Judge - Court of Turin (Italy)
Secretary General - International Association of Judges
JUDICIAL INDEPENDENCE IN ITS VARIOUS ASPECTS:
INTERNATIONAL BASIC PRINCIPLES
AND THE ITALIAN EXPERIENCE
(Turin – 2013)
|
Summary: (I) THE
INDEPENDENCE OF THE JUDICIARY AS ONE OF THE PILLARS OF THE STATE GOVERNED BY
RULE OF LAW. THE BASIC PRINCIPLES IN THEIR INTERNATIONAL CONTEXT – 1. The Independence of the Judiciary: Basic Principles. – 2. The Independence of the Judiciary: its Various Forms. – 3. The Independence of the Public Prosecutor’s Department. –
4. The Internationalisation and Trans-Nationalisation of
the Principles Concerning the Independence of the Judiciary: Instruments. – 5. The Internationalisation and Trans-Nationalisation of the
Principles Concerning the Independence of the Judiciary: Principles and Rules
set forth by the Council of Europe. – 6.
Internationalisation and Trans-Nationalisation of Principles Governing the
Independence of the Judiciary: General Rules. – (II)
SELECTION, TRAINING AND CAREER OF JUDGES: INTERNATIONAL STANDARDS AND THE
ITALIAN EXPERIENCE – 7. The Selection of Judges in
Recommendation No. CM/Rec (2010) 12. – 8. Selection of
Judges in the Different European Legal Systems. – 9. The
Selection of Judges in the Italian Legal System. – 10.
International Standards on Judicial Training. – 11.
Right to Judicial Training and Judicial Training Structures. – 12. Initial Training for the Judiciary in Italy. – 13. On-the-Job Training for the Judiciary in Italy. – 14. The Career of Judges in Recommendation No. (2010) 12
and the Italian Experience. – 15. The Career of Judges
in the Different European Legal Systems. – (III) THE
STATUS OF JUDGES AND THE PROTECTION OF JUDICIAL INDEPENDENCE THROUGH A HIGH
COUNCIL FOR THE JUDICIARY: INTERNATIONAL STANDARDS AND THE ITALIAN EXPERIENCE
– 16. Irremovability of Judges in Recommendation No. R
(2010) 12 and in the Legal Systems of European Countries. – 17.
Protection of Judges Against all Undue Influence in Recommendation No. Rec.
(2010) 12. The Question of Judicial Immunity. – 18. The
High Council for the Judiciary: International Standards. – 19.
The High Council for the Judiciary: The Italian Experience (Members and
Electoral System). – 20. The High Council for the
Judiciary: The Italian Experience (Constitutional Position and Activities). –
(IV) JUDICIAL LIABILITIES: INTERNATIONAL STANDARDS
AND THE ITALIAN EXPERIENCE – 21. International Standards
on Judicial Liabilities. – 22. Breach of Discipline in
the Framework of Disciplinary Liability of Judges and Prosecutors in Italy. –
23. Disciplinary Sanctions for Judges and Prosecutors in
Italy. – 24. Disciplinary Proceedings for Judges and
Prosecutors in Italy. – 25. Civil Liability for Judges
and Prosecutors in Italy. – 26. Criminal Liability for
Judges and Prosecutors in Italy. – 27. Excerpts from the
Italian Constitution (Provisions Concerning the Judiciary). |
THE INDEPENDENCE OF THE
JUDICIARY AS ONE OF THE PILLARS
OF THE STATE GOVERNED BY RULE
OF LAW.
THE BASIC PRINCIPLES IN THEIR
INTERNATIONAL CONTEXT
1. The Independence of
the Judiciary: Basic Principles.
The independence of
the judiciary is certainly an essential principle which underpins what today is
termed the “state governed by rule of law” in accordance with the proposition
of the separation of powers, as defined by Montesquieu in the XVIII century. As
that great philosopher stated in his work “The Spirit of the Law” (Book XI,
§6), “There is no (…) freedom if the power to judge is not separate from the
legislative and executive powers.” “All would be lost,” he added, “if the same
man, or the same body of rulers, nobles, or people exercised all three powers:
that of making the laws, that of executing public resolutions and that of
judging the crimes and disputes of individuals.”[1]
The French
Declaration of the Rights of Man and of the Citizen of 26 August 1789 (Article
16) proclaimed that: “Any society in which there is no guarantee of rights or
clear separation of powers is without a constitution.”
It is for this
reason that independence is bestowed on judges purely for the protection of the
rights of individuals seeking justice[2]. It is not a judicial privilege. Dependence on
political power or hierarchical superiors means peace and the guarantee of a
quiet life for judges who adapt themselves to such a role: independence means
responsibility, the confrontation of differing points of view, the acceptance
of being the subject of public discussion, the challenge of being able to
convince not by force of the principle of authority but through rational
argument, together with firmness and professional skill.
On the other hand,
it is evident that independence requires a separate status for judges that sets
them clearly apart from public servants. That most distinguished Italian
exponent of comparative law, Gino Gorla, observed as much in the course of the
preliminary drafting of the Italian Constitution, which entered into force in
1948: “The judge cannot be placed on the same level as other public servants
(…). Judges should be regarded as being set apart from the ordinary run of
public servants because they are not, in reality, dependants of the state but
are themselves the state in one of its constitutional organs; they are the
living symbol, not of the “dependent” public servant, but of autonomy, of the
exercise of personal rights, and their very life should be autonomy in every
sense of the word.”[3]
The principle of
the separation of powers, to which judicial independence is closely linked, is
not accepted and understood in the same way in the various legal and court
systems that exist in Europe today. Nobody could seriously deny, for example,
that the judiciary in the United Kingdom enjoys a situation of total and
perfect independence; and yet it is the same system in which for many years the
person considered as being Head of the Judiciary, the Lord Chancellor, has been
for centuries exercising at the same time the functions of Minister of Justice,
Speaker of the House of Lords and the country’s leading judge.
While every legal
system recognises, at least in its legislation, the independence of the
judiciary in relation to the legislative and executive powers, in practice such
independence cannot yet be considered as having been attained satisfactorily
and lastingly in every part of our continent. The need to implement measures
for guaranteeing the independence of the judiciary raises a very complex range
of serious issues relating to widely varying aspects of the status of judges,
ranging from their appointment to training, assessment, career, transfer,
disciplinary measures, etc. It is therefore against this background that we
have to measure the efficiency and relevance of national and international
standards in the light of the attempts that have made (more or less openly here
and there in Europe) by other state authorities to restrict this fundamental
requirement of any society that regards itself as civilised.
2. The Independence of
the Judiciary: its Various Forms.
First of all it
should be observed that it is not merely the judiciary as a whole that has a
problem of autonomy and independence, but each individual judge. It is for this
reason that we may talk in terms either of the autonomy and independence of the
judiciary, or of the autonomy and independence of judges. Indeed, the systems
of the different countries should seek to guarantee not only the independence
of the judiciary in relation to other public authorities, but also the
independence of the judge in relation to other aspects of economic and social
life and even within the judiciary.
There is in fact more and more discussion of the “internal”
independence of the judiciary[4]. Clearly, the application to the judiciary of
the hierarchical rules that govern, for example, the organisation of the
executive, or certain branches of it (army, local government, police, etc.)
would compromise judicial impartiality. One possible solution to this problem
might be to transfer the powers that would normally be exercised by the chief
executive to another body, such as, for example, a High Council for the
Judiciary, which expedient would kill two birds with one stone: it would
safeguard the “external” independence of the judiciary (particularly in
relation to other public authorities) and it would protect the “internal”
independence of the judiciary (particularly in relation to their “superiors”).
The never-ending problem of the independence of the judiciary
in relation to the economic and financial authorities may also be mentioned
here. La Fontaine (in The animals sick
with the plague) lamented the fact that “You may be great Sir John or
simply wretched Jack, and accordingly the court will pronounce you white or
black.” Here it will suffice to observe that everywhere, or virtually
everywhere, in the world the rules governing the judiciary prohibit judges from
exercising activities such as that of entrepreneur, businessman, member of the
board of directors of a company, etc. But it is for precisely this reason that
judges should be guaranteed adequate remuneration as well as a personal,
special (I would go as far as to use the word privileged) status,
which would shield them from any outside influence.
Another form of judicial independence is independence in
relation to political parties. Europe finds itself divided on that question; on
the one hand, the countries of Central and Eastern Europe, reacting against a
tradition that obliged judges to be members of the party in power, totally
prohibit judges from belonging to any political party whatsoever; on the other
hand, the other systems, and particularly the Common Law and Northern European countries, by contrast prefer to
regard the judge as an ordinary citizen who as such should not be deprived of
the right to join a political organisation.
A “compromise” solution is being considered in other
countries. In Italy, for example, Article 98 of the Constitution (in force
since 1948) envisages the possibility for the ordinary law to set limits on
judges’ membership of political parties. Such a law has been passed only in
July 2005. On the other side, the “Judicial Code of Ethics” approved by the
National Association of Italian Judges in 1994 and reformed in 2010 requires
judges belonging to that association (more than 90% of Italian judges) to “avoid
any connection with the executive bodies of authorities, parties or companies
that might influence them in the exercise of (their) functions or affect
(their) image.” In any case, it is clear that merely limiting membership of
political parties, or even imposing a total prohibition, is not enough. The
thing to avoid–and here there seems to be a general consensus in Europe–is for
the judge to be closely and actively involved in political activity.
In conclusion to this first introductory overview, I should like
to mention two completely new forms of independence.
First, the independence of judges in relation to the media.
The tendency for the judge’s activities, particularly in criminal matters, to
be given media coverage, has recently assumed worrying proportions more or less
throughout the world, but particularly in Western countries: examples are to be
seen in a number of prosecutions brought against major political figures in
Italy and also France and Spain, or the enormous uproar caused by the publicity
given to certain issues (for example those surrounding the cases of the actor
O.J. Simpson or the boxer M. Tyson in the United States). The risk remains
that the judge may be influenced in his functions by the press, particularly in
the case of judges aspiring to a career in politics or even election to the
High Council for the Judiciary.
The last form of independence that I would like to mention
here is freedom from ignorance. “If the judge is ignorant,” said La Fontaine (The donkey carrying relics), “it’s the
robes that carry respect.” If we want those robes to be worn by a judge who is
respected by the people in court, and entirely free in reaching his decision,
the judge must have a thorough knowledge of the subject matter with which he is
dealing. A well trained judge is a more independent judge.
On the other hand, we must not forget that training now
constitutes a veritable right for a European judge, according to Recommendation
No. R (94) 12 of the Committee of Ministers of the Council of Europe on the
independence, efficiency and role of judges. Principle III-1.a of that recommendation calls for the
“recruiting (of) a sufficient number of judges and providing for appropriate
training such as practical training in the courts and, where possible, with
other authorities and bodies, before appointment and during their career. Such
training should be free of charge to the judge and should in particular concern
recent legislation and case-law. Where appropriate, the training should include
study visits to European and foreign authorities as well as courts.” Such rule
was reinstated in the new version of that document: actually, Recommendation CM/Rec(2010)12 of the
Committee of Ministers to member states on judges: independence, efficiency and
responsibilities provides for (see Principle 56) that “Judges should
be provided with theoretical and practical initial and in-service training,
entirely funded by the state. This should include economic, social and cultural
issues related to the exercise of judicial functions. The intensity and duration
of such training should be determined in the light of previous professional
experience.”
3. The Independence of
the Public Prosecutor’s Department.
An independent
judge will not suffice to achieve judicial independence if the public
prosecutor’s department, which is the authority empowered to turn the wheels of
justice, at least in criminal matters, lacks independence.
It is precisely because public prosecutors safeguard the
equality of citizens before the law that they must be able to exercise their functions
independently of political power. Accordingly, the principle that judges are
subject only to the law must equally apply to public prosecutors.
Experience in a
number of countries has shown that inquiries into corruption often involve
investigation of offences committed by centres of economic, financial and
political power. It is imperative, therefore, that the court should be able to
carry out its inquiries (and direct the judicial police) in a way that is
completely independent of the government. It is of little use guaranteeing the
independence of the judiciary if the possibility remains that the executive
power can exercise control over prosecutors so as to prevent them from carrying
out their inquiries.
The principles of
democracy and the equality of citizens before the law require that any abuse of
political power be exposed and punished. It is for this reason that even in
countries where there is still a connection between the executive authority and
the courts, increasing efforts are being made to cut the umbilical cord. It is
interesting in this connection to point out that Article 18.2 of the Corpus Juris imposing penal provisions
for the protection of the financial interests of the European Union provides
that the Public European Ministry “is independent both from the national
authorities and the community organs.”[5] Strong stands for the independence of the
public prosecutor can be found as well in the documents issued by the Consultative
Council of European Prosecutors of the Council of Europe. According to
Principle 3. of the “Bordeaux
Declaration” “Judges and public prosecutors must both enjoy independence in
respect of their functions and also be and appear independent from each other.”
4. The
Internationalisation and Trans-Nationalisation of the Principles Concerning the
Independence of the Judiciary: Instruments.
The second half of
the century that has just ended saw an international awakening to the
importance of the independence of the judiciary. This movement began with the Universal Declaration of Human
Rights, adopted by the Assembly of the United Nations in 1948, which
provides in Article 10 that “in the determination of his civil rights and
obligations or of any criminal charge against him” everyone has the right to be
judged by “an independent and impartial tribunal”. This same principle was
included in the European Convention
on Human Rights and Fundamental Freedoms signed in Rome in 1950 (Article
6).
Numerous
conferences and congresses organised by international associations and bodies
(including, in particular, the International
Association of Judges) have devoted efforts to studying the systems
guaranteeing the independence of the judiciary. Several binding declarations on
this topic are to be found in the documents of international congresses,
conferences and seminaries. The models and the law-making principles have begun
to circulate throughout Europe and the entire world, with the result that today
one can speak of not only international law for the protection of the
independence of the judiciary, but also trans-national law on the subject. I
would go as far as to say that it is not important that all the relevant
instruments do not have binding force (or binding to the same degree): the
practical experience of international associations shows, for example, that
“private” documents, such as the Universal
Charter of the Judges drawn up by the International Association of Judges,
have served to persuade the political authorities of certain countries not to implement
measures that might have limited the independence of the judiciary.
