Italian Republic,[6] the judiciary operates as an autonomous branch of the State, charged with interpreting and applying the laws of the Italian Republic .
Article 101 reinforces this autonomy, asserting that magistrates are bound solely by the law, thus insulating their decision-making from influence by other state powers or other magistrates' judicial decisions (so-called 'external independency'). This independence is further characterised by a non-hierarchical structure among magistrates, with distinctions made only based on the functions vested in them (so-called internal independency), as per Article 107 paragraph 3.[7] Public prosecutors offices are independent, and cannot be influenced by the legislative, executive or political power in general. Prosecutors have a legal monopoly over the initiation of criminal proceedings, thereby acting in full independence but endorsing some form of direct, or indirect, responsibility vis-à-vis the public.[8] AccountabilityArticle 28 of the Constitution holds accountable public servants and employees of public bodies under criminal, civil and disciplinary laws for any act carried out to the detriment of citizens' rights.[9] This accountability extends to the State and public entities involved in the administration of justice.[9] Italian magistrates are not directly liable for acts owing to the exercise of judicial or prosecutorial functions. Law 117/1988 of 13 April 1988 applies the principles laid down in Article 28 of Constitution by allowing individuals to file a liability claim against the State where a magistrate willfully or carelessly carried out judicial or prosecutorial duties, or a denial a justice was brought about owing to the magistrate's conduct.[10] In the event of liability, the State can claim reimbursement of damages to the concerned magistrate within the limit of one-third of annual salary.[10] RecruitmentAccess to the ordinary, administrative, tax or audit magistracy 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 subject to electoral appointment. 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),[11] who only operate within the Corte Suprema di Cassazione Discipline and organisation
Judges and public prosecutors, once appointed, enjoy security of tenure, subject to removal only with their consent or by decision of their governing body, based on specific legal grounds. The Parallel to the ordinary judiciary, the special judiciary is governed by separate independent bodies. The administrative magistracy operates under its own governance, as outlined in Article 120 of the Constitution; likewise, the audit and tax magistracies are governed by distinct independent institutions.[14] Governance of administrative magistrates is vested in the Managing Board of the administrative justice, established by ordinary law no. 205/2000, whereas audit and tax magistrates' governance fall under the purview of the Presidency Council of the Court of Auditors and the Supreme Council of Tax Justice, respectively. CourtsThe two main courts foreseen by the Italian Constitution are the Corte Suprema di Cassazione and the Consiglio di Stato. The former operates within the judiciary framework, particularly guided by the principles set forth in Article 111 of the Constitution,[15] functioning as Italy's apex court in the system of appeals. This court is mandated by law to ensure the exact and uniform application of the law in disputes pending before Italian courts,[16] exclusive of fact-related issues. However, as per Article 101 of the Constitution, which states, "The justice is administered in the name of the people. Judges are subject only to the law,"[17] the decisions of the Corte Suprema di Cassazione, while highly authoritative and persuasive, do not have formal binding precedent. In reality, the principles set forth by this court bind the court where a case is remanded and, to some extent, inform the application of the interpreted provisions in similar future cases.[18] The Consiglio di Stato, explicitly referred to in Article 100 of the Constitution, fulfills a twofold role. It acts as an advisory body to the executive, ensuring lawful administrative action, and as an administrative court, it protects citizens' rights against public administration, ensuring that administrative decisions comply with legal standards. In the Italian legal system, the Consiglio di Stato ("Council of State") is a body of constitutional significance. As per Article 103 of the Constitution, the Consiglio di Stato must remain neutrail vis-à-vis the Italian public administration.[19] Procedural principlesThe Constitution articulates several principles that define the judiciary's legal framework and prerogatives. Judges must be predetermined by law, as mandated by Article 25, ensuring that no judge is specially appointed to a case, thereby safeguarding judicial impartiality. Moreover, Article 102 paragraph 2 prohibits the establishment of extraordinary or special tribunals, reinforcing the judiciary's consistency and independence.[20] The Italian judiciary has also authority over the Italian judicial police,[21] integrating its role in the enforcement of law and order within the Italian legal system. Legal statusGeneral provisionsMagistracy, in Italy, designates one of the three independent powers of the State, depository of the judicial power, to which belong magistrates, namely, those who are called upon by law to read and apply statutes, administrative acts and non-constitutional sources in cases brought before courts, including, but not limited to, disputes among individuals. Magistrates have jurisdiction to apply constitutional sources and ensure protection and enforcement of rights created upon individuals. Yet, the constitutional review of any legal source rests exclusively with the Corte Costituzionale (Constitutional Court),[22] an independent institution foreseen by the Constitution[23] which falls outside the judiciary.[24]
