Judge of the Court of Turin (
AND
STATUS OF JUDGES:
INTERNATIONAL
STANDARDS
AND
THE ITALIAN EXPERIENCE(*)
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Table Of Contents: (I) THE |
THE
OF THE STATE GOVERNED BY RULE OF LAW;
THE BASIC PRINCIPLES IN THEIR INTERNATIONAL CONTEXT
1. The
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
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
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.
As we shall see later, 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 Higher Judicial Council, 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.
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
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 Higher Judicial
Council.
The last
form of independence that I would like to mention here is freedom from
ignorance. “If the judge is ignorant”, said
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.”.
3. The
An
independent judge will not suffice to achieve judicial independence if the
court, the public prosecutor’s department and the authority empowered to turn
the wheels of justice, at least in criminal matters, lack 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].
4. The Internationalisation and Trans-Nationalisation of the Principles
Concerning the
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 Judge 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 resolution on the role of the
judiciary in a state governed by rule of law, adopted in Warsaw on 4 April 1995
by the ministers participating in the Round Table of Ministers of Justice of
the countries of Central and Eastern Europe;
- The European Charter on the status
of judges, approved by the Council of Europe in
- The Universal Charter of the Judge,
unanimously approved by the Central Committee of the International Association
of Judges at its meeting in Taipeh (
- 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 200 (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.”).
Among the
Basic Principles on the
“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
5. Internationalisation
and Trans-Nationalisation of Principles Governing the
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 Higher Judicial Council 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 Higher Judicial Council), 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
6. The
independence of the Judiciary in the Countries of Central and
If we now take a look, from this
standpoint, at the development of the law in the former communist countries, we
are bound to observe that the transition to democratic government has not
always involved full acceptance of Montesquieu’s doctrine on the separation of
powers. Unfortunately, as a general rule, it must be said that the influence of
the executive authorities in that part of
There is
a somewhat negative factor which I would like to mention, namely the influence
on the Central and Eastern part of
But it is
equally undeniable that all this results in a tendency to transplant judicial
institutions–and, in more general terms, a certain type of mentality–into a
completely different legal environment. I would go as far as to say–at the risk
of being blunt–that the question whether appointing judges is in the hands of
the Lord Chancellor or of the
Government of Her Majesty the Queen of England, by the Government of the United
States or of the President of the United States, does not give rise to any
concern within those systems (although the problems arising in the last U.S.A.
election campaign between the two candidates for the White House, Mr Bush
and Mr Gore, gives a clear indication of how crucial an issue the reliability
of a judicial system can be where the members are appointed by political
parties). The same is true of the lack of an institution such as the Higher
Judicial Council within the Common Law systems.
But we must never forget that the
Anglo-Saxon systems–and before them, Anglo-Saxon culture–are historically based
on a deeply entrenched and age-old respect for the judiciary, to the point
where a Higher Council could be seen as a threat to, rather than a bastion of,
the independence of the judiciary.
This is
absolutely not true of Southern Europe (of which
7. The Internationalisation and Trans-Nationalisation
of Principles Governing the
There
the internationalisation and trans-nationalisation of the principles governing
the independence of the judiciary are concerned, the International Association
of Judges is playing an ever-increasing role.
I
would simply say in this regard that the International Association of Judges
(IAJ), of which I have the honour to be one of Deputy Secretaries General, was
founded in 1953, just after the Second World War, to bring about a better
understanding of the judicial systems of member countries. At present it
includes the representatives of sixty member states. The IAJ is a
non-governmental organisation, membership of which is open not to individuals,
but to national associations of judges. More precisely, associations belonging
to it must be judges’ associations that have been freely formed and which
represent the judiciary of their country. Furthermore, the domestic legal systems
of the member countries must guarantee real independence of the judiciary.
The main purpose of the IAJ is to reinforce
the independence of the judiciary as an essential attribute of the judicial
function, together with the protection of the constitutional and moral status
of the judiciary and the guarantee of fundamental rights and freedoms.
The IAJ is governed by its Central Council,
composed of representatives of the member associations, and also by the
Executive Committee, which is the administrative organ under the leadership of
a President who is elected every two years, as are the members of the Executive
Committee, consisting of the president, six vice-presidents and, for a period
of two years, the immediate past president.
The
Association has four Study Commissions whose task it is to study a different
topic each year in various fields:
-
The first is engaged in the study of the status of judges, the independence of
the judiciary, judicial administration and the protection of individual freedoms.