The most
interesting results of this process of internationalisation and
trans-nationalisation based on the principles of human rights protection are to
be found in the following instruments:
·
The European
Convention on Human Rights, 1950, already mentioned;
·
The
International Convention on Civil and Political Rights, 1966;
·
The
Basic Principles on the independence of the Judiciary drawn up in 1985 by
the UNO and the Procedures for their effective implementation (1989);
·
The Statute of the Judge in Europe, drawn up and
approved in 1993 by the European Association of Judges - Regional Group of the
International Association of Judges;
·
Recommendation
No. R (94) 12 of the Committee of Ministers of the Council of Europe to
Member States on the independence, efficiency and role of judges;
·
The
European Charter on the status of judges, approved by the Council of Europe
in Strasbourg, 8-10 July 1998;
·
Universal
Charter of the Judges, unanimously approved by the Central Committee of the
International Association of Judges at
its meeting in Taipei (Taiwan) on 17 November 1999;
·
The European Parliament resolution on the annual
report on respect for human rights in the European Union (1998 and 1999)
(11350/1999 - C5-0265/1999 - 1999/2001(INI), adopted on 16 March 2000 (which
“recommends that Member States guarantee the independence of judges and courts
from the executive and ensure that appointments to the judiciary are not made
on political grounds”);
·
The “Charter of Fundamental
Rights of the European Union” adopted in Nice on 7 December 2000
(which in article 47 - Right to an effective remedy and to a fair trial”,
subparagraph 2, stipulates, in accordance with Article 6 of the European
Convention for the Protection of Human Rights and Fundamental Freedoms, that
“Everyone is entitled to a fair and public hearing within a reasonable time by
an independent and impartial tribunal previously established by law.”).
·
Opinion
No 1 (2001) of the Consultative Council of European Judges (CCJE) for the
attention of the Committee of Ministers of the Council of Europe on Standards
Concerning the Independence of the Judiciary and the Irremovability of Judges.
·
Magna
Charta of Judges, approved by the Consultative
Council of European Judges (CCJE) in 2010.
Among the Basic
Principles on the Independence of the Judiciary drawn up by the UNO in 1985,
the following are of particular interest:
“1. The
independence of the judiciary shall be guaranteed by the State and enshrined in
the Constitution or the law of the country. It is the duty of all governmental
and other institutions to respect and observe the independence of the
judiciary.
2. The judiciary
shall decide matters before them impartially, on the basis of facts and in
accordance with the law, without any restrictions, improper influences,
inducements, pressures, threats or interferences, direct or indirect, from any
quarter or for any reason.
3. The judiciary
shall have jurisdiction over all issues of a judicial nature and shall have
exclusive authority to decide whether an issue submitted for its decision is
within its competence as defined by law.
4. There shall not
be any inappropriate or unwarranted interference with the judicial process (…).
5. (…)
6. The principle of
the independence of the judiciary entitles and requires the judiciary to ensure
that judicial proceedings are conducted fairly and that the rights of the
parties are respected.
7. It is the duty
of each Member State to provide adequate resources to enable the judiciary to
properly perform its functions.”
5. The
Internationalisation and Trans-Nationalisation of the Principles Concerning the
Independence of the Judiciary: Principles and Rules set forth by the Council of
Europe.
The documents drafted by the Council of Europe in the field of Judicial
Independence contain general principles, on one side, but dwell as well, on the
other side, on some specific measures aiming at safeguarding in practice
compliance with those rules. As far as general principles are concerned let me
quote the following rules (see Principles 3-7, Recommendation
No. R (2010) 12):
“3. The purpose of
independence, as laid down in Article 6 of the Convention, is to guarantee
every person the fundamental right to have their case decided in a fair trial,
on legal grounds only and without any improper influence.
4. The independence of individual judges is
safeguarded by the independence of the judiciary as a whole. As such, it is a
fundamental aspect of the rule of law.
5. Judges should have unfettered freedom to
decide cases impartially, in accordance with the law and their interpretation
of the facts.
6. Judges should have sufficient powers and
be able to exercise them in order to carry out their duties and maintain their
authority and the dignity of the court. All persons connected with a case,
including public bodies or their representatives, should be subject to the
authority of the judge.
7. The independence of the judge and of the
judiciary should be enshrined in the constitution or at the highest possible
legal level in member states, with more specific rules provided at the legislative
level.”
As far as proper working conditions are concerned, the above-mentioned
Recommendation provides for as follows (see Principles 32-38 of the Recommendation
No. R (2010) 12):
“32. The authorities responsible for the organisation and functioning of
the judicial system are obliged to provide judges with conditions enabling them
to fulfil their mission and should achieve efficiency while protecting and
respecting judges’ independence and impartiality.
33. Each state should allocate adequate resources, facilities and
equipment to the courts to enable them to function in accordance with the
standards laid down in Article 6 of the Convention and to enable judges to work
efficiently.
34. Judges should be provided with the information they require to
enable them to take pertinent procedural decisions where such decisions have
financial implications. The power of a judge to make a decision in a particular
case should not be solely limited by a requirement to make the most efficient
use of resources.
35. A sufficient number of judges and appropriately qualified support
staff should be allocated to the courts.
36. To prevent and reduce excessive workload in the courts, measures
consistent with judicial independence should be taken to assign non-judicial
tasks to other suitably qualified persons.
37. The use of electronic case management systems and information
communication technologies should be promoted by both authorities and judges,
and their generalised use in courts should be similarly encouraged.
38. All necessary measures should be taken to ensure the safety of
judges. These measures may involve protection of the courts and of judges who
may become, or are victims of, threats or acts of violence.”
It is sure that, as far as judicial
status is concerned, the best protection for judicial independence, both
“internal” and “external”, can only be assured by a High Council for the
Judiciary.
According to western European standards,
a High Council for the Judiciary should be the autonomous self-administration
body in charge of safeguarding the independence of the judiciary. It should be
composed exclusively of a majority representation of judges and public
prosecutors. The High Council for the Judiciary should be entrusted with the
appointment, assignment, transfer, promotion, and disciplinary measures
concerning judges and public prosecutors. It should have the power to take
decisions in all these matters and not to merely submit proposals to the
administrative or legislative powers of the State.
A
reference to this body is to be found already in the Recommendation
No. R (2010) 12 of the Council of Europe, whose Principles 26-29 provide for as
follows:
“26. Councils for the judiciary are
independent bodies, established by law or under the constitution, that seek to
safeguard the independence of the judiciary and of individual judges and thereby
to promote the efficient functioning of the judicial system.
27. Not less than half the members
of such councils should be judges chosen by their peers from all levels of the
judiciary and with respect for pluralism inside the judiciary.
28. Councils for the judiciary
should demonstrate the highest degree of transparency towards judges and
society by developing pre-established procedures and reasoned decisions.
29. In exercising their functions,
councils for the judiciary should not interfere with the independence of
individual judges.”
More references to the
self-governing body of the judiciary can be found in the European Charter on
the status of judges, approved by the Council of Europe in 1998. A first direct
reference to it is contained in Articles 1.3 and 1.4, respectively stating that
“In respect of every decision affecting the selection, recruitment,
appointment, career progress or termination of office of a judge, the statute
envisages the intervention of an authority independent of the executive and
legislative powers within which at least one half of those who sit are judges
elected by their peers following methods guaranteeing the widest representation
of the judiciary” and that “The statute gives to every judge who considers that
his or her rights under the statute, or more generally his or her independence,
or that of the legal process, are threatened or ignored in any way whatsoever,
the possibility of making a reference to such an independent authority, with
effective means available to it of remedying or proposing a remedy.”
In the field of judicial selection, recruitment and initial
training the Charter says that (paragraph 2.1) “The rules of the statute
relating to the selection and recruitment of judges by an independent body or
panel, base the choice of candidates on their ability to assess freely and
impartially the legal matters which will be referred to them, and to apply the
law to them with respect for individual dignity” and that (paragraph 2.3) “The
authority referred to at paragraph 1.3 hereof, ensures the appropriateness of
training programmes and of the organization which implements them, in the light
of the requirements of open‑mindedness, competence and impartiality which
are bound up with the exercise of judicial duties.”
As far as appointment and irremovability
are concerned the same document provides for that (paragraph 3.1) “The decision
to appoint a selected candidate as a judge, and to assign him or her to a
tribunal, are taken by the independent authority referred to at paragraph 1.3
hereof or on its proposal, or its recommendation or with its agreement or
following its opinion” and that (paragraph 3.3) “Where the recruitment
procedure provides for a trial period, necessarily short, after nomination to
the position of judge but before confirmation on a permanent basis, or where
recruitment is made for a limited period capable of renewal, the decision not
to make a permanent appointment or not to renew, may only be taken by the
independent authority referred to at paragraph 1.3 hereof, or on its proposal,
or its recommendation or with its agreement or following its opinion.”
As well in the field of career development the Charter states
that “Decisions as to promotion are then pronounced by the authority referred to
at paragraph 1.3 hereof or on its proposal, or with its agreement,” whereas, in
the field of judicial liability, paragraphs 5.1, 5.2 and 5.3 provide for as
follows: “The dereliction by a judge of one of the duties expressly defined by
the statute, may only give rise to a sanction upon the decision, following the
proposal, the recommendation, or with the agreement of a tribunal or authority
composed at least as to one half of elected judges, within the framework of
proceedings of a character involving the full hearing of the parties, in which
the judge proceeded against must be entitled to representation. The scale of
sanctions which may be imposed is set out in the statute, and their imposition
is subject to the principle of proportionality. The decision of an executive
authority, of a tribunal, or of an authority pronouncing a sanction, as
envisaged herein, is open to an appeal to a higher judicial authority.”
(paragraph 5.1).
“Compensation for harm wrongfully
suffered as a result of the decision or the behaviour of a judge in the
exercise of his or her duties is guaranteed by the State. The statute may
provide that the State has the possibility of applying, within a fixed limit,
for reimbursement from the judge by way of legal proceedings in the case of a
gross and inexcusable breach of the rules governing the performance of judicial
duties. The submission of the claim to the competent court must form the
subject of prior agreement with the authority referred to at paragraph 1.3
hereof.” (paragraph 5.2).
“Each individual must have the possibility of
submitting without specific formality a complaint relating to the miscarriage
of justice in a given case to an independent body. This body has the power, if
a careful and close examination makes a dereliction on the part of a judge
indisputably appear, such as envisaged at paragraph 5.1 hereof, to refer the
matter to the disciplinary authority, or at the very least to recommend such
referral to an authority normally competent in accordance with the statute, to make
such a reference.” (paragraph 5.3).
Finally, paragraph
7, dealing with the issue of termination of office, provides for that “A judge
permanently ceases to exercise office through resignation, medical certification
of physical unfitness, reaching the age limit, the expiry of a fixed legal
term, or dismissal pronounced within the framework of a procedure such as
envisaged at paragraph 5.1 hereof,” (paragraph 7.1) and that “The occurrence of
one of the causes envisaged at paragraph 7.1 hereof, other than reaching the
age limit or the expiry of a fixed term of office, must be verified by the
authority referred to at paragraph 1.3 hereof” (paragraph 7.2).
Taking now in
account Opinion No 1 (2001) of the Consultative Council of European Judges (CCJE)
we can remark that this body has taken a firm stand on many of the topics dealt
with by Recommendation No. (94) 12 and subsequently dealt with by Recommendation
No. R (2010) 12. Among others we
can mention the following ones.
Point 25: “The CCJE recommended that the authorities
responsible in member States for making and advising on appointments and
promotions should now introduce, publish and give effect to objective criteria,
with the aim of ensuring that the selection and career of judges are “based on
merit, having regard to qualifications, integrity, ability and efficiency.”
Point 37: “the CCJE considered that every decision relating to a judge’s
appointment or career should be based on objective criteria and be either taken
by an independent authority or subject to guarantees to ensure that it is not
taken other than on the basis of such criteria.”
Point 45: “Even in legal systems where good standards have
been observed by force of tradition and informal self-discipline, customarily
under the scrutiny of a free media, there has been increasing recognition in
recent years of a need for mo re objective and formal safeguards. In other
states, particularly those of former communist countries, the need is pressing.
The CCJE considered that the European Charter - in so far as it advocated the
intervention (in a sense wide enough to include an opinion, recommendation or
proposal as well as an actual decision) of an independent authority with
substantial judicial representation chosen democratically by other judges -
pointed in a general direction which the CCJE wished to commend. This is particularly
important for countries which do not have other long entrenched and
democratically proved systems.”
Point 53: “The CCJE considered that when tenure is provisional
or limited, the body responsible for the objectivity and the transparency of
the method of appointment or re-appointment as a full-time judge are of
especial importance (see also paragraph 3.3 of the European Charter).”
Point 56: “The CCJE
agreed that the importance for national legal systems and judges of the
obligations resulting from international treaties such as the European
Convention and also the European Union treaties makes it vital that the
appointment and re-appointment of judges to the courts interpreting such
treaties should command the same confidence and respect the same principles as
national legal systems. The CCJE further considered that involvement by the
independent authority referred in the paragraphs 37 and 45 should be encouraged
in relation to appointment and re-appointment to international courts.”
Point 60: “The CCJE
considered (a) that the irremovability of judges should be an express element
of the independence enshrined at the highest internal level (see Paragraph 16 above); (b) that the intervention of an
independent authority13, with procedures guaranteeing full rights of defence,
is of particular importance in matters of discipline; and (c) that it would be
useful to prepare standards defining not just the conduct which may lead to
removal from office, but also all conduct which may lead to any disciplinary
steps or change of status, including for example a move to a different court or
area.”
6.
Internationalisation and Trans-Nationalisation of Principles Governing the
Independence of the Judiciary: General Rules.
I shall now try to
summarise the basic principles and the crucial requirements for the exercise of
a truly independent justice system:
1.
The judiciary is an autonomous body. It is not subject
to either of the other state authorities. Public prosecutors should enjoy the
same statutory guarantees as judges.
2.
Judges and public prosecutors are subject only to the
law.
3.
Judges and public prosecutors should be appointed for
life or for such period as is consistent with guaranteeing their independence.
No change introduced in regard to the compulsory retirement age should have a
retroactive effect.
4.
Judges and public prosecutors should be selected by
public competition. The selection and appointment of judges and public prosecutors
should be carried out according to objective and transparent criteria and on
the basis of the professional qualifications of the persons concerned.
5.
There should be no interference by the legislative or
executive authorities in the selection of judges and public prosecutors.
6.
A High Council for the Judiciary should be established
with responsibility for appointments, assignments, transfers, promotions and
disciplinary procedures in relation to judges and public prosecutors. This body
should be composed of judges and public prosecutors, or at the very least
should include a majority of judges and public prosecutors.
7.
Judges and public prosecutors should only be
transferred, suspended or removed from office in circumstances prescribed by
law and then only as the result of a disciplinary finding reached by the
competent body through the appropriate procedure.
8.
Disciplinary proceedings should be brought before an
independent council which includes a substantial representation of judges.