Given the constitutional importance, the ordinary and special magistrates' legal status is primarily governed by Section I of the Constitution (in Title IV, Part II), and completed by statutes as regards the salary, certain employment-related benefits (e.g. days of holidays), retirement and pension, as well as the possibility to temporarily step out of tenure to work in other branches of the administration.[25] Additionally, the legal framework recognises the unique responsibilities and risks associated with judicial functions, particularly for those serving in the criminal justice system. Public prosecutors and judges working within criminal divisions are entitled under the law to carry firearms, a measure aimed at enhancing their personal security given the potential threats they may face due to the nature of their work.[26] Judicial streamThe Italian judiciary is the system of courts that adjudicates disputes and intervenes ex officio where the law so requires, thereby interpreting, defending and applying the law in the Italian Republic. Within the Italian judiciary, the ordinary judicial circuit, wherein civil and criminal courts are comprised, is separated from the special judicial circuit, that embeds courts with jurisdiction over administrative, tax and audit courts. The structure of the Italian judiciary is divided into one, two or three tiers (gradi, sing. grado): primo grado (first instance), secondo grado (instance of appeal) and ultima istanza (last resort) also called terzo grado (third tier) depending on the judicial circuit competent to hear the dispute at hand. In general, inferior courts have original and general jurisdiction, intermediate appellate courts hear cases on appeal from lower courts, and courts of last resort rule on appeals from lower appellate courts on matters of interpretation of the law.[27] The 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.[28]
It does not have jurisdiction over the special judicial circuit, which includes administrative, tax, and audit courts. These specialised areas of law are managed by separate courts with specialised supreme courts, such as the Consiglio di Stato for administrative disputes and the Corte dei Conti for public finance matters. Ordinary judicial circuitCivil mattersGiudice di paceThe Giudice di pace (Court of peace) is the court with original jurisdiction for less significant civil matters. In 1991, the court replaced the old preture (Praetor Courts) and the giudice conciliatore (judge of conciliation).[29] TribunaleThe Tribunale (Tribunal) is the court with general jurisdiction for civil and criminal matters. One notable feature of the Tribunale's proceedings is the requirement for legal representation. Unlike some jurisdictions where parties can represent themselves (pro se), in most subject-matters before the Tribunale, individuals are mandated to seek the assistance of an Italian attorney at law (avvocato). In the judicial arrangement of the Tribunale, the panel is composed variably of either a single judge or a panel of three judges. This structure is contingent upon the complexity, significance and the subject-matter of the case at hand. In scenarios where the matters are straightforward or less significant, a single judge (giudice monocratico) presides over the proceedings. Conversely, for cases of greater complexity or higher importance, a panel of three judges (collegio) is convened to ensure a more comprehensive evaluation and decision-making process.[30] Additionally, Tribunals also hear cases on appeal from Courts of Peace. In this appellate capacity, the adjudicating panel is consistently composed of a single judge. This structure underscores the Tribunal's role in providing a secondary level of review and adjudication in the Italian legal system.[30] Divisions and Specialised DivisionsThe internal organisation of tribunals is structured in several divisions, each of which hear specific types of claim.
Corte d'appelloThe Corte d'appello (Court of Appeal) has jurisdiction to hear cases on appeal from tribunals. Courts of appeal in Italy are competent to retry cases and reassess the legal analysis made in the first instance, limited to the issues raised by the parties in the appeal. Typically, each Corte d'appello is divided into at least three specialised sections: one for civil affairs, another for labour cases, and a third for criminal matters. This division ensures that cases are reviewed by judges with expertise in the relevant legal domain.[34] The jurisdiction of the Corte d'appello is geographically defined, covering cases from tribunals located within its designated district. This territorial demarcation is a key aspect of its operational scope.[34] Decisions made by the Corte d'appello can be further appealed to the Corte Suprema di Cassazione, or Supreme Court of Cassation. This court represents the highest level of appeal in the Italian legal system and its judgments are final.[34] Criminal mattersTribunaleTribunals possess general jurisdiction over felonies and misdemeanors punished by law with a criminal fine and/or an imprisonment term of less than 24 years. Corte d'AssiseThe Corte d'Assise (Court of Assizes) is the competent court to try felonies punished with at least 24 years of imprisonment term.[35] The maximum penalty allowed under Italian law is life in prison (ergastolo).[35] These courts are composed by two professional judges and eight lay judges, each of whom can cast a parity vote to find the defendant either guilty or innocent. Among crimes tried by a Corte d'assise, one finds acts of terrorism, slavery, murder, consensual homicide. Before the Constitutional Court's decision in Massimo Cappato v. The Italian People [2019] Constitutional Court 242/2019, that struck down the Italian legislation forbidding the recourse to euthanasia in any event, courts of assizes were competent to hear criminal cases involving forms of assisted suicide such as one person helping another to undergo euthanasia in a border country (e.g. Switzerland) where they could find medical assistance.[36] Corte d'assise d'appelloThe Corte d'assise d'appello (Court of Assize of Appeal) adjudicates appeals against rulings issued in the first instance by a Corte d'assise; its jurisdiction includes appeals against summary judgment delivered by judge of the preliminary hearing on crimes normally devolved to courts of assize.[37] The Court of Assize of Appeal composition reflect that in the first instance for courts of assize, namely, two professional judges and eight lay judges.[38] Tribunale di sorveglianzaThe Tribunale di sorveglianza (Probation Court) is specially mandated to address requests by convicts, held in an Italian prison, for serving sentence alternatively.[39] In this court, which acts as both a trial and appelate organ, two ordinary probation magistrates specially designated within the district of a Court of appeal and two experts nominated by the High Council of the Judiciary preside over cases. One Tribunale di sorveglianza sits per district of the Court of Appeal.[40] Rulings issued by a Tribunale di sorveglianza can only be appealed before the Corte Suprema di Cassazione.[41] Corte Suprema di Cassazione |