Judiciary of Italy
The judiciary of Italy is one of the three branches of the Italian Republic under the Constitution of 1948. Composed of a system of courts and public prosecutors' offices, the judiciary of Italy is tasked with the administration of justice. Both bench judges and public prosecutors, collectively called magistrates after the Roman tradition, hold office within this branch.
In turn, magistrates are gathered in a collective body known as 'magistracy'. Marked by an absence of internal hierarchy, the magistracy is also independent from any other branch of the state. In particular, the constitutional guarantee of independence protects career and honorary magistrates against the executive and legislative branches. In the Italian Republic, the government has no role in appointments or promotions, though the Minister of Justice oversees administrative resources and may request disciplinary proceedings. Career magistrates may serve until the mandatory retirement age of 70.
The Italian judiciary encompasses three independent judicial circuits. The ordinary judicial circuit handles civil and criminal matters. The specialised judicial circuit has exclusive jurisdiction over administrative, tax and audit matters. The military judicial circuit has jurisdiction over offences committed by service members in peacetime, though specific statutes provide broader attributions during wartime.
The Constitutional Court lies outside the judiciary of Italy, as an independent and separate constitutional institution tasked with reviewing the constitutionality of laws and settling conflicts among the branches of the state.
Law
The 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 Principles
The 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 whereby laws must be clear, publicised, and stable, facilitating compliance and enabling predictability in legal outcomes.Hierarchy of law
The 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, secondary legislation, and tertiary norms.The Constitutional Court has a monopoly over the constitutional review of legal sources, ensuring that in particular statutory laws and regulations comply with Italian constitutional law and certain rights and liberties such as those set forth in the European Convention on Human Rights.
Legal codification
The Civil Code and the Penal Code are central to statutory law in Italy. The Civil Code, significantly revised from its original 1865 enactment to the version introduced in 1942, addresses private law matters such as contracts, property, corporations and companies, labour, family relations, and inheritance. Originally, it incorporated influences from the German BGB and the Napoleonic civil code.The Penal Code's evolution is particularly noteworthy. The first comprehensive Italian Penal Code, known as the "Zanardelli Code" named after former ministry 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.
Constitutional principles
The foundational attributes and roles of the Italian Judiciary are delineated primarily by the Italian Constitution, supplemented by statutes of constitutional significance.File:Costituzione della Repubblica Italiana.jpg|thumb|One of three original copies of the Constitution of Italy, now in the custody of Historical Archives of the President of the Republic.
Independence
As stipulated in Article 104 of the Constitution of the Italian Republic, the judiciary operates as an autonomous branch of the State whose province is the interpretation and application of the law.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. This independence is further characterised by a non-hierarchical structure among magistrates, with distinctions made only based on the functions vested in them, as per Article 107 paragraph 3.
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.
Accountability
Article 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. This accountability extends to the State and public entities involved in the administration of justice.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. 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.
Recruitment
Access 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.Exceptionally, 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, 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. In order to sanction an Italian magistrate, the prosecuting body must ensure compliance with the due process of law clause.The High Council of the Judiciary, an institution of constitutional importance chaired by the President of the Italian Republic and effectively led by a vice-chair who is also a member of the Parliament plays a pivotal role in safeguarding the ordinary judiciary's independence. It oversees appointments, promotions, transfers, and disciplinary actions, as empowered by Article 105 of the Constitution.
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. 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.
Courts
The 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, 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, 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," 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.
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 is a body of constitutional significance. As per Article 103 of the Constitution, the Consiglio di Stato must remain neutral vis-à-vis the Italian public administration.