Disciplinary proceedings against judges should only be brought under the
provisions of a pre-existing law and in accordance with pre-established rules
of procedure.
9.
Judges and public prosecutors are entitled to an
effective system of initial and in-service training. The training of judges
should be carried out by an independent establishment (such as a school
established specifically for the initial and/or in-service training of judges),
or by an independent body (such as the High Council for the Judiciary), which
would include a substantial representation of judges.
10.
Judges should have appropriate working conditions.
11.
The salaries of judges and of public prosecutors
should be established by law (and not by administrative decision) and be linked
to the salaries of members of parliament or ministers. They should on no
account be reduced.
12.
Judges and public prosecutors should have full freedom
of association. Service within such an association should be officially
recognised as having the same status as the ordinary work of judges.
I must admit that
none of the instruments or declarations cited above includes all of the rules
that I have just proposed, but it is nevertheless clear that those
international documents must be read and interpreted today as forming part of a
patchwork structure, constituting a veritable “international and trans-national
corpus juris on the status of judges.” This system has already been
applied to some extent at national level in Europe. One example I might quote
is that of the Italian constitution: this text–although it was drawn up over
half a century ago, at the end of a period of dictatorship, conflict and civil
war–has nevertheless managed to protect the independence of the judiciary over
the past 60 years.
SELECTION, TRAINING AND CAREER OF JUDGES:
INTERNATIONAL STANDARDS AND THE ITALIAN EXPERIENCE
7.
The Selection of Judges in Recommendation No. CM/Rec (2010) 12.
From a general point of view it should be
observed that the recruitment of judges is carried out in many different ways
in the various systems throughout the world[6].This variety is also present in Europe, where every imaginable system
for the selection of candidates for the judiciary is to be found, including
election by popular ballot, as in certain Swiss cantons (on practice within
Europe, see Paragraph 8 below).
Of course, each method has its advantages
and its drawbacks.
a) The
first method consists in conferring the choice of judges on the executive or
legislative authorities: while, on the one hand, this serves to reinforce the
legitimacy of the judicial appointment, the heavy dependence of the judiciary
on the other powers, together with the political implications, carries obvious
risks.
b)
Election by the electorate
is the method that confers on judges the highest level of legitimacy, as it comes
straight from the people. However, this system obliges the judge to conduct a
humiliating, and sometimes demagogic, electoral campaign, inevitably with the
financial backing of a political party, which sooner or later might ask for a
favour in return. Furthermore, the judge might be tempted to tailor his
judgments to his electorate.
c)
Co-option by the judiciary
itself offers the advantage of being able to choose the judges who are best
prepared technically, but there is a strong risk of conservatism and cronyism.
d)
Nomination by a committee of
judges and legal academics (preferably appointed by an independent body
representing the judiciary) following a public competition, constitutes the
final system, as currently applied in a number of countries.
Faced with these alternatives, articles 44-48 of the 2010 recommendation
show a marked preference for the elimination of all executive influence from
the appointment of judges. The general rule in this regard is in fact
explicitly stated in article 46: “The authority taking decisions on the
selection and career of judges should be independent of the executive and
legislative powers. With a view to guaranteeing its independence, at least half
of the members of the authority should be judges chosen by their peers.”
The following article 47 is, by contrast, clearly conceived as an
exception to the rule of article 46. That is to say, the recommendation appears
to view as exceptional a country where “the constitutional or other legal
provisions prescribe that the head of state, the government or the legislative
power take decisions concerning the selection and career of judges”. Here a
very serious problem faces the countries of Central and Eastern Europe, where
historical “tradition” has not always been democratically based, and
constitutions and laws instituted after the fall of the Berlin Wall–often under
the influence of the Common Law systems–have led to systems of appointment and
control over judges’ careers that afford them no protection from attempts at
undue influence on the part of the political authorities.
It is true that article 47 tries to suggest, in its second part, some
expedients aimed at limiting the discretionary power of the executive (or
legislative) authorities. This is particularly the case, for example, with the
creation of “an independent and competent authority drawn in substantial part
from the judiciary (without prejudice to the rules applicable to councils for
the judiciary contained in Chapter IV).” Unfortunately, it is the very lack of
almost any detailed and reliable information on the practice actually followed
that gives rise to concern. The author of this essay is well aware–having
visited nearly all the countries concerned–that between the letter of the law
and the daily reality of the judge’s duties, between official speeches and
private conversation, there often lurks an abyss.
8.
Selection of Judges in the Different European Legal Systems.
It
would be impossible to summarise here the diversity of methods adopted
throughout Europe for the recruitment of judges. In an attempt to cover this
topic in the best possible way, I propose to identify (while bearing in mind
the principle of independence) the categories into which the various systems
fall.
The
first thing to note is that a university qualification in legal studies is
required nearly everywhere. A minimum age together with “good character” is
also a requirement laid down by law nearly everywhere. Having said this, the
system of competition is certainly preponderant in Western and Southern
Continental Europe (with some notable exceptions such as, for example, the
Swiss cantons, where judges are elected by the people or by parliament). Such a
competition may be open, in some cases, to any person with a law degree
(subject to the conditions established by the various laws), or else to persons
whom one could term “specialists”, in that they not only have a legal
qualification, but also some form of specialisation or practical experience.
Moreover,
depending on the country concerned, the competition can give either direct
access to the judiciary, subject to the completion of a period of initial
training under the supervision of the High Council for the Judiciary (such was for a very long time the case, for example, in Italy, where
now a School for the Judiciary exists), or access to a training institution
(such is the case, for example, in France, the Netherlands and Portugal; the
result is practically the same in Germany, although there the training precedes
the choice of career and is common to judges, barristers and solicitors; the
system of competition is also to be found in the Baltic states and in Turkey).
By
way of contrast, the Common Law systems and those of the Nordic states are
characterised either by the complete absence of any competition for access to
the judiciary, or by the absence of a competition in the strict sense: here,
appointment to the judiciary is primarily the culmination of a training
process, a cursus honorum, which candidates complete in the field (even
if the Commission for Judicial Appointments–which provides, in the U.K., an
independent mechanism for applicants for judicial office who feel that their
candidacy has not been considered fairly–and the setting up of a Judicial Study
Board, opened new perspectives in this field[7]).
Obviously,
under the first type of system it is the boards appointed to carry out the task
of selecting candidates and the initial training institutions which play the
determining role in selecting new judges, even if the formal instrument of
nomination carries the signature of the Minister of Justice or the President of
the Republic. In the other systems, however, the influence of the executive is
(or can be) very considerable. However, in the Anglo-Saxon countries and the
Scandinavian countries, other factors (such as the legal tradition, the
widespread respect for the judiciary, the social and economical position of
judges, the existence of the “contempt of court”) guarantee, on the one hand,
the quality of the selection and, on the other hand, the maintaining of a
situation of separation between the authorities and an independent judiciary.
In
the countries of the former communist bloc the situation seems somewhat complex
and difficult to grasp.
As I
have already observed (see above, Paragraph 7), the overall
conclusion from this is that the situation is still weighted too heavily in
favour of the political authorities lato
sensu (the executive, but also, in several cases, the legislature). While
it is true that very often “qualifications boards” are involved (as for example
in the Russian Federation), it is by no means clear how such bodies are
composed, or, in particular, what criteria are followed, or what effective
powers such boards have to determine in practice, in relation to the executive,
the actual choice of candidates when their number exceeds the number of posts
available.
The
same is true of systems where Judicial Councils only have a consultative
function in this regard (in, for example, the former Yugoslav Republic of
Macedonia, the Czech Republic or Slovakia), even if the perverse effects of a
system that accords considerable power to the executive authorities (or to the
legislature in systems where judges are elected) may be alleviated by the intervention
of the association of judges (as for example in the Czech Republic).
Conversely, the intervention in such a process of a High Council for the Judiciary with decision-making powers in this regard (as opposed to a merely
advisory function) certainly provides a very reassuring guarantee (such is the
case, for example, in Croatia, Poland, Romania and Slovenia)[8].
9. The Selection of Judges in the Italian Legal System.
Access to the profession of judge and public prosecutor in Italy takes
place through a public competitive examination pursuant to article 106,
paragraph 1, of the Constitution. Rules on the entry to the profession of judge
and prosecutor have been changed over the last years, on the one hand to
simplify and expedite the examination procedure and, on the other, to promote
the development of a cultural basis common to
all the members of the legal world connected to the activities linked to the
exercise of the judicial function: judges and prosecutors, notaries and
lawyers. The legislator has thus constituted Schools of Specialisation for the
Legal Professions, which are post‑graduate schools set up within the
Universities for law‑graduate students that want to enter the legal
professions (Legislative Decree No. 398/97).
With a view to rationalising and speeding up the relevant procedure, and
with a view to implementing the assessment of the candidates in a reasonable
time and with the required accuracy, the public examination for entry to the
Judiciary has been completely amended by the aforesaid Legislative Decree No.
398/97 and the amendment of Article 123 of the judicial system. The–already
existing–written and oral exams were temporarily sided by a computerised
preliminary test on the subject matters dealt with in the written exam.
The computerised preliminary test was then subsequently set aside within
the new framework of the public examination developed by Act no. 48/2001. The
whole matter was then reformed by the Legislative Decree No. 160 of 2006,
subsequently amended by the law No. 111 of 2007.
The competitive public examination for judges and prosecutors consists
of three written exams (on: civil, criminal and administrative law) and an oral
exam on the main legal subjects (see article 1 of the above mentioned
Legislative Decree No. 160 of 2006).
The competitive examination for judges/prosecutors is published by the
Minister of Justice, pursuant to a decision of the High Council for the Judiciary, which sets the number of positions. The examining committee, appointed
by the High Council, is chaired by a judge/prosecutor with at least twenty-four
years of seniority. It consists further of twenty judges/prosecutors with at
least twelve years of seniority, five university law professors and three
lawyers (see article 1 of the above mentioned Law No. 111 of 2007). The
classification drawn up by the commission, which is based on the total sum of
the votes given to each candidate in each individual test, is then approved by
the High Council[9].
10. International Standards
on Judicial Training.
The subject of judicial training[10] figures more and more prominently in international documents concerning
the status and independence of judges.
For example, Article 10 of the Basic Principles
on the Independence of the Judiciary drawn up by the UN in 1985, stipulates
that: “Persons selected for judicial offices shall be individuals of integrity
and ability with appropriate training or qualifications in law.” The European
Charter on the Statute for Judges approved by the Council of Europe in 1998
stipulates, inter alia, that “The
statute ensures by means of appropriate training at the expense of the sate,
the preparation of the chosen candidates for the effective exercise of judicial
duties” and that “an authority independent
of the executive and legislative powers within which at least one half of those
who sit are judges elected by their peers following methods guaranteeing the
widest representation of the judiciary ensure the appropriateness of training
programmes and of the organisation which implements them, in the light of the
requirements of open-mindedness, competence and impartiality which are bound up
with the exercise of judicial duties” (Art 2.3 and 1.3).
Before the adoption of
this document, the Council of Europe had organised a multilateral meeting of
training bodies in the different member countries, together with those of the
countries of Central and Western Europe; that conference was held in Lisbon
27-28 April 1995 and the delegates affirmed “the need to give special priority
to the training of judges and public prosecutors and expressed the need to
extend and improve training methods taking into account the different legal
systems’ traditions and to respect and encourage the intellectual independence
of judges.” The delegates participating in that discussion forum had also
stressed that “the necessity for judges and public prosecutors to ensure that
the efficiency of justice should not be prejudiced by the requirement of
developing the qualifications and the professional conscience of members of the
judiciary.”
The wishes of the Council of
Europe have already become reality in France, at least in relation to the
existence of a genuine right to judicial training, which was created by law No.
92-189 of 25 February 1992. This text, amending Act No. 58-1270 of 22 December
1958 (constitutional law on the statute of the judiciary), expressly confers on
judges “the right to further training.” In Italy, on the other hand, the
“Judicial Code of Ethics” approved on 7 May 1994 by the National
Association of Judges and revised in 2010, stipulates in Article 3 that “the
judge shall carry out his duties diligently and thoroughly. He/she shall
maintain and add to his professional experience by undertaking to use and
extend his knowledge in the areas in which he exercises his activities.” This
provision is part of a body of rules that has no binding force; however, it calls
upon each judge from the point of view of professional ethics constantly to
monitor his own professionalism standards[11].
Recommendation
No. R (2010) 12 devotes two articles to the subject of judicial training.
According to article 56, “Judges should be provided with theoretical and practical
initial and in-service training, entirely funded by the state. This should
include economic, social and cultural issues related to the exercise of
judicial functions. The intensity and duration of such training should be
determined in the light of previous professional experience.”
The following article 57 provides for that “An
independent authority should ensure, in full compliance with educational
autonomy, that initial and in-service training programmes meet the requirements
of openness, competence and impartiality inherent in judicial office.” The
reference to an “independent authority” clearly leaves the field open both to
Judicial Training Centres and Schools, as well as to bodies such as the High
Council for the Judiciary. Of course Judicial Training Centres have to be
endowed with the necessary degree of independence, vis-à-vis the other powers
of the State, but also in their relations to the High Council, where it exists.
11. Right to Judicial Training and Judicial Training Structures.
The discussion that is taking place internationally concerning texts on
the subject of training leads us to the following conclusions:
a)
training is increasingly
perceived today as the something which a judge is entitled to receive from the
state;
b)
however, it is also a
responsibility on the part of each judge;
c)
it is closely bound up with
the independence of the judiciary.
Those three principles enable us to reply to the question: who should be
responsible for training? But in dealing with this subject, another point has
to be considered:
What is training and, in particular, what is involved in the training of
judges? In its report to the Italian Parliament on the state of the justice
system for the year 1994, the Italian High Council for the Judiciary defined training as “organised communication of technical, practical
and ethical skills to supplement knowledge gained from the exercise of one’s
own profession; such imparting of knowledge is carried out in an organised and
systematic way using a programme in which the operator is pro-active.” That
means that training is, above all else, teaching. But it is also a great deal
more than that, as training is not limited to communication of theoretical knowledge, but also includes sharing a
corpus of operational knowledge (know-how)
and presenting models of behaviour (life
skills).
If all this is true, then it is hard to see why the training of judges
should be exempt from respect for freedom of education, a principle that is in
fact fully recognised by the Constitutions of a number of European countries;
see for example Article 33 of the Italian Constitution: “Art and science,
together with their teaching, are free. (…) Institutions of higher learning,
universities and academies are free to adopt autonomous forms of organisation,
within the limits established by State law”; see too Article 5 of the German Grundgesetz, which in its third
subparagraph stipulates that “Art and sciences, research and teaching are free.
(...)”.
