Judiciary (Italy)
The judiciary in Italy , the judiciary , is a third power that is strictly separated from the other powers. The Italian judiciary is largely formally independent. The judges are only bound by the law. As a parliamentary system of government, the Italian Republic has an intertwining of powers between the executive and legislative branches .
In contrast to many legal systems, the Italian public prosecutor ( Pubblico ministero ) is not bound by the instructions of the executive and is not subordinate to the Ministry of Justice . Judges and public prosecutors are referred to as magistratura , which in the German language has no direct equivalent; Common terms for this are judge, jurisdiction and judiciary. A magistrato can therefore be both a judge and a prosecutor. The terms correspond to those used in South Tyrol to describe the legal doctrine of the Italian Republic in German.
Organization, independence and self-administration
In contrast to the Federal Republic of Germany , whose member states maintain their own judicial organs due to their state quality, in Italy (similar to Austria) it is incumbent on the regional authority state to give the judicial system the legal basis and to organize and maintain it. The constitutional basis for this is Art. 117 (2) (l), which provides that the jurisdiction, procedural rules, civil and criminal law and administrative jurisdiction fall within the sole legislative power of the state. Courts of the regions or and provinces are therefore not provided. This is a typical feature of a unitary state.
The supreme principle of the judiciary is Article 101 of the Constitution:
"The judges are only subject to the law."
First of all, this implies the personal independence of each judge; no other body has to influence their decisions. Conversely, however, the judges have to adhere strictly to the law; If they find a norm to be inexpedient or unconstitutional, they still have to apply it, provided that they do not apply to the Constitutional Court (in the case of suspected unconstitutionality) .
On the other hand, this principle also entails organizational independence in its entirety. This is specified in Art. 104, Paragraph 1 of the Constitution, which stipulates that the jurisdiction is an independent and independent class. The expression of this autonomy in the area of ordinary jurisdiction is the so-called “Supreme Judicial Council” or the “Supreme Judicial Council” ( Consiglio Superiore della Magistratura , CSM). It is responsible for all essential decisions necessary for the internal organization of the judiciary, such as recruitment, assignments, transfers, promotions and disciplinary measures. The Justice Minister is only entitled to initiate disciplinary proceedings; furthermore, he is only responsible for the establishment and operation of the administration of justice.
The Supreme Judicial Council consists of 24 elected members: two thirds of these are elected by the judiciary, one third by parliament in joint session, the remaining three members are by law: the President of the Republic , who presides over the council entitled to the First President of the Court of Cassation and the Attorney General of the Court of Cassation .
In addition to the principle of independence, judges also apply the principle of impartiality, impartiality, irremovability and non-transferability.
There is a similar self-governing body for administrative jurisdiction; analogous to the CSM, it is referred to as the “Council of Administrative Judiciary ” ( Consiglio di giustizia amministrativa ).
The administration of justice in the area of civil and criminal law is the responsibility of ordinary jurisdiction. The constitution forbids the establishment of exceptional and special courts; however, on the one hand, special departments for certain subject areas, such as B. labor law, be established; on the other hand, there is an abundance of other courts, most prominently the administrative courts, which are referred to as "special courts".
Although the Constitutional Court exercises judicial power in the area of state, constitutional and international law, it is not part of the judiciary, but forms a separate constitutional body.
Appointment of judges and prosecutors
According to the constitution, the appointment must be made through competition. The entrance examination, which takes place every two years and during which only between 300 and 400 positions are advertised throughout Italy, is the same for judges and public prosecutors. Then they can choose one of the two career paths. However, there is always the possibility of changing to another office, even if the hurdles have been tightened increasingly.
Special admission requirements apply to the Court of Cassation. Since some fundamental judgments are made here, which can have great scientific consequences in legal teaching and maintenance, the Supreme Court Council is entitled, due to outstanding services, to full university professors of law and lawyers who have at least fifteen years of professional experience and are included in the special lists of lawyers for the higher jurisdiction are registered to be appointed members of the Court of Cassation.
Ordinary jurisdiction
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Court organization in Italy:
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The ordinary jurisdiction is responsible for civil and criminal disputes. Labor law issues are also brought before these courts. There are a total of 8,722 ordinary judges and public prosecutors, and an additional 7,351 positions are filled by honorary judges.