-
The second commission is involved in the study of civil law and procedure;
-
The third commission is engaged in the study of criminal law and procedure;
-
The fourth commission is involved in the study of public and social law.
At
meetings and congresses, the member countries try to gain a better knowledge of
the country where the conference is being held, of its legal system, and of the
problems encountered by its judges. Petitions and recommendations are produced
at the conclusion of each congress.
Within
the IAJ there are four Regional Groups whose aim is to monitor closely specific
questions relating to the judiciary in different parts of the world:
-
the European Association of Judges (EAJ);
-
the Ibero-American Group;
-
the African Group
-
the “ANAO” (Asian, North American and Oceanian) Group.
INTERNATIONAL STANDARDS AND THE
ITALIAN EXPERIENCE
ON SELECTION, TRAINING AND CAREER OF
JUDGES
8. The
Selection of Judges in Recommendation No. R (94) 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
Section 9 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, Principle
I-2.c. of the recommendation shows 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 the first part of the said
Principle I-2.c.: “The authority
taking the decision on the selection and career of judges should be independent
of the government and the administration. In order to safeguard its
independence, rules should ensure that, for instance, its members are selected
by the judiciary and that the authority decides itself on its procedural
rules.”
The second part of Principle I-2.c.
is, by contrast, clearly conceived as an exception to the rule of the first
sub-paragraph. That is to say, the recommendation appears to view as
exceptional a country where “the constitutional or legal provisions and
traditions allow judges to be appointed by the government”. 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 (see supra,
Section 6)–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.
While it is true that Principle I-2.c.
tries to suggest, in its second sub-paragraph, some expedients aimed at
limiting the discretionary power of the executive (or legislative) authorities–this
being particularly the case, for example, with the creation of “a special
independent and competent body to give the government advice which it follows
in practice”–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.
9. The
Selection of Judges in the Different European Legal Systems.
It would be impossible to summarise here
the diversity of methods adopted throughout
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 Higher
Judicial Council (such is the case, for example, in Italy), 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
newly-established Commission for Judicial Appointments–which provides, for the
first time in the U.K., an independent mechanism for applicants for judicial
office who feel that their candidacy has not been considered fairly–would
appear to open 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 already mentioned 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 (see supra,
Section 6).
In the countries of the former communist
bloc the situation seems somewhat complex and difficult to grasp.
As I have already observed (see Section
6), 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 Higher Judicial Council 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
10. The Selection of Judges in the Italian Legal System.
Access to the profession of judge and
public prosecutor in
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 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, by which, instead, the figure of an “external
examiner” was constituted to expedite the correction procedure of the tests.
The computerised preliminary tests will be definitely set aside as envisaged
when the regulation implementing the rules on external examiners is adopted.
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 123 ter of the statute regulating the judicial system).
The competitive examination for
judges/prosecutors is published by the Minister of Justice, pursuant to a decision
of the Higher Judicial Council, which sets the number of positions. The
examining committee, appointed by the Higher Council, is chaired by a
judge/prosecutor with the rank and function of Court of Cassation judge/prosecutor.
It consists further of twenty‑two judges/prosecutors with the rank no
lower than that of an appeal court judge/prosecutor and eight university law
professors. The total number of the members of this panel is thus of 32. 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 Higher Council[9].
11. 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
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
12. 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 Higher
Judicial Council 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. (...)”.
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 Higher
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 Higher Council 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].
13. Initial Training for the Judiciary in
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 Presidential Decree of 17th July 1998).
The length of the training is decided
by the Higher Council and is normally not less than twelve 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.
On
the specific issue of initial training, the Higher Council’s activity in
organising study meetings reserved for trainee judges and prosecutors should
also be mentioned. The judicial councils and the district reference entities
in charge of local training are also involved in this activity.
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 Presidential Decree
of 1998 each trainee must keep, in a sort of
“exercise-book”, a detailed record of all the activities carried out during
each week of training. This document has to be signed by the judges/prosecutors
responsible for each relevant period of training. At the end of the period of training the book must be
given to the “collaborator” judges, who will draft a report on each trainee.
Files and reports are then transmitted to the Higher Council, which is
responsible for the final assessment affecting the future of the trainees.
14. On-the-Job
Training for the Judiciary in
As far as the on-the-job training is
concerned, once again it has to be stressed that
As for the “offer” of initiatives organised during
these years, we can remark that they are yearly in the number of 40-50. Each
training course is usually addressed to about 100 judges/prosecutors.