Independence of the judiciary and freedom of education: those are the
two pillars of the training of judges. If one accepts these two propositions,
the reply to the question as to responsibility for training can only be as
follows: the body whose task it is to train judges should not only be
independent of other state authorities, but also have a remarkable degree of
autonomy in relation to the institution responsible for administering the
judiciary.
With these remarks in mind, it would be desirable to
affirm the principle that the training of judges should be carried out by an
institution which truly represents the judiciary and which is effectively
independent of any other authority (in particular the Ministry of Justice).
This structure should be drawn up by the law, which should specify how its
managing committee should be composed. Members of this panel should be mainly
judges appointed by the High Council, even though some representatives of other
legal professions should be included (university professors at law schools,
attorneys, notaries). The managing committee should be responsible for the
setting up of yearly training programmes, as well as for the detailed programme
of each training course for judges. They should appoint experts to teach as
well as to lead practical workshops and discussions inside each training
course. The panel should be accountable to the High Council for the Judiciary
and should draw up an yearly detailed report on the training activity for
judges.
Training activity should be open to all kind of judges
(and of public prosecutors) who desire to improve their professional skills.
Attendance of training activities should be made compulsory for young judges as
well as for judges who change their functions after a certain period of time
(e.g. for a judge who has been dealing for years only with civil law and who
wants to be transferred to a post in penal law division of a court). A special
statute should allocate resources for this institute, providing for that inside
the annual state budget a certain amount of money be exclusively dedicate to
the financing of this structure and to the training activities for judges.
The participation in training initiatives should be
considered as an activity regarded as being on a par with judicial activities
in the ordinary sense; furthermore, this participation should be taken into
account each time a judge applies for transfer or promotion. Finally, the
process of self-tuition should also be regarded as one of the pillars of the
training of the modern judge. Incentives should therefore be provided (for
example, tax exemptions) for the purchase of books and CD-ROMs or DVDs
containing legal data bases, for on-line access to legal data bases on the
Internet, etc.[12].
12. Initial Training for the Judiciary in Italy.
As far as initial training is concerned, one must bear in mind that the
successful candidates of the competitive public examination for trainee judges
and prosecutors are appointed trainee judges and prosecutors and posted to a
first instance judicial office attached to a Court of Appeal for the prescribed
training (the relevant rules have been amended by the Legislative Decree No. 26
of 2006 and the above mentioned Law No. 111 of 2007).
The length of the training is set by the law in eighteen months. The training
consists of attending a judicial office and co‑operating in the judicial
activity performed by other judges and prosecutors in the civil and criminal
sector either as single or associate judges or alternatively as public
prosecutors. It consists as well in attending training courses at the Superior
School for the Judiciary.
Until 2012 Italy was one of the few countries in Europe without an
academy or school for the judiciary. This meant that the training was directly
organised, co‑ordinated and controlled by the High Council for the Judiciary, with the help of peripheral joint bodies (judicial councils and
district commissions) and available learned judges and prosecutors
(collaborators and assignees). Nowadays the theoretical part of the initial training
in Italy is assured by the Superior School for the Judiciary, according to the
provisions of the above mentioned Law No. 111 of 2007.
We should also remark that the training period is divided into two main parts:
·
the “ordinary” training
period, during which trainees are assigned to a certain number of court
sections or prosecutorial offices;
· the “specialised” training period, during which trainees are assigned to
a court section (or prosecutorial office) similar to the one they have chosen
according to the place they have in the final score list of their competitive
examination.
According to the Legislative Decree No. 26 of 2006 and the Law No. 111
of 2007, trainees must attend a period of
training at the School and period of training in judicial offices. At the end of the period of training the School
assesses them. Files and reports are then transmitted to the High Council for
the Judiciary,
which is responsible for the final assessment affecting the future of the
trainees.
13. On-the-Job Training for
the Judiciary in Italy.
As far as the on-the-job training is concerned, once again it has to be
stressed that, until 2012, Italy did not have an autonomous institution (Academy,
or School, or Training Institute) especially in charge of providing training
for judges/prosecutors. This lamentable situation was to blame on a decision of
the Italian Court of Accounts which in 1994 decided to stop a first attempt
made in this direction by the High Council for the Judiciary. It
was therefore up to the High Council to provide for this activity. The Council
had set up a special commission, which was assisted by a Scientifical Committee
composed of 16 members (12 judges/prosecutors and 4 university professors). The
task of this committee was that of setting up training activities in the most
various fields of the law and of the judicial practice, with the help of
“teachers” coming from different professional experiences, like judges,
prosecutors, professors, lawyers, notaries,
experts, psychologists, sociologists, journalists, etc.
As
for the “offer” of initiatives organised during these years, we can remark that
they were yearly in the number of 40-50. Each training course was usually
addressed to about 100 judges/prosecutors. Attendance to these conferences had
been opened also to some lawyers, upon invitation by the High Council for
the Judiciary.
Subjects dealt with were the most various: international and comparative law,
civil law, civil procedure, penal law and criminal procedure, family and
juvenile law, commercial law, labour law, computer and law, etc.
The
training offer by the High Council was also diversified as regards the training
methods. Some courses were organised in a traditional way, with rapporteurs
delivering speeches, followed by a public discussion. Some other courses
followed patterns which were more “agile”: so, for instance, during the
“workshops on professional practice” the participants used to immediately pass to a system of discussion and
exchange of experiences.
A quite new “frontier” of judicial training was represented by the so called “local” training, upon which the High Council for the Judiciary adopted a resolution on 26 November 1998. The aim of this initiative was that of bringing the training activities close to those judges/prosecutors who for personal reasons (i.e. pregnant women, or colleagues with very little children) cannot reach Rome, where training courses use to be held. In order to organise such initiatives a special “network” had been set up, composed of judges who at local level organised training courses and other activities. Among these latter we can mention “first aid” counselling by elder and more experienced colleagues, who offered their help to younger judges/prosecutors who would like to have an exchange of views on certain topics. The activity of such training had been extended in the last years to legal training in fields of European and international law.
All of such initiatives have been taken up, in 2012,
by the Superior School for the Judiciary, which, according to already mentioned
Law No. 111 of 2007, is now in charge not only of the initial, but also of the
continuous, or “on the job” training.
14. The Career of Judges in Recommendation
No. (2010) 12 and the Italian Experience.
As far as the career of judges is concerned, the already mentioned Recommendation
No. R (2010) 12 of the Council of Europe expresses (see article
44) a very clear preference for a system based on merit: “Decisions concerning
the selection and career of judges should be based on objective criteria pre‑established by law or by the competent authorities. Such decisions
should be based on merit, having regard to the qualifications, skills and
capacity required to adjudicate cases by applying the law while respecting
human dignity.” The reality of rule making in many European countries presents
a stark contrast, inasmuch as there is an almost total lack of objective
criteria established by law for the career of judges. In this field (as in that
of the selection of judges), there is a need for procedures and criteria
whereby judges can be assessed in order for them to advance as desired in their
careers.
However, from a more general point of
view, some doubt might be cast on the efficiency of a wholly career-based
system in a body such as the judiciary, which by definition should not have a
hierarchy in the strict sense. The experience of Common Law countries in this regard, on the one hand, and the discussion
currently under way in a number of continental countries on imposing time
limits for service as senior court judge[13], on the other hand, suggest that the time for a pyramid-shaped
structure in the judiciary may be over. Furthermore, we must not forget that
now, according to article 22 of the above mentioned Recommendation
“Hierarchical judicial organisation should not undermine individual
independence.”
Some thought should also be given
subsequently to the desirability of a mechanism where advancement in one’s
career (and salary received) is closely linked with the actual duties
performed. It might be helpful, perhaps, to outline here the salient points of the
Italian system, the only one (as far as I know) to have achieved a complete
separation between grade and function[14].
It should be borne in mind from the start
that in Italy there is a single career structure for judges and public
prosecutors: the only requirement for moving from one function to the other is
an aptitude test, which is very rarely negative. Advancement now takes place
through the following stages: trainees (who in Italy are already regarded as
part of the judiciary), after a training period of about two years, can be
assigned to any of the posts in a court of first instance: judge of the court
(exercising the functions of a judge sitting alone or a judge sitting as part
of a bench of judges), judge responsible for execution of sentence, children’s
judge. The High Council for the Judiciary prepares a list of posts from among
the available vacancies and interviews the trainees, who state their preference
according to their place in the competition pass list.
After this, every four years all judges
and prosecutors have to be assessed. All in all, seven assessments are provided
for by the law during the whole career; they take place every four years. All
promotion takes place, once the necessary seniority has been attained, by
decision of the High Council for the Judiciary, on the basis of a
report by the competent Judicial Council (a local consultative body,
constituted in association with each court of appeal). Any judge/prosecutor
declared unsuitable will be subjected to a further assessment. In cases of
failure of this second assessment the judge/prosecutor will lose his/her
status.
This system, set up between 1966 and
1973, further revised in 2006 and 2007, dissociated grade from office and
eliminated competition for the rank of appeal judge and judge of the Court of
Cassation. Thus a judge may progress all the way up the career (and salary)
scale on the basis of seniority, subject to assessment by the High Council for
the Judiciary. As this method is based on the separation of grade from office,
promotion takes place irrespective of whether or not there is actually a
position available at the grade obtained. The only immediate consequence of
promotion is an increase in salary[15]. Thus, despite the fact that the designations corresponding to the
grades in the former career system are still in use, in reality such
designations are merely an indication of progression up the salary scale.
The system described above has had the
advantage of overcoming the drawbacks of advancement by selection or by
competition: that was basically a system of co-option that implied a state of
psychological subordination on the part of “inferiors” and no doubt encouraged
an attitude of conformity. The hierarchical principle is incompatible with the
principle of independence. Two provisions of the Italian Constitution: “judges
are subject only to the law” (Article 101 (2)) and “judges differ from each
other only in the diversity of their functions” (Article 107 (3)), have served
to guarantee not only the independence of the judiciary in relation to the
government, but also “internal” independence, that of every judge in relation
to the hierarchy and the judiciary. And indeed, every judge, whatever his place
in the hierarchy, is exercising the same authority to judge[16].
The
conferring on the High Council
for the Judiciary of the final decision in respect of
assessments, assignments and appointments is a true guarantee of the
independence of each judge. Furthermore, one consequence of dissociating grade
and function has been that judges with a certain seniority and professional
experience have been able, without fearing any detrimental effect on their
career, to remain in key posts in the lower courts, dealing with big criminal
organisations, business crime, the Mafia and terrorism. Otherwise, the only
alternative would have been to allocate these posts to newly appointed trainee
judges.
15.
The
Career of Judges in the Different European Legal Systems.
I
could reiterate here most of the comments made before, on the subject of
judicial selection. Under systems where recruitment is conducted on the basis
of a competition, the High Council for the Judiciary
tends to make decisions about the career of judges on the basis of a series of
objective criteria (or criteria that are being rendered objective through the
drawing up of regulations and directives). However, a large number of legal
systems do not have any objective legal criteria in this regard (such is the
case in, for example, Cyprus, Estonia, the Russian Federation, Finland,
Iceland, Lithuania, Luxembourg, Norway, the Netherlands and the Czech
Republic), while others have regulatory criteria (see e.g. Germany or
Slovakia).
Moreover,
in certain common law systems (to the extent, of course, to which we can speak
here in terms of judges’ careers), a tendency can be seen towards greater
objectivity in the rules for promotion: thus in Britain promotion of judges now
follow well publicised criteria.
As
for the countries of Central and Eastern Europe, I can only refer once again to
the distinction between systems where the Judicial Councils (or Councils of
Judges, Councils of Justice, etc.) are given real decision-making powers (in
particular Croatia, Poland, Romania, Slovenia and the Baltic countries) and
others where, in my opinion, it is very difficult to speak in terms of the
self-regulation of the judiciary in relation to the career of judges.
Mention
has already been made of the special case of Italy, in having a complete
separation between grade and function in terms of career (see above, Paragraph 14).
THE STATUS OF JUDGES AND
THE PROTECTION OF JUDICIAL INDEPENDENCE
THROUGH A HIGH COUNCIL FOR THE JUDICIARY:
INTERNATIONAL STANDARDS AND THE ITALIAN EXPERIENCE
Coming
now to some of the main rules concerning the judicial status we shall remark
that one of the most crucial principles to safeguarding the independence of the
judiciary is that of irremovability. In this context article 52 of the above
mentioned Recommendation
No. R (2010) 12 provides for that “A judge should not receive a
new appointment or be moved to another judicial office without consenting to
it, except in cases of disciplinary sanctions or reform of the organisation of
the judicial system.”
Some European legislations are in conflict with the rule set out in the
recommendation. What gives rise to the greatest concern is not, of course, the
possibility of removal as the result of a disciplinary offence (even if one
might challenge the validity of a principle that allows a judge to be at one
and the same time a “bad judge” in one area and a “good judge” in another) but,
once again, the actual law-making situation in certain countries of Central and
Eastern Europe. For example, the case of the Czech Republic (see below, in this
same paragraph) shows that a pure and simple reference in the Constitution to
the ordinary law for the purpose of determining exceptions to the principle of
irremovability (a principle that is established by the Constitution itself) can
lend itself to attempts to limit the independence of the judiciary.
In many European
countries the irremovability of judges is enshrined
within the country’s constitution (such is the case, for example, with Andorra,
Croatia, the Russian Federation, France, Ireland, Iceland, the former Yugoslav
Republic of Macedonia, Lithuania, Luxembourg, Malta, Norway, Poland, the Czech
Republic, Romania, Slovakia, Slovenia and Turkey; to this list of countries one
might add Italy) or in an ordinary law (such is the case in Belgium, the
Netherlands, Switzerland and, of course, the United Kingdom, which does not
have a written constitution).
As
far as exceptions to this principle are concerned, a number of constitutions
refer back to the ordinary law. In most cases, this would involve transfers
following disciplinary proceedings, although there are situations where
transfers may be made even outside the scope of such proceedings. Here one
might mention Iceland, where under Article 15 of Law No. 15 of 1998 the
“Council for Judicial Affairs” is allowed to “move judges between
jurisdictions, if it deems it necessary, for a period up to six months every
ten years.”
One
of the most worrying situations, however, concerns the Czech Republic. As I
once had occasion to remark in Prague at a conference organised jointly by the
Union of Czech Judges and the Senate of the Czech Republic, the government
–because of the reference of Article 82 (2) of the Constitution to the ordinary
law–introduced a series of reforms intended to restrict the principle of the
irremovability of judges[17].