The extremely long duration of the proceedings is considered to be the greatest problem of ordinary jurisdiction. In criminal proceedings, the long procedures mean that numerous violations and offenses are statute-barred because the deadlines are neither interrupted nor suspended while the process is ongoing. In civil proceedings, the situation is even more tense: Ordinary first instance proceedings take an average of 980 days, and another 1405 days are due for appeal. According to the World Bank, Italy ranks 158th worldwide in terms of the speed and efficiency of decisions on contractual disputes between companies, behind most Third World countries. The labor law proceedings are progressing a little faster: 760 days in the first instance, 814 in the second instance. Traffic accidents linger 500 days before the justice of the peace.
Justice of the Peace
The “Friedensgericht” ( Giudice di pace ) are the lowest instance of ordinary jurisdiction. You decide in the first instance about litigation with a low value in dispute. However, it also has certain criminal functions that raise some constitutional questions: if a criminal act is present, it is not necessarily forced to convict it, but can refrain from doing so if the act is particularly minor and the degree of guilt does not justify an indictment , and declare the criminal act extinguished. According to Article 112 of the Constitution, however, public prosecutors are obliged to exercise their right to prosecute in the event of a criminal offense. By means of this regulation, Italy has taken a path that is typical of modern constitutional states; However, as I said, this is fundamentally contrary to the constitution.
Furthermore, the principle “jurisdiction is a matter for the state” does not apply indefinitely; The President of the Trentino-Alto Adige Region has the power to appoint, dismiss and remove the Justice of the Peace from office, which is possible because of a delegation by the President of the Republic. The state parliaments of the province of Bolzano and Trento are also entitled to appoint their own justice of the peace by means of state law. However, it is a one-off special regulation in favor of the autonomous provinces.
The peace tribunal consists of honorary judges, who do not have to have passed the judge's examination. You judge as a single judge.
The regional court
Regional court serves as a translation of the Italian tribunale , which actually only means “court” (cf. Tribunal). This is due to the fact that the only official German-language name of an Italian tribunale is that for the province of Bolzano, i.e. the "country" of South Tyrol. In addition, the name is based on the Austrian nomenclature.
In numerous cases it decides as the first instance body, unless the justice of the peace is responsible; in this case it decides in the second instance on judgments which the justice of the peace made as first instance.
It decides as a single judge or as a collegial court and is divided into civil and criminal senates.
The higher regional court
Analogous to the designations in German-speaking countries, the translation "Higher Regional Court" is used for the Italian term " Corte d'appello " (Court of Appeal), in the sense that it is the higher authority of the Regional Court. It always decides as a collegial body and has to rule in the area of civil and criminal law on the contestation of judgments of the regional courts. In all regions with the exception of the Aosta Valley there is at least one higher regional court with its seat in the regional capital. There are even four seats in Sicily: in addition to Palermo, there are also Caltanissetta, Catania and Messina.
The jury
The “Jury Court ” ( Corte d'assise ) is responsible for particularly serious criminal offenses. In addition to professional judges, lay judges also judge. Their judgments can be challenged before the “Appeal Court” ( Corte d'assise d'appello ).
The Court of Cassation
The “Court of Cassation” ( Corte di cassazione ) is the highest judicial body with its seat in Rome and decides in the last instance.
Special jurisdiction
The “Regional Administrative Courts” ( Tribunale Amministrativo Regionale , TAR ) are responsible for administrative matters in the first instance and the “Council of State” ( Consiglio di Stato ), mostly as the second instance (in individual cases also first instance).
The specially established “tax commissions” ( Commissioni tributarie ) judge taxes . These only partly consist of professional judges: lawyers and tax advisors are also used as judges. There are provincial (first instance) and regional tax commissions (second instance).
There is also the “Court of Auditors” ( Corte dei conti ), which plays an important role in matters of pension provision and official liability; the “court for public waters”; the " military courts ".
Individual evidence
- ↑ Supreme Council of Justice: Ordinary judges in Italy
- ^ Supreme Judicial Council: honorary judicial posts in Italy
- ^ World Bank : Doing Business, Enforcing Contracts Index 2011
- ↑ ag / ag2008 / ag2008ministro capp.htm Inauguration of the 2008 judicial year