Attendance to these conferences has been recently opened also to some lawyers,
upon invitation by the Higher Council. Subjects dealt with are 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 Higher Council is also
diversified as regards the training methods. Some courses are organised in a
traditional way, with rapporteurs delivering speeches, followed by a public
discussion. Some other courses follow patterns which are more “agile”: so, for
instance, during the “workshops on professional practice” the participants use
to immediately pass to a system of discussion and exchange of experiences.
A
quite new “frontier” of judicial training is represented by the so called
“local” training, upon which the Higher Council adopted a resolution on 26
November 1998. The aim of this initiative is 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
15. The Career of Judges in Recommendation No. R (94) 12 and the Italian
Experience.
As far as the career of judges is
concerned, the already mentioned Recommendation No. R (94) 12 of the Council of Europe
expresses a very clear preference for a system based on merit: “All decisions
concerning the professional career of judges should be based on objective
criteria, and the selection and career of judges should be based on merit,
having regard to qualifications, integrity, ability and efficiency. The
authority taking the decision on the selection and career of judges should be
independent of the government and the administration.” 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 (see infra Section 16). 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 (see supra, Sections 1, 2 and 8). 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 may have come for a pyramid-shaped
structure in the judiciary.
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
The
seniority required for appointment to the grade of judge of the court is two
years following appointment to the position of trainee judge. After eleven
years in service (thirteen counting from appointment to the position of
trainee), judges of the court may be appointed to the grade of judge of the
Court of Appeal. The seniority required for a declaration of aptitude for the
grade of judge of the Court of Cassation is seven years from appointment as
judge of the Court of Appeal. After a further eight years, judges can be
declared competent to exercise higher administrative functions (heads of higher
courts). All promotion takes place, once the necessary seniority has been
attained, by decision of the Higher Judicial Council, 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 declared unsuitable will be
subjected to a further assessment two years later.
This
system, set up between 1966 and 1973, 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 Higher Judicial
Council. 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[16].
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[17].
The conferring on the Higher Judicial
Council 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.
16.
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 Higher Judicial
Council 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 system do not have any objective legal criteria in this regard (such
is the case in, for example,
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 the Lord Chancellor follows well publicised criteria, while in
Scotland the executive recently published a “consultation document relative to
judicial appointments.”
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
INTERNATIONAL STANDARDS AND THE
ITALIAN EXPERIENCE
ON THE STATUS OF JUDGES:
THE PROTECTION OF JUDICIAL
THROUGH A HIGHER JUDICIAL COUNCIL
17.
Irremovability of Judges in Recommendation No. R (94) 12 and
in the Legal Systems of European Countries.
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 Principle I 3 of the above
mentioned Recommendation No. R (94) 12 states that “Judges, whether appointed
or elected, shall have guaranteed tenure until a mandatory retirement age or
the expiry of their term of office.”. The rule neither recognises nor allows
for any exception, either in the event of changes in the jurisdiction of the
courts or in the event of a disciplinary offence (see Principle VI 1.b., which makes provision only for
“moving the judge to other judicial tasks within
the court”).
No exception is made either for the
situation which in
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 infra, 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
One of the most worrying situations,
however, concerns the
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
In this framework let me recall the final report issued on the topic of
judicial independence by the Consultative Council of European Judges of the
Council of Europe on 21-23 November 2001[20]:
“50. Certain countries make some appointments for a
limited period of years (e.g. in the case of the
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
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).”.
18.
Protection of Judges Against all Undue Influence in
Recommendation No. R (94) 12. The Question of Judicial Immunity.
Principle I 2.d. of the Recommendation No. R (94) 12 of the Council of Europe
deals with the problem of protecting the judge against “restriction, improper
influence, inducements, pressures, threats or interference, direct or indirect,
from any quarter or for any reason”. For an efficient implementation of that
rule, the text further stipulates that: “The law should provide for sanctions
against persons seeking to influence judges in any such manner.”. This rule
should be seen in conjunction with Principle II - the authority of judges,
which stipulates that: “1. All persons connected with a case, including state
bodies or their representatives, should be subject to the authority of the
judge. 2. 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.”.
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).
We should also see in a very positive light the final sentence of
Principle I-2.d, according to which: “Judges should not be obliged to report on
the merits of their cases to anyone outside the judiciary.”.
There might also be some risk of
influence where the allocation and withdrawal of cases is concerned.