I would
like to recall in this framework that in fact, neither the Basic Principles on
the Independence of the Judiciary drawn up by the UN in 1985 (see Article 12,
which states: “12. Judges, whether appointed or elected, shall have guaranteed
tenure until a mandatory retirement age or the expiry of their term of
office”), nor Principle I 3. Recommendation No. R (94) 12, nor Recommendation
No. R (2010) 12, cite any instance in which it is permissible
to derogate from the rule of irremovability (save for cases of disciplinary
responsibility, or reorganisation of the judicial system).
Finally
in this context it is must be said that in some countries judges are nominated
for a predetermined length of time: this happens for the first
appointments/nominations of judges in Croatia (5 years), Slovakia (4 years) and
Romania (6 years but only for Supreme Court judges). Likewise in Norway’s
“temporary judges” can be appointed for a specific period to fill temporary
needs, in case of illness, leaves or backlog of cases in the court. It is also
in this field that the principle of the independence of the judiciary might be
infringed, particularly where the “confirmation” of the appointment (or
“re-appointment” or “re-election”) of judges is left to the executive or
legislative authority. Clearly, in such a case there would be reason to fear
that the conduct of the judges in question and, especially, a decision in any
case(s) involving some politicians, or some political power centre, might
inevitably be regarded as decisive by those required to decide on the
applications of the judges concerned.
In this framework let me
recall the conclusions of Opinion No.1 of the Consultative Council of European
Judges of the Council of Europe (2001) “on standards concerning the
independence of the judiciary and the irremovability of judges”[18]:
“50. Certain countries make some appointments for a limited period of
years (e.g. in the case of the German Federal Constitutional Court, for 12
years). Judges are commonly also appointed to international courts (e.g. the
European Court of Justice and the European Court of Human Rights) for limited
periods.
51. Some countries also make extensive use of deputy judges, whose
tenure is limited or less well protected than that of full-time judges (e.g.
the UK and Denmark).
52. The CCJE considered that
where, exceptionally, a full-time judicial appointment is for a limited period,
it should not be renewable unless procedures exist ensuring that:
(i) the judge, if he or she wishes, is considered for re-appointment by
the appointing body and
(ii) the decision regarding re-appointment is made entirely objectively
and on merit and without taking into account political considerations.
53. The CCJE considered that when tenure is provisional or limited,
the body responsible for the objectivity and the transparency of the method of
appointment or re-appointment as a full-time judge are of especial importance
(see also paragraph 3.3 of the European Charter).”
Finally, according to Article 51 of the Recommendation
No. R (2010) 12, “Where recruitment is made
for a probationary period or fixed term, the decision on whether to confirm or
renew such an appointment should only be taken in accordance with paragraph 44
so as to ensure that the independence of the judiciary is fully respected.”
Article 22 of the Recommendation
No. R (2010) 12 of the Council of Europe deals with the problem
of protecting the judge against “restriction, improper influence, pressure,
threat or interference, direct or indirect, from any authority, including
authorities internal to the judiciary.” For an efficient implementation of that
rule, the text further stipulates that: “Superior courts should not address
instructions to judges about the way they should decide individual cases,
except in preliminary rulings or when deciding on legal remedies according to
the law.” Article 14 further provides for that “The law should provide for
sanctions against persons seeking to influence judges in an improper manner.”
This rule should be
seen in conjunction with Article 6: “Judges should have sufficient powers and
be able to exercise them in order to carry out their duties and maintain their
authority and the dignity of the court. All persons connected with a case,
including public bodies or their representatives, should be subject to the
authority of the judge.”
It would be no
exaggeration to see here an incipient acknowledgement at European level of the
“contempt of court” rule, which has as its basis the need to prevent any form
of interference with the independence of the judge in deciding a case.
Furthermore, the principles we have just been discussing cannot be enforced
otherwise than through the imposition of a sanction that the judge concerned
should be able to apply (of course, subject to a form of appeal against any
such decision). In this framework I have to point out that, under my pressure,
the Commission charged by the Council of Europe to revise the former
Recommendation No. R (1994) 12, inserted in the Explanatory Memorandum (see
Article 21) an explicit reference to “contempt of court”: “The Recommendation
calls for all necessary measures to be taken to protect and promote the
independence of judges. These measures could include laws such as the ‘contempt
of court’ provisions that already exist in some member states (Recommendation,
paragraph 13).”
We should also see
in a very positive light the final sentence Article 47 of the said Explanatory
Memorandum, according to which judges should not be compelled “to report on the
merits of cases they are dealing with.”
There might also be
some risk of influence where the allocation and
withdrawal of cases is concerned.
In this connection, Article 24 states that “The allocation of cases
within a court should follow objective pre-established criteria in order to
safeguard the right to an independent and impartial judge. It should not be
influenced by the wishes of a party to the case or anyone otherwise interested
in the outcome of the case.” It appears excessive, however, to exclude any
system of distribution other than one based (see Article 32 of the Explanatory
Memorandum) “on a drawing of lots, distribution in accordance with alphabetical
order,” which might well prove detrimental to specialisation, particularly in
courts with a large number of trainee judges. In fact, the recommendation
mentions this system purely as an example and we should not therefore exclude
such systems as, for example, allocation–by the head of the court concerned
and/or the president of each division–on the basis of the special expertise of
each civil or criminal division and of each judge.
A hint to this system can be see in the final part of Article 32 of the
Explanatory Memorandum, where reference is made to “assigning cases to
divisions of courts in an order specified in advance (so-called ‘automatic
distribution’)” or to “the sharing out of cases among judges by decision of
court Presidents.” What is important, so the said Article further explains, “is
that the actual distribution is not subject to external or internal influence
and designed to benefit any of the parties. Appropriate rules for substituting
judges could be provided for within the framework of rules governing the
distribution of cases. Caseload and overburdening are valid reasons for the
distribution or removal of cases provided such decisions are taken on the basis
of objective criteria (Recommendation, paragraph 24).”
As far as
immunity of judges is concerned, almost all legislations in Eastern European
countries extensively provide for rules on this topic. The western tradition
doesn’t know this kind of guarantee for the independence of judges and
international documents are silent on this subject. So, for instance, in Italy,
in France, in Spain or in Germany judges are accountable for their actions
according to the principles of criminal and civil law, exactly as any other
citizen. But I understand very well that in societies where the respect for
judges and their independence are still not so deeply rooted, it may seem
preferable to protect the judiciary also by these means.
18. The
High Council for the Judiciary: International Standards.
It is sure
that, as far as judicial status is concerned, the best protection for judicial
independence, both “internal” and “external”, can only be assured by a High
Council for the Judiciary.
According to
western European standards, such a Council should be the autonomous
self-administration body in charge of safeguarding the independence of the
judiciary. It should be composed exclusively of a majority representation of
judges and public prosecutors. The High Council for the Judiciary should be
entrusted with the appointment, assignment, transfer, promotion, and
disciplinary measures concerning judges and public prosecutors. It should have
the power to take decisions in all these matters and not to merely submit
proposals to the administrative or legislative powers of the State.
A clear reference to this body is to be
found already in the European Charter on the status of judges, approved by the
Council of Europe in 1998. A first direct reference to it is contained in
Articles 1.3 and 1.4, respectively stating that “In respect of every decision
affecting the selection, recruitment, appointment, career progress or
termination of office of a judge, the statute envisages the intervention of an
authority independent of the executive and legislative powers within which at
least one half of those who sit are judges elected by their peers following
methods guaranteeing the widest representation of the judiciary” and that “The
statute gives to every judge who considers that his or her rights under the
statute, or more generally his or her independence, or that of the legal
process, are threatened or ignored in any way whatsoever, the possibility of
making a reference to such an independent authority, with effective means
available to it of remedying or proposing a remedy.”.
In the field of judicial selection,
recruitment and initial training the Charter says that (paragraph 2.1) “The
rules of the statute relating to the selection and recruitment of judges by an
independent body or panel, base the choice of candidates on their ability to
assess freely and impartially the legal matters which will be referred to them,
and to apply the law to them with respect for individual dignity” and that
(paragraph 2.3) “The authority referred to at paragraph 1.3 hereof, ensures the
appropriateness of training programmes and of the organization which implements
them, in the light of the requirements of open‑mindedness, competence and
impartiality which are bound up with the exercise of judicial duties.”.
As far as appointment and
irremovability are concerned, the same document provides for that (paragraph
3.1) “The decision to appoint a selected candidate as a judge, and to assign
him or her to a tribunal, are taken by the independent authority referred to at
paragraph 1.3 hereof or on its proposal, or its recommendation or with its
agreement or following its opinion” and that (paragraph 3.3) “Where the
recruitment procedure provides for a trial period, necessarily short, after
nomination to the position of judge but before confirmation on a permanent
basis, or where recruitment is made for a limited period capable of renewal,
the decision not to make a permanent appointment or not to renew, may only be
taken by the independent authority referred to at paragraph 1.3 hereof, or on
its proposal, or its recommendation or with its agreement or following its
opinion.”.
As well in the field of career
development the Charter states that “Decisions as to promotion are then
pronounced by the authority referred to at paragraph 1.3 hereof or on its
proposal, or with its agreement,” whereas, in the field of judicial liability,
paragraphs 5.1, 5.2 and 5.3 provide for as follows: “The dereliction by a judge
of one of the duties expressly defined by the statute, may only give rise to a
sanction upon the decision, following the proposal, the recommendation, or with
the agreement of a tribunal or authority composed at least as to one half of
elected judges, within the framework of proceedings of a character involving
the full hearing of the parties, in which the judge proceeded against must be
entitled to representation. The scale of sanctions which may be imposed is set
out in the statute, and their imposition is subject to the principle of proportionality.
The decision of an executive authority, of a tribunal, or of an authority
pronouncing a sanction, as envisaged herein, is open to an appeal to a higher
judicial authority.” (paragraph 5.1).
“Compensation
for harm wrongfully suffered as a result of the decision or the behaviour of a
judge in the exercise of his or her duties is guaranteed by the State. The
statute may provide that the State has the possibility of applying, within a
fixed limit, for reimbursement from the judge by way of legal proceedings in
the case of a gross and inexcusable breach of the rules governing the
performance of judicial duties. The submission of the claim to the competent
court must form the subject of prior agreement with the authority referred to
at paragraph 1.3 hereof.” (paragraph 5.2).
“Each
individual must have the possibility of submitting without specific formality a
complaint relating to the miscarriage of justice in a given case to an
independent body. This body has the power, if a careful and close examination
makes a dereliction on the part of a judge indisputably appear, such as
envisaged at paragraph 5.1 hereof, to refer the matter to the disciplinary
authority, or at the very least to recommend such referral to an authority
normally competent in accordance with the statute, to make such a reference.” (paragraph 5.3).
Finally, paragraph 7, dealing with the issue of termination of office,
provides for that “A judge permanently ceases to exercise office through
resignation, medical certification of physical unfitness, reaching the age
limit, the expiry of a fixed legal term, or dismissal pronounced within the
framework of a procedure such as envisaged at paragraph 5.1 hereof,” (paragraph
7.1) and that “The occurrence of one of the causes envisaged at paragraph 7.1
hereof, other than reaching the age limit or the expiry of a fixed term of
office, must be verified by the authority referred to at paragraph 1.3 hereof”
(paragraph
7.2).
Recommendation
No. R (2010) 12 of the Council of Europe dedicates four articles to the
Councils for the Judiciary.
After explaining in
Article 26 that “Councils for the judiciary are independent bodies, established
by law or under the constitution, that seek to safeguard the independence of
the judiciary and of individual judges and thereby to promote the efficient
functioning of the judicial system,” the Recommendation provides for (Article
27) that “Not less than half the members of such councils should be judges
chosen by their peers from all levels of the judiciary and with respect for
pluralism inside the judiciary.”
According to
Article 28, “Councils for the judiciary should demonstrate the highest degree
of transparency towards judges and society by developing pre-established
procedures and reasoned decisions.” At the same time, the Recommendation tries
to safeguard judicial independence even vis-à-vis such self administration
bodies: “In exercising their functions, councils for the judiciary should not
interfere with the independence of individual judges” (see Article 29).
19. The High Council for the Judiciary: The Italian Experience (Members
and Electoral System).
The Italian Constitution of 1947 stipulates in its Article 104 as follows:
“The
Judiciary is an autonomous body. It is not subject to any other power of the
State.
The President of the
Republic is Chairman of the High Council for the Judiciary.
The Chief Justice of the Supreme
Court of Cassation and the Chief Public Prosecutor of the same Court are ipso jure members of it.
As for the other members,
two-thirds of them are elected by all regular judges of different categories,
and one-third by Parliament in joint session, selection being made among
professors of law faculties and lawyers of at least fifteen years standing.
The Council elects an
Assistant Chairman from among the members elected by Parliament.
The elected members hold
office for four years and are not immediately re-eligible.
While they are in office
they may not be registered on the Rolls of the legal profession, nor be members
either of Parliament or of a Regional Council.”[19].
The Minister for Justice is not member of the Council. However he/she can
attend its meetings when it appears necessary in order to give explanations or
information. He/she can not take part in the vote[20]. According to Article 110 of the Italian
Constitution, the Minister is entrusted only with “the organization and operation of services concerning the
administration of justice.”
The High Council for the Judiciary (Consiglio
Superiore della Magistratura – C.S.M.) is therefore the self governing body of the ordinary judiciary[21]. Under the judicial system’s laws, the C.S.M. is entrusted with
the appointment, assignment, transfer, promotion, and disciplinary measures
concerning Judges and Public Prosecutors (see Art. 105 Const.).
Currently[22] the Council is composed of twenty-seven members:
‑ the President of the Republic, who chairs the C.S.M.;
‑ the Chief Judge of the Supreme Court of Cassation;
‑ the Prosecutor General of the Supreme Court of Cassation;
‑ eight members appointed by Parliament (the so‑called
“laymen”);
‑ sixteen members appointed by the judges and prosecutors (the so‑called
“togati”–from toga, which means “robe”–or professional judges and
prosecutors).
The Constitution (Art. 104 Const.) envisages that the President of the
Republic and the Chief Judge and Prosecutor General of the Court of Cassation
should be members of the Council “by right”. The only other restriction it
imposes is to require two thirds of the other members to be elected by the
ordinary judges and prosecutors belonging to the various ranks and one third by
Parliament in joint session chosen from among regular university law
professors and lawyers with fifteen years experience in the legal profession.
Therefore, the number of elected members and the election procedures are
regulated by ordinary law[23].
As mentioned earlier, the number of elected members is currently set at
24 (16 judges and 8 “laymen”). 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 members to be elected by the judges and prosecutors are chosen as
follows: two from the judges/prosecutors with the rank and function of Court of
Cassation judge/prosecutor, four from among the prosecutors performing their
duties as prosecutors before first instance or appellate courts, ten from among
judges performing their duties within first instance or appellate courts.