In this connection, Principle I-2.e. deals with the distribution of
cases, which “should not be influenced by the wishes of any party to a case, or
any person concerned with the results of the case.” It appears excessive,
however, to exclude any system of distribution other than one based on a
“drawing of lots or a system for automatic distribution according to
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.
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.
19. The Higher Judicial Council: 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 Higher Judicial Council.
According to western European
standards, a Higher Judicial 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 Higher 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 (94)
12 of the Council of Europe, whose Principle I 2.c. provides for that “The
authority taking the decision on the selection and career of judges should be
independent of the government and the administration. In order to safeguard its
independence, rules should ensure that, for instance, its members are selected
by the judiciary and that the authority decides itself on its procedural
rules.” Principle VI 3. of the same document states that “Where measures under
paragraphs 1 and 2 of this article need to be taken, states should consider
setting up, by law, a special competent body which has as its task to apply any
disciplinary sanctions and measures, where they are not dealt with by a court,
and whose decisions shall be controlled by a superior judicial organ, or which
is a superior judicial organ itself. ”.
Much more than a mere hint 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
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).
20. The Higher Judicial Council: 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 Higher 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.” ([21]).
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 ([22]). 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 Higher Judicial Council (Consiglio Superiore della Magistratura – C.S.M.) is therefore the self governing body of the ordinary judiciary ([23]).
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 ([24])
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 ([25]).
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
([26]).
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 ([27]).
21. The Higher Judicial Council: The Italian Experience (Constitutional
Position and Activities).
As far as the C.S.M.’s position is concerned, the
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. 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. Rules concerning judicial
liability are provided for by Statutes as well as by the C.S.M. case law
([28]).
The Council plays as well a relevant
role in the field of judicial selection and training, as in
22. Excerpts from the Italian Constitution (Provisions Concerning the
Judiciary).
|
PART II RULES
CONCERNING THE ORGANISATION OF THE Title IV The
Judiciary Section I Jurisdictional Organisation |
PARTE SECONDA ORDINAMENTO DELLA REPUBBLICA Titolo IV 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) (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
Higher 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 [Higher Council for the Judiciary] According to the provisions of the statutes governing
the Judiciary, the Higher 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 Higher 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 Higher 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
Higher 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. |
*
Paper submitted to the Seminar organised by the Council of Court Chairmen of the
Republic of Armenia, ABA/CEELI in Armenia and the Council of Europe on the
subject: “The Status of Judges in the Republic of Armenia”, Yerevan, 3 December
2002. This work has been available since 12 November 2002 on the following web
page:
[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
[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 (the book is to be published soon by Editions
du Conseil de l’Europe, Strasbourg, 2002).
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. See also the
publications cited infra, at note 10.
For an examination of the judiciary systems of Europe see the Council of Europe
publication under the title L’Europe
judiciaire,
[7]
Information on this subject available on the following web site: http://www.lcd.gov.uk/deprep0102/a05.htm#h2001.
[8] For further
details on this topic see Oberto,
Recrutement et formation des magistrats en
[9] For further details on this topic see Oberto,
Recrutement et formation des magistrats en
[10] See Oberto, Recrutement et formation des magistrats en
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 Higher Judicial
Council 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
[12] For further details on this topic see Oberto,
Recrutement et formation des magistrats en
[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 (
[14] See Bruti Liberati, Le rôle du Conseil
Supérieur de
[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] Following a
judgment of the
[17] Bruti Liberati, Le rôle du Conseil Supérieur de
[18] It is for this
reason that the decision is taken not by the disciplinary tribunal, but by the
plenary assembly of the Higher Judicial Council acting on a proposal from a
commission whose task it is to investigate the matter and hear submissions from
the judge concerned.
[19] See Oberto, Judicial
[20] The
document is available on the following web page: http://www.coe.int/T/E/Legal_Affairs/Legal_co-operation/Legal_professionals/Judges/CCJE/ccje_2001_op%20n%B01e%20-%20Opinion%20independence.asp#TopOfPage.
[21] 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.
[22] See Art. 16, Statute No. 195 of
24 March 1958.
[23] 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.
[24] 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.
[25] 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.
[26] 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 (
[27] See in particular Art. 19 of Statute No. 195/1958 and Art. 4 of the C.S.M.’s
internal regulations.
[28] On this topic see Oberto, Judicial Ethics in the
Italian Legal System, in Rivista di diritto privato, 1996, p. 393 et
seq.; also 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, p. 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.