Before the last reform of the C.S.M. electoral system (Statute of
28 March 2002, No. 44) the elections of the members chosen from among the
Judiciary took place on the basis of an adjusted proportional election system
in which all judges and prosecutors participated[24]. Candidates formed electoral lists to be submitted to the colleagues.
These lists reflected the four “wings” belonging to the National Judges and
Prosecutors Association (Associazione Nazionale dei Magistrati – A.N.M.),
thus acting as a sort of “political” parties.
This system was radically changed through Statute of 28 March 2002, No.
44, which reduced from 33 to 27 the total number of the C.S.M. members.
The old proportional system was replaced by a majority one. As usual all judges
and public prosecutors have the right to vote, but “regional” constituencies
(or electoral districts) have now been abolished. Currently there are only
three constituencies concerning respectively:
(a)
judges and prosecutors of
the Supreme Court of Cassation,
(b)
prosecutors before first
instance and appellate courts and
(c)
judges of first instance and
appellate courts.
Any voter receives three ballots and has to cast a vote (just one vote)
for any of the three ballots:
(a)
one for one candidate of the
Supreme Court,
(b)
one from a candidate from a
public prosecutor office before a first instance or an appellate court, and
finally
(c)
one for a judge from a first
instance or an appellate court. Elected are those candidates who have received
the most votes.
Under the Italian Constitution, C.S.M.’s elected members hold office
for four years, and are not immediately eligible for reappointment (Art. 104
Const.).
The Constitution (Art. 104 Const.) also provides for the C.S.M. to elect
a Vice President from among the members designated by Parliament. The Vice
President, 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 C.S.M.’s Vice
President will replace the President if he is absent or unable to attend and
will exercise the functions delegated to him by the President[25].
As far as the C.S.M.’s position is concerned, the Constitutional
Court has established that, although the C.S.M.
is an organ that performs
basically administrative functions, it is not part of the public
administration, as it is extraneous to the organisational system directly
under the control of the State or Regional governments.
With reference to the functions assigned to it by the Constitution, the C.S.M.
has been defined as “a body of clear constitutional importance.” Its functions
may be defined as the “administration of the activities of the judiciary”: as
already said, they consist in the recruitment, assignment, transfer, promotion
and disciplinary measures concerning judges and prosecutors, including also the
organisation of the judicial offices with a view to ensuring and guaranteeing
that each and every member of the judiciary is subject “only to the law” when
exercising his/her office. In this latter respect, it should be stressed that
at the proposal of the Presidents of the Appeal Courts, and after consulting
the Judicial Councils, every two years the C.S.M. approves the personnel
“tables” of the judicial offices of each district (i.e.: in how many sections
each court is divided and to which of any section judges are assigned) and at
the same time approves objective and predetermined criteria for assigning the
case files to individual judges.
The C.S.M. is thus the highest ranking body in charge of the
administration of judicial activities. Local judicial Councils and the heads
of individual judicial and prosecuting offices also co‑operate, with different, mostly advisory, roles.
Works within the Council are always carried on through two phases. Any
decision has to be first discussed within one of the Commissions of which the C.S.M.
is composed. So e.g. the decision of appointing a candidate to the post of
President of a court has to be discussed within the relevant C.S.M.
Commission, which will issue a proposal. This proposal shall be brought before
the plenary session, which shall take the final decision on it. Any commission is
composed of six members (two “laymen” and four professional judges or
prosecutors).
The law setting up the C.S.M. entrusts it the power to issue
quasi‑statutory measures which may be divided into three categories:
a)
internal regulations and
administrative/accounting regulation, both of which are envisaged by the law;
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 pursuant
to a systematic interpretation of
the sources.
As far as the disciplinary power of the C.S.M. is concerned, it
should be remarked that the Council cannot start before itself any disciplinary
proceedings. This power is entrusted only to the Minister of Justice and to the
Chief Prosecutor before the Supreme Court of Cassation. The proceeding is later
carried on by a special Disciplinary Section of the Council. This subject will
be dealt with later on (see below, Paragraph 24).
The Council plays as well a relevant role in the field of judicial
selection and until the setting up of the School for the Judiciary it also
played an essential part in judicial training, as in Italy no school for the
judiciary existed until 2012: this topic has already been dealt with (see
above, Paragraph 12).
JUDICIAL LIABILITIES:
INTERNATIONAL STANDARDS AND THE ITALIAN EXPERIENCE
21. International Standards on Judicial Liabilities.
The topic of judicial liabilities is more and more under the attention
of international bodies, as it is witnessed by references in many documents,
declarations and recommendations. The “Basic Principles on the Independence of
the Judiciary,” elaborated by the United Nations in 1985 is the first document
of this kind.
Article 2, for instance, provides for that “The judiciary shall decide matters
before them impartially, on the basis of facts and in accordance with the law,
without any restrictions, improper influences, inducements, pressures, threats
or interferences, direct or indirect, from any quarter or for any reason.”
Article 6 states “The principle of the independence of the judiciary entitles
and requires the judiciary to ensure that judicial proceedings are conducted
fairly and that the rights of the parties are respected.” According to Article
8, judges “shall always conduct themselves in such a manner as to preserve the
dignity of their office and the impartiality and independence of the
judiciary.”
A whole section is dedicated to
“Discipline, Suspension and Removal.” Article 17 safeguards the “right to a
fair hearing”; it provides as well that “The examination of the matter at its
initial stage shall be kept confidential, unless otherwise requested by the
judge.” According to Article 19 “All disciplinary, suspension or removal
proceedings shall be determined in accordance with established standards of
judicial conduct.” Finally, Article 20 states that “Decisions in disciplinary,
suspension or removal proceedings should be subject to an independent review.
This principle may not apply to the decisions of the highest court and those of
the legislature in impeachment or similar proceedings.”
At the European level, the above
mentioned Recommendation
No. R (2010) 12 of the Council of Europe devotes a whole Chapter
to the issues of “Duties and Responsibilities” of Judges. Among these Articles,
some specifically concern Liability and disciplinary proceedings.
Main duties of judges are:
·
the protection of the rights
and freedoms of all persons equally, respecting their dignity in the conduct of
court proceedings (Article 59);
·
independence and impartiality
in all cases (Article 60);
·
the duty to adjudicate on
cases which are referred to them; withdrawing from a case or declining to act
are allowed only where there are valid reasons defined by law, and not
otherwise (Article 61);
·
managing cases with due
diligence and within a reasonable time (Article 62);
·
giving clear reasons for
their judgments in language which is clear and comprehensible (Article 63);
·
encouraging parties, in
appropriate cases, to reach amicable settlements (Article 64);
·
regularly updating and
developing their proficiency (Article 65).
As far as liability and disciplinary proceedings are concerned, Article
66 provides for that “The interpretation of the law, assessment of facts or
weighing of evidence carried out by judges to determine cases should not give
rise to civil or disciplinary liability, except in cases of malice and gross
negligence.”
Another fundamental rule is enshrined in Article 67, according to which
any direct lawsuit by people against judges is forbidden: “Only the state may
seek to establish the civil liability of a judge through court action in the
event that it has had to award compensation.”
Disciplinary proceedings should be
conducted by an independent authority or a court with all the guarantees of a
fair trial and provide the judge with the right to challenge the decision and
sanction. Disciplinary sanctions should be proportionate (Article 69). Judges
should not be personally accountable where their decision is overruled or
modified on appeal (Article 70).
According to Article 71, “When not exercising judicial functions, judges
are liable under civil, criminal and administrative law in the same way as any
other citizen.” This rule deals somehow with the topic of judicial immunity
(see above, Paragraph 17). I have already remarked that
almost all legislations in Eastern European countries extensively provide for
rules on this topic. The western tradition doesn’t know this kind of guarantee
for the independence of judges and international documents are silent on this
subject. So, for instance, in Italy, in France, in Spain or in Germany judges
are accountable for their actions according to the principles of criminal and
civil law, exactly as any other citizen. But I understand very well that in
societies where the respect for judges and their independence are still not so
deeply rooted, it may seem preferable to protect the judiciary also by these
means.
Coming to describe the situation in Italy, Legislative Decree No.
109/2006 (“Rules regulating breaches of discipline by judges and prosecutors,
relevant sanctions, and application procedure”) notably changed the previous
system[26], as part of the global reform of the judicial system approved by Law
No. 150 of 2005. The first chapter of the legislative decree is divided into
two sections, one dedicated to breaches of discipline and the other to
disciplinary sanctions.
Breaches of discipline can be divided into two categories: on the one
hand, cases of breaches committed in the exercise of the judicial functions,
and on the other, cases of breaches committed out of court. The substantive
rules tend to typify breaches of discipline of judges and prosecutors, both
with regard to conducts in court and those out of court, without prescribing
any additional closing provisions.
Article one of the above mentioned legislative decree is dedicated to
“duties of a judges/prosecutor” and provides for a detailed list of fundamental
duties to be complied with by judges and prosecutors, while performing judicial
functions. They are basic principles and ethical values for practitioners of
the judicial functions, on the basis of studies by legal scholars and case law.
Reference is thus made to the duty of impartiality, propriety,
diligence, commitment, confidentiality, balance and respect for the dignity of
individuals as the fundamental principles to be complied with when exercising
the judicial functions.
Article 2 of the legislative decree sets forth a detailed list of
mandatory cases of breaches of discipline in the exercise of the judicial functions,
while Article 3 provides for a number of conducts held out of court that amount
to breaches of discipline and give rise to disciplinary proceedings.
Given that any interpretation of the law, and the assessment of facts
and evidence, can never amount to breaches of discipline, 25 cases are
identified amounting to typical breaches committed while exercising the
judicial functions.
We could here provide some examples.
·
First of all, any conduct
that, contravening the duties of a judge/prosecutor, causes unfair damage or
unfair advantage to one of the parties.
·
Other example can be omitting
communication to the High Council of the Judiciary on the possible
applicability of the circumstances of parental incompatibilities as per
Articles 18 and 19 of the law on the judicial status.
·
Furthermore, non-compliance
with the obligation to abstain in cases provided for by the law.
·
Conducts that are seriously
unfair to the parties, their lawyers, the witnesses or anyone relating to a
judge, or to prosecutors or collaborators.
·
Undue interference in the
judicial activity of a colleague and omitting communication of the said
interference to the head of the judicial office.
·
Serious violations of the law
caused by inexcusable ignorance or negligence and the misinterpretation of
facts caused by inexcusable negligence.
Article 3 of the above legislative decree lists 8 cases of breaches of
discipline perpetrated out of court.
Examples are:
·
Using the title of
judge/prosecutor to obtain an unfair advantage for oneself or others.
·
Keeping relations to people
who are subject to criminal, or other, proceedings assigned to the magistrate
concerned.
·
Keeping relations to people
who are known to be habitual or professional criminals.
·
Keeping relations to people
who have prior convictions for intentional offences and have been sentenced to
a term of imprisonment of over three years, or have been
·
imposed a precautionary
measure, except when the person has been rehabilitated.
·
Knowingly doing business with
one of the above persons.
·
Discharging jobs out of court
without the required authorisation of the High Council of the Judiciary.
·
Participating in secret
associations or associations whose membership is objectively incompatible with
the exercise of judicial functions.
·
Registration or systematic
and continuing participation in political parties, or involvement in the
activities of individuals working in the economic or financial sector who can
condition the exercise of their functions or in any case jeopardise the image
of a judge/prosecutor.
23. Disciplinary Sanctions for
Judges and Prosecutors in Italy.
The second section of the legislative decree sets the sanctions for
breaches of discipline. The law provides for different types of sanctions, which
are adapted to the individual breaches of discipline described above. The law,
in fact, introduces the criterion of tale
crimen talis poena, as a consequence of the typification of the breaches.
The various sanctions are:
a.
warning, which formally invites
the judge/prosecutor to comply with his duties;
b.
censure, which is a formal
statement of disapproval;
c.
loss of seniority, which
cannot be of less than two months and more than two years;
d.
temporary incapacity to
exercise an directive (head of court) or semidirective (head of section)
position, which cannot be for less than six months and more than two years;
e.
suspension from functions,
which is the suspension from the functions, the salary, and the
judge/prosecutor is placed out of the rolls of the Judiciary;
f.
removal from office, with the
termination of employment.
There is also the accessory sanction of enforced transfer that a
disciplinary judge can apply when imposing a sanction stricter than a warning.
Such additional sanction is always adopted in given specific cases identified
by law. An enforced transfer can also be ordered as a precautionary and
temporary measure when there is circumstantial evidence of the breach of
discipline and there are reasons of particular urgency.
24. Disciplinary Proceedings for
Judges and Prosecutors in Italy.
Disciplinary proceedings are judicial in nature and are regulated by the
rules of the code of criminal procedure, in view of their compatibility. The
competent authority is the Disciplinary Division of the C.S.M., made up of six members.
According to Statute No. 44 of 28th March 2002, members of this Section
are:
·
The Vice President of the C.S.M.,
who chairs this Section,
·
One of the members elected
by the Parliament,
·
One member elected from
among the judges or prosecutors of the Supreme Court of Cassation,
·
One member elected from
among the prosecutors performing their duties before a first instance or an
appellate court,
·
Two members elected from
among the judges performing their duties within a first instance or an
appellate court.
The total number is therefore of six. In case of parity the most
favourable solution for the accused judge will prevail.
Disciplinary proceedings are instituted at the initiative of the
Minister of Justice and the Prosecutor General attached to the Court of
Cassation. Prosecution has been changed from discretionary to mandatory for the
Prosecutor General, while it remains discretionary for the Minister. The
mandatory nature of prosecution is linked with the choice of typifying breaches
of discipline, and is very similar to that within the criminal system, and
imposes strict compliance with the principle of legal certainty, so as to avoid
uncertainties in law application as much as possible.
The law also provides for a general clause for the disciplinary
irrelevance of a conduct should the act be of “scarce importance.” This clause
will work on a different level from the Prosecutor General’s authority to set
aside a case. In fact, the Prosecutor General has the autonomous power to set
aside a case when the act in question does not amount to a breach of conduct,
is the subject of an incomplete report, does not fall within any of the typical
cases identified by law, or when investigations show that the act was
inexistent or not committed.
The decision by the Prosecutor General to set aside the case is
transmitted to the Minister of Justice. The latter can request a copy of the
case file within ten days of receipt of the measure, and in the subsequent
sixty days can ask the President of the Disciplinary Division to set a hearing
for discussion, and issue the relevant charges. At the hearing, the functions
of public prosecutor are in any case exercised by the Prosecutor General or one
of his deputies.
Once the first stage is over, the law provides for the proceedings to be
instituted within a year of the notice of the breach, of which the Prosecutor
General attached to the Court of Cassation had knowledge following preliminary
investigations or a detailed report or communication of the Minister of
Justice. Pursuant to the legislative decree, then, within two years of the
commencement of the proceedings, the Prosecutor General has to make the
conclusive requests, and within two years of the request, the Disciplinary
Division of the C.S.M. has to make a
decision. The law also stipulates that disciplinary proceedings cannot be
instituted ten years after the act was committed.
As from the beginning, notice of the disciplinary proceedings must be
given to the accused within thirty days and the accused can be assisted by
another judge/prosecutor or a lawyer. Then, investigations are conducted by the
Prosecutor General, who makes his requests sending the case file to the
Disciplinary Division of the C.S.M.
and giving notice thereof to the accused.
If he does not think that he has to request an order setting aside the
case, the Prosecutor General issues the charges and asks for a hearing for the
oral discussion of the case to be set. The Minister of Justice can intervene in
the disciplinary proceedings by requesting investigations, requesting to extend
the action instituted by the Prosecutor General to other acts, exercising its
authority to issue an integration of the disciplinary charges in the cases
instituted by the Prosecutor General, and by asking to change the disciplinary
charges in case of actions he has instituted himself, by exercising its
authority to make the charges and autonomously ask to set the date of the
disciplinary proceedings in all the cases in which he disagrees with the request
for acquittal issued by the Prosecutor General.
The discussion of a case within disciplinary proceedings, which occurs
by public hearing, consists of hearing the report of one of the members of the Disciplinary
Division, gathering ex officio evidence, hearing the reports, inspections,
procedures and evidence gathered, as well as the discovery of documents. The
Disciplinary Division makes a decision after having heard the parties and the
said judgement can be opposed before the Joint Divisions of the Court of
Cassation. Once it becomes final it can be reviewed in some exceptional cases
provided for by the law.
25. Civil Liability for Judges
and Prosecutors in Italy.
Disciplinary liability is the result of a breach of the functional
duties a judge/prosecutor undertakes vis-à -vis the State at the time of
appointment. Civil liability, instead, is the liability that a judge/prosecutor
undertakes vis-à -vis the parties to the proceedings or other entities, and
which results from any mistake or noncompliance affected in the exercise of
his/her functions.
The civil liability of judges/prosecutors, which is similar to that of
any other public servant, is based on article 28 of the Constitution.
Following the outcome of a referendum which led to the repeal of earlier
rules severely limiting cases of civil liability, the issue is now regulated by
Law No. 117 of 13th April 1988.
From a substantive viewpoint, this law affirms the principle of the
right to compensation for any unfair damage resulting from the conduct,
decision or judicial order issued by a judge/prosecutor either with “intention”
or “serious negligence” while exercising his/her functions, or resulting from a
“denial of justice” (Article 2).
After explaining in detail the notions of “serious negligence” (Article
2, Paragraph 3) and “denial of justice” (Article 3), the law nevertheless
clarifies that the activities of interpreting the law and assessing the facts
and evidence (Article 2, Paragraph 2) cannot give rise to such liability. In
this respect, in any such cases, it is the procedure itself which safeguards
the parties, i.e. by resorting to the system of appeals against the order
assumed to be defective.
Without prejudice to the fact that in relation to the merits the
judicial activity is unquestionable, something can nevertheless be done in
respect of a judge’s or prosecutor’s disciplinary liability in cases
where–according to the C.S.M.
Disciplinary Division’s case law–an exceptional or evident breach of law has
been committed, or the judicial function has been exercised in a distorted way.
From a procedural viewpoint, it should be pointed out that the liability
for compensating damage rests with the State, against which an injured party
may take legal action (Article 4). If the State’s liability is established,
then the State may, subject to certain conditions, in turn claim compensation
from the judge/prosecutor (Article 7).
A liability action and relevant proceedings must comply with specific
rules.
The most important of these rules provides for liability proceedings to
be subject to:
·
the lodging of all ordinary
means of appeal, including any other remedy for amending or revoking the
measure that is assumed to have been the cause of unfair damage;
·
the existence of a deadline
for exercising such action (Article 4);
·
a decision on the action’s
admissibility, for the purposes of checking the relevant prerequisites;
·
observance of the terms;
·
a preliminary assessment of
the evidence to see whether the charges are grounded (Article 5);
·
and the judge’s power to
intervene in the proceedings against the State (Article 6).
In order to guarantee the transparency and impartiality of the
proceedings, the system prescribes for the jurisdiction over such proceedings
to be transferred to a different judicial office (Articles 4 and 8), to ensure
that the proceedings are not assigned to a judge of the same office as the
office of the judge/prosecutor whose activity is assumed to have given rise to
an unfair damage. The criteria for establishing the competent judge have been
amended by Law No. 420 of 2nd December 1998, with the specific
objective to avoid any risk of prejudice while such cases are decided.
26. Criminal Liability for
Judges and Prosecutors in Italy.
From a criminal viewpoint, in their capacity as public officials, judges
and prosecutors can be made to account for offences committed in the exercise
of their functions (e.g. abuse of office, corruption, corruption connected with
judicial duties, extortion, failure to perform official duties, etc.).
Parallel to this, they may act, in conjunction with the State, in their
capacity as victims of a crime committed by private individuals against the
public administration.
In this respect, it should be noted that under the aforesaid Law No. 420
of 2nd December 1998, the rules governing jurisdiction over such
proceedings have radically been reformed. In addition to transparency, the aim
of this reform was to ensure a judge’s maximum autonomy of decision when called
on to decide cases in which other colleagues are involved for whatever reason.
Significant changes were made to the rules of criminal procedure
(Articles 11 of the code of criminal procedure and 1 of the implementing rules
of the code of criminal procedure), by creating a mechanism that establishes
the competent judge to avert the risk of “reciprocal” (or “crossed”)
jurisdictions. The same mechanism is in force in the civil actions when a
magistrate is a party thereof, and is limited to actions regarding restitutions
and compensation of damage caused by the offence.
27. Excerpts from the Italian Constitution (Provisions Concerning the
Judiciary).
|
PART II RULES CONCERNING THE
ORGANISATION OF THE ITALIAN REPUBLIC Title IV The Judiciary Section I Jurisdictional Organisation |
PARTE SECONDA ORDINAMENTO DELLA REPUBBLICA Titolo IV La Magistratura Sezione I Ordinamento
giurisdizionale |
|
Article
101 [Judicial Power] (1)Justice is rendered in the name of the people. (2)Judges are subject only to the law. |
Articolo
101 (1)La giustizia è amministrata in nome del popolo. (2)I giudici sono soggetti soltanto alla legge. |
|
Article
102 [Judges] (1)The duties of the judiciary are carried out by permanent judges
appointed and governed according to the provisions laid down in the statutes
concerning the Judiciary. (2)No special judges may be appointed, but specialised sections may be
set up and attached to the normal judicial organs for dealing with specific
matters, and properly qualified citizens who are not members of the judiciary
may participate in them. (3)The law lays down the reasons and the manner in which private persons
participate directly in the administration of Justice. |
Articolo
102 (1)La funzione giurisdizionale è esercitata da magistrati ordinari
istituiti e regolati dalle norme sull’ordinamento giudiziario. (2)Non possono essere istituiti giudici straordinari o giudici speciali.
Possono soltanto istituirsi presso gli organi giudiziari ordinari sezioni
specializzate per determinate materie, anche con la partecipazione di
cittadini idonei estranei alla magistratura. (3)La legge regola i casi e le forme della partecipazione diretta del
popolo all’amministrazione della giustizia. |
|
Article
103 [Council of State, Court of Accounts, Military Tribunals] (1)The Council of State and other jurisdictions concerned with
administrative justice safeguard the legitimate interests of the citizens against
public administration; in particular matters, provided for by law, they
decide also upon subjective rights. (2)The Court of Accounts has jurisdiction over matters of public accounts
and such other questions as are specified by law. (3)Military Tribunals in wartime have jurisdiction as authorised by law.
In peacetime their jurisdiction is limited to military offences committed by
members of the Army. |
Articolo
103 (1)Il Consiglio di Stato e gli altri organi di giustizia amministrativa
hanno giurisdizione per la tutela nei confronti della pubblica
amministrazione degli interessi legittimi e, in particolari materie indicate
dalla legge, anche dei diritti soggettivi. (2)La Corte dei conti ha giurisdizione nelle materie di contabilità pubblica
e nelle altre specificate dalla legge. (3)I tribunali militari in tempo di guerra hanno la giurisdizione
stabilita dalla legge. In tempo di pace hanno giurisdizione soltanto per i
reati militari commessi da appartenenti alle Forze armate. |
|
Article
104 [Independent Judiciary] (1)The Judiciary is an autonomous body. It is not subject to any other
power of the State. (2)The President of the Republic is Chairman of the High Council for the
Judiciary. (3)The Chief Justice of the Supreme Court of Cassation and the Chief
Public Prosecutor of the same Court are ipso
jure members of it. (4)As for the other members, two-thirds of them are elected by all regular
judges of different categories, and one-third by Parliament in joint session,
selection being made among professors of law faculties and lawyers of at
least fifteen years standing. (5)The Council elects an Assistant Chairman from among the members elected
by Parliament. (6)The elected members hold office for four years and are not immediately
re-eligible. (7)While they are in office they may not be registered on the Rolls of
the legal profession, nor be members either of Parliament or of a Regional
Council. |
Articolo
104 (1)La magistratura costituisce un ordine autonomo e indipendente da ogni
altro potere. (2)Il Consiglio superiore della magistratura è presieduto dal Presidente
della Repubblica. (3)Ne fanno parte di diritto il primo presidente e il procuratore
generale della Corte di cassazione. (4)Gli altri componenti sono eletti per due terzi da tutti i magistrati
ordinari tra gli appartenenti alle varie categorie, e per un terzo dal
Parlamento in seduta comune tra professori ordinari di università in materie
giuridiche ed avvocati dopo quindici anni di esercizio. (5)Il Consiglio elegge un vicepresidente fra i componenti designati dal
Parlamento. (6)I membri elettivi del Consiglio durano in carica quattro anni e non
sono immediatamente rieleggibili. (7)Non possono, finché sono in carica, essere iscritti negli albi
professionali, né far parte del Parlamento o di un Consiglio regionale. |
|
Article
105 [High Council for the Judiciary] According
to the provisions of the statutes governing the Judiciary, the High Council
for the Judiciary is entrusted with the appointment, assignment, transfer,
promotion, and disciplinary measures concerning Judges and Public
Prosecutors. |
Articolo 105 Spettano al
Consiglio superiore della magistratura, secondo le norme dell’ordinamento
giudiziario, le assunzioni, le assegnazioni ed i trasferimenti, le promozioni
e i provvedimenti disciplinari nei riguardi dei magistrati. |
|
Article
106 [Qualification] (1)The selection of Judges and Public Prosecutors is made through a
competitive examination. (2)Statutes concerning the Judiciary may provide for the possibility for
honorary magistrates to be appointed, even by election, to perform all the
duties attributed to individual Judges. (3)On the proposal of the High Council for the Judiciary, law professors
and lawyers of at least fifteen years standing and registered in the special
Rolls entitling them to practice in the senior courts may be appointed as
Justices of the Supreme Court of Cassation for exceptional merits. |
Articolo
106 (1)Le nomine dei magistrati hanno luogo per concorso. (2)La legge sull’ordinamento giudiziario può ammettere la nomina, anche
elettiva, di magistrati onorari per tutte le funzioni attribuite a giudici
singoli. (3)Su designazione del Consiglio superiore della magistratura possono
essere chiamati all’ufficio di consiglieri di cassazione, per meriti insigni,
professori ordinari di università in materie giuridiche e avvocati che
abbiano quindici anni d’esercizio e siano iscritti negli albi speciali per le
giurisdizioni superiori. |
|
Article
107 [Disciplinary Measures] (1)Judges cannot be removed from office. They may not be dismissed or suspended
from their duties, nor transferred to other courts or duties, save by a
decision of the High Council for the Judiciary taken for reasons and with
guarantees for their defence laid down by the statutes concerning the
Judiciary or with their own consent. (2)The Minister of Justice is entitled to start disciplinary action. (3)Judges differ from one another only on account of their different
functions. (4)The Public Prosecutor is safeguarded by the guarantees laid down in
the statutes concerning the Judiciary. |
Articolo
107 (1)I magistrati sono inamovibili. Non possono essere dispensati o
sospesi dal servizio né destinati ad altre sedi o funzioni se non in seguito
a decisione del Consiglio superiore della magistratura, adottata o per i
motivi e con le garanzie di difesa stabilite dall’ordinamento giudiziario o
con il loro consenso. (2)Il Ministro della giustizia ha facoltà di promuovere l’azione
disciplinare. (3)I magistrati si distinguono fra loro soltanto per diversità di
funzioni. (4)Il pubblico ministero gode delle garanzie stabilite nei suoi riguardi
dalle norme sull’ordinamento giudiziario. |
|
Article
108 [Court Structure] (1)The provisions governing the Judiciary as well as every judicial
office are established by statutes. (2)The law ensures the independence of the judges of special Courts, of
Public Prosecutors attached to these Courts, as well as of other persons
taking part in the administration of justice. |
Articolo
108 (1)Le norme sull’ordinamento giudiziario e su ogni magistratura sono
stabilite con legge. (2)La legge assicura l’indipendenza dei giudici delle giurisdizioni
speciali, del pubblico ministero presso di esse, e degli estranei che
partecipano all’amministrazione della giustizia. |
|
Article
109 [Judicial Police] The
Judicial Police are at the direct disposal of the Judiciary. |
Articolo 109 L’autorità giudiziaria dispone direttamente della
polizia giudiziaria. |
|
Article
110 [Minister of Justice] Without
prejudice to the competence of the High Council for the Judiciary, the
organization and operation of services concerning the administration of
justice are entrusted to the Minister of Justice. |
Articolo 110 Ferme le competenze del Consiglio superiore della
magistratura, spettano al Ministro della giustizia l’organizzazione e il
funzionamento dei servizi relativi alla giustizia. |
[1] “There is
no…freedom if the power to judge is not separate from the legal and executive
powers. If it were joined to legislative power, power over the life and liberty
of citizens would be arbitrary, for the judge would be the legislator. If it
were joined to the executive power, the judge would have the power of a tyrant.
All would be lost if the same man, or the same body of rulers, nobles, or
people exercised all three powers: that of making the laws, that of executing
public resolutions and that of judging the crimes or disputes of individuals.” (Montesquieu, De l’esprit des lois, Genève, 1748,
Book XI, Chapter VI). On the independence of the judiciary and the separation
of powers, see Mortara, Istituzioni di ordinamento giudiziario, Florence,
1890, p. 11-21; Ammatuna, Calamandrei,
Candian et al., Per l’ordine giudiziario, Milan, 1946; Kelsen, General Theory of Law and State, Harvard,
1945, translated into Italian under the title Teoria generale del diritto e
dello stato, Milano, 1952, p. 274-288; Barak,
Judicial Discretion, translated into
Italian under the title La
discrezionalità del giudice, Milan, 1995, p. 189-215; Oberto, Les garanties de l’impartialité des juges et de l’indépendance de la
justice, in Le rôle du juge dans une
société démocratique, Strasbourg, 1996, p. 15-230; Rodriguez-Arribas, Sgroi, Abravanel, et al., L’independenza della giustizia, oggi. Judicial Independence, Today,
Liber amicorum in onore di Giovanni E. Longo, Milan, 1999 (see in
particular Abravanel’s essay, Essai sur le “pouvoir du juge”, p. 1-22); Oberto,
Die Sicherung der richterlichen Unabhängigkeit in Italien unter besonderer
Berücksichtigung des Consiglio Superiore della Magistratura und
einer einheitlichen Besoldung aller Richter (the article has been available
since 23 October 2002 on the following web page: https://www.giacomooberto.com/wien/vortrag.htm).
[2] Oberto, Les garanties de l’impartialité des juges et de l’indépendance de la
justice, op. cit.
[3] Gorla, Della posizione costituzionale dell’ordinamento giudiziario. Per
l’autonomia della magistratura, in Ammatuna,
Calamandrei, Candian, et. al., Per
l’ordine giudiziario, op. cit., p. 47: “The judge cannot be placed on the
same level as other public servants. Nor, in a misguided spirit of egalitarianism and of levelling down of
the best and the most responsible, may other public servants aspire to be
compared with the judge. The judge is, or should be, by virtue of his very
functions, placed above the entire scale of political values, at least in a
society that seeks to apply its legal system correctly, and not on the basis of
the results of individual cases, which constitutes abuse. Such a levelling down
would destroy the very basis of the legal system, inasmuch as it would fail to
recognise the dignity of one who personifies the highest requirements of the
law, as long as, in the constitutions of the civil population, he directly personifies one of the
constitutional organs (which is not the case with ordinary public servants).
Judges should be regarded as being set apart from the ordinary run of public
servants because they are not in reality dependants of the state but are
themselves the state in one of its constitutional organs; they are the living
symbol, not of the ‘dependent’ public servant, but of autonomy, of the exercise
of personal rights, and their very life should be autonomy in every sense of
the word.”
[4] See on this point Bonomo, l’indipendenza “interna” della magistratura, in Rodriguez-Arribas, Sgroi, Abravanel, et al., L’indipendenza della giustizia,
oggi, Judicial Independence, Today, Liber amicorum in onore di Giovanni E.
Longo, op. cit., p. 55-59. See
also Kelsen’s opinion, according to which it is impossible to apply to judges
the hierarchical order which is typical of administrative bodies (Kelsen, Teoria generale del diritto e
dello stato, cit., p. 280).
[5] I am indebted for these
observations to Bruti Liberati, Le rôle du Conseil Supérieur de la
Magistrature comme garant de l’indépendance de la magistrature et dans
l’organisation des juridictions (text sent in digital version by its
author).
[6] For a comparative study of the systems of
recruitment, appointment and training of judges in the countries belonging to
the International Association of Judges see International Association
of Judges
- “Justice in the World” Foundation,
Traité d’organisation judiciaire comparée,
I, Zurich-Brussels, 1999. On this topic see also Borgna and Cassano, Il giudice e
il principe. Magistratura e potere politico in Italia e in Europa, Rome,
1997, p. 107 et seq.; Oberto, Verardi and Viazzi, Il
reclutamento e la formazione professionale dei magistrati in Italia e in Europa,
in Dogliotti, Figone, Oberto,
et al., L’esame di uditore giudiziario, Milan,
1997, p. 41 et. seq.; Oberto,
Recrutement et formation des magistrats en Europe : une étude comparative,
Strasbourg, 2003; Id., La formazione dei magistrati alla luce dei
principi internazionali e dei profili di diritto comparato, Padova, 2008.
On the system of recruitment of Italian
judges, see Oberto, Recrutement, formation et carrière des
magistrats en Italie. The article has been available since
29 June 1999 on the following web page:
https://www.giacomooberto.com/tbilissi.htm;
Oberto, Recrutement et
formation des magistrats : le système italien dans le cadre des principes
internationaux sur le statut des magistrats et l’indépendance du pouvoir
judiciaire, in Rivista di diritto privato, 2001, p. 717 et seq. (the text has been available
since 29 March 2001 on the following web page: https://www.giacomooberto.com/csm/rapport.htm); Bartole, Per una
valutazione comparatistica dell’ordinamento del potere giudiziario nei paesi
dell’Europa continentale, in Studium
juris, 1996, p. 531 et seq.; Dogliotti,
Figone, Oberto et al., L’esame di uditore giudiziario,
op. cit; Caianiello, Formazione e selezione dei giudici in una
ipotesi comparativa, in Giurisprudenza
italiana, 1998, p. 387 et seq. For an examination of the judiciary systems of Europe see the Council
of Europe publication under the title L’Europe
judiciaire, Strasbourg, 2000 (the book also contains–in relation to some
countries–information on the recruitment and training of judges). Of course,
mention has to be done here also to European
Commission for the Efficiency of Justice (Cepej), Evaluation of European Judicial Systems, available at the following
web site: http://www.coe.int/t/dghl/cooperation/cepej/evaluation/default_en.asp.
[7] Information on the Judicial Appointments
Commission is available on the following web site: http://jac.judiciary.gov.uk; for the
Judicial Study Board see: http://www.jsboard.co.uk/privacy.htm.
[8] For further details on this
topic see Oberto, Recrutement
et formation des magistrats en Europe : une étude comparative, cit.; Id., La formazione dei magistrati alla luce dei principi internazionali e dei
profili di diritto comparato, cit.
[9] For further details on this
topic see Oberto, Recrutement
et formation des magistrats en Europe : une étude comparative, cit.; Id., La
formazione dei magistrati alla luce dei principi internazionali e dei profili
di diritto comparato, cit.
[10] See Oberto,
Recrutement et formation des
magistrats en Europe : une étude comparative, cit.; Id., Les enjeux de la formation des magistrats.
Organisation institutionelle de la formation, in Rivista di diritto privato, 1997, p. 214 - 225 (since 16 March 1997
the article is also available on the following web page: http://giacomooberto.com/enjeux/rapport.htm;
Id., Recrutement,
formation et carrière des magistrats en Italie (the article has been available since 29 June 1999 on
the following web page: https://www.giacomooberto.com/tbilissi.htm).
On the subject of judicial
training in Italy see also Consiglio
Superiore della Magistratura, Il
magistrato; dal reclutamento alla formazione professionale. Esperienze in
Italia e nel mondo, in Quaderni C.S.M.,
Roma, 1982; Viazzi, Il reclutamento e la formazione
professionale dei magistrati: una questione cruciale di politica istituzionale,
in Questione giustizia, 1984, p. 307
et seq. ; Di Federico, Preparazione professionale degli avvocati e dei magistrati: discussione
su una ipotesi di riforma, Padova, 1987; Parziale, Il
reclutamento e la formazione professionale del magistrato, in Documenti giustizia, 1993, p. 1561 et
seq.; Civinini, L’esperienza della formazione permanente nei
lavori del C.S.M., in Documenti giustizia,
1997, c. 2543 et seq.; Verardi,
Il reclutamento e la formazione dei
magistrati e degli avvocati, in Questione
giustizia, 1997, p. 91 et seq.; Oberto, Verardi
and Viazzi, Il reclutamento e la formazione professionale dei magistrati in Italia
e in Europa, in Dogliotti,
Figone, Oberto et al., L’esame
di uditore giudiziario, Milano,
1997, p. 41 et seq.; Oberto,
Les enjeux de la formation des
magistrats, Organisation institutionelle de la formation, op. cit.; Verardi, Spunti per una storia della formazione permanente, paper submitted
to the seminar organised by the High Council for the Judiciary of Italy on the
theme “Training the Trainers” (formazione dei formatori), Rome, 21-23
June 1999; Verardi, Il CSM e la formazione dei magistrati: verso
una scuola o un mero servizio di aggiornamento professionale?, in Questione giustizia, 1999, No. 2.
[11] For further details on this
topic see Oberto, Recrutement
et formation des magistrats en Europe : une étude comparative, cit.; Id., La
formazione dei magistrati alla luce dei principi internazionali e dei profili
di diritto comparato, cit.
[12] For further details on this topic see Oberto, Recrutement et formation des
magistrats en Europe : une étude comparative, cit.; Id., La formazione dei
magistrati alla luce dei principi internazionali e dei profili di diritto
comparato, cit.
[13] On this topic see Kriegk, La limitation dans le temps aux fonctions des chefs de juridiction: une
entorse aux principes fondamentaux,
in Bulletin of the International
Association of Judges (Belgium), December 1999, p. 10-12.
[14] See Bruti Liberati, Le rôle du Conseil
Supérieur de la Magistrature comme garant de l’indépendance de la magistrature
et dans l’organisation des juridictions, op. cit.; Oberto, L’autonomie de la justice dans
sa gestion: l’expérience italienne
(the article has been available since 9 November 2000 on the following
web page:
[15] For example, to be assigned to a position
in the court of appeal (judge of the court of appeal or deputy principal public
prosecutor at a court of appeal), one must have attained the appeal grade. But
an appeal judge or a judge who has been declared competent to sit in the Court
of Cassation may continue to occupy his current post indefinitely.
[16] Bruti
Liberati, Le rôle du Conseil Supérieur de la
Magistrature comme garant de l’indépendance de la magistrature et dans
l’organisation des juridictions,
op. cit.
[17] See Oberto,
Judicial Independence in Countries of
Central and Eastern Europe: an “Italian” Standpoint, available since 5 May
2000 on the following web page: http://giacomooberto.com/prague/sommario.htm.
[18] The document is available on the following
web page: https://wcd.coe.int/ViewDoc.jsp?Ref=CCJE(2001)OP1&Sector=secDGHL&Language=lanEnglish&Ver=original&BackColorInternet=FEF2E0&BackColorIntranet=FEF2E0&BackColorLogged=c3c3c3.
[19] On the topic of the Italian C.S.M. see Santosuosso, Il Consiglio superiore
della magistratura, Milano, 1958; Bartole,
Autonomia e indipendenza dell’ordine giudiziario, Padova, 1964, p. 4 et
seq.; Volpe, Ordinamento
giudiziario generale, in Enciclopedia del diritto, XXX, Milano,
1980, p. 836 et seq.; Guarnieri, L’indipendenza della magistratura,
Padova, 1981; Bonifacio and
Giacobbe, La magistratura,
in Commentario della costituzione edited by Branca, Bologna, 1986, p. 76
et seq.; Pizzorusso,
L’organizzazione della giustizia in Italia, Torino, 1985, p. 38 et seq.;
G. Zagrebelksy, Il potere
normativo del Consiglio Superiore della Magistratura, in La giustizia
tra diritto e organizzazione, Torino, 1987, p. 183; Di Federico, «Lottizzazioni
correntizie» e «politicizzazione» del C.S.M.: quali rimedi?, in Quaderni
costituzionali, 1990, X, No. 2, p. 279 et seq.; G. Verde, L’amministrazione della giustizia fra Ministro e
Consiglio Superiore, Padova, 1990; Onida,
La posizione costituzionale del Csm e i rapporti con gli altri poteri,
in Magistratura, Csm e principi costituzionali, Bari, p. 17 et seq.; Devoto, Governo autonomo della
magistratura e responsabilità politiche, in Cassazione penale, 1992,
p. 2538 et seq.; G. Ferri, Il
Consiglio Superiore della Magistratura e il suo Presidente, Padova, 1995; Consiglio Superiore della Magistratura, Il
sistema giudiziario italiano, Roma, 2001.
[20] See Art. 16, Statute No. 195 of 24 March 1958.
[21] On the composition
and functioning of the C.S.M. see Statute No. 195 of 24 March 1958, as
well as the Presidential Decree No. 916 of 16 September 1958.
[22] As provided for by
Statute No. 44 of 28 March 2002, which has reduced the total number of the C.S.M.
members from 33 to 27.
[23] See as well
Statute No. 195/1958 and Presidential Decree No. 89 of 12 April 1976, Statute
No. 74 of 12 April 1990 and Presidential Decree No. 132 of 1st June 1990, as
well as the already mentioned Statute No. 44 of 28 March 2002.
[24] One vote was
expressed for one of the candidates competing for the two positions reserved
for judges/prosecutors attached to the Court of Cassation in the national
constituency; one list vote and only one prospective preference were expressed
in the framework of one of the four roughly same‑sized constituencies,
the first two of which elected four members and the third and fourth, five
members each. The four constituencies were set up by assigning the 26 districts
of the Court of Appeal by ballot. The composition of constituencies thus varied
from election to election, and the system prevented the consolidation of
constituencies referring to homogeneous geographical areas. The four main
districts (Milan, Rome, Naples and Palermo) had, however, to belong to different
constituencies.
[25] See in particular
Art. 19 of Statute No. 195/1958 and Art. 4 of the C.S.M.’s internal
regulations.
[26] On this topic see Oberto,
Judicial Ethics in the Italian Legal System, in Rivista di diritto
privato, 1996, p. 393 et seq.; also V. Zagrebelsky, La responsabilità disciplinare dei
magistrati: alcuni aspetti generali, in Rivista di diritto processuale,
1975, p. 439 et seq.; Giuliani and
Picardi, La responsabilità del
giudice dallo Stato liberale allo Stato fascista, in Foro italiano,
1978, IV, c. 213 et seq.; Vigoriti,
Le responsabilità dei giudici, Bologna, 1984, p. 76 et seq.; Pajardi, Deontologia e responsabilità
dei magistrati, Milano, 1985; Pizzorusso,
Izzo and Fiandanese, Lo stato giuridico dei magistrati ordinari,
Roma, 1986, p. 349 et seq.; Mele, La
responsabilità disciplinare dei magistrati, Milano, 1987; Cicala, Il governo della
Magistratura: I profili disciplinari, in Magistratura Indipendente,
1995, No. 3, p. 8; Ricciotti and Mariucci, Deontologia giudiziaria,
I, Padova, 1995.