Giacomo Oberto

 

Judge - Court of Turin (Italy)

Secretary General - International Association of Judges

 

JUDICIAL INDEPENDENCE IN ITS VARIOUS ASPECTS:

INTERNATIONAL BASIC PRINCIPLES

AND THE ITALIAN EXPERIENCE

(Turin – 2013)

 

Summary: (I) THE INDEPENDENCE OF THE JUDICIARY AS ONE OF THE PILLARS OF THE STATE GOVERNED BY RULE OF LAW. THE BASIC PRINCIPLES IN THEIR INTERNATIONAL CONTEXT – 1. The Independence of the Judiciary: Basic Principles. – 2. The Independence of the Judiciary: its Various Forms. – 3. The Independence of the Public Prosecutor’s Department. – 4. The Internationalisation and Trans-Nationalisation of the Principles Concerning the Independence of the Judiciary: Instruments. – 5. The Internationalisation and Trans-Nationalisation of the Principles Concerning the Independence of the Judiciary: Principles and Rules set forth by the Council of Europe. – 6. Internationalisation and Trans-Nationalisation of Principles Governing the Independence of the Judiciary: General Rules. – (II) SELECTION, TRAINING AND CAREER OF JUDGES: INTERNATIONAL STANDARDS AND THE ITALIAN EXPERIENCE – 7. The Selection of Judges in Recommendation No. CM/Rec (2010) 12. – 8. Selection of Judges in the Different European Legal Systems. – 9. The Selection of Judges in the Italian Legal System. – 10. International Standards on Judicial Training. – 11. Right to Judicial Training and Judicial Training Structures. – 12. Initial Training for the Judiciary in Italy. – 13. On-the-Job Training for the Judiciary in Italy. – 14. The Career of Judges in Recommendation No. (2010) 12 and the Italian Experience. – 15. The Career of Judges in the Different European Legal Systems. – (III) THE STATUS OF JUDGES AND THE PROTECTION OF JUDICIAL INDEPENDENCE THROUGH A HIGH COUNCIL FOR THE JUDICIARY: INTERNATIONAL STANDARDS AND THE ITALIAN EXPERIENCE – 16. Irremovability of Judges in Recommendation No. R (2010) 12 and in the Legal Systems of European Countries. – 17. Protection of Judges Against all Undue Influence in Recommendation No. Rec. (2010) 12. The Question of Judicial Immunity. – 18. The High Council for the Judiciary: International Standards. – 19. The High Council for the Judiciary: The Italian Experience (Members and Electoral System). – 20. The High Council for the Judiciary: The Italian Experience (Constitutional Position and Activities). – (IV) JUDICIAL LIABILITIES: INTERNATIONAL STANDARDS AND THE ITALIAN EXPERIENCE – 21. International Standards on Judicial Liabilities. – 22. Breach of Discipline in the Framework of Disciplinary Liability of Judges and Prosecutors in Italy. – 23. Disciplinary Sanctions for Judges and Prosecutors in Italy. – 24. Disciplinary Proceedings for Judges and Prosecutors in Italy. – 25. Civil Liability for Judges and Prosecutors in Italy. – 26. Criminal Liability for Judges and Prosecutors in Italy. – 27. Excerpts from the Italian Constitution (Provisions Concerning the Judiciary).


(I)

THE INDEPENDENCE OF THE JUDICIARY AS ONE OF THE PILLARS

OF THE STATE GOVERNED BY RULE OF LAW.

THE BASIC PRINCIPLES IN THEIR INTERNATIONAL CONTEXT

 

 

1. The Independence of the Judiciary: Basic Principles.

 

The independence of the judiciary is certainly an essential principle which underpins what today is termed the “state governed by rule of law” in accordance with the proposition of the separation of powers, as defined by Montesquieu in the XVIII century. As that great philosopher stated in his work “The Spirit of the Law” (Book XI, §6), “There is no (…) freedom if the power to judge is not separate from the legislative and executive powers.” “All would be lost,” he added, “if the same man, or the same body of rulers, nobles, or people exercised all three powers: that of making the laws, that of executing public resolutions and that of judging the crimes and disputes of individuals.”[1]

The French Declaration of the Rights of Man and of the Citizen of 26 August 1789 (Article 16) proclaimed that: “Any society in which there is no guarantee of rights or clear separation of powers is without a constitution.”

It is for this reason that independence is bestowed on judges purely for the protection of the rights of individuals seeking justice[2]. It is not a judicial privilege. Dependence on political power or hierarchical superiors means peace and the guarantee of a quiet life for judges who adapt themselves to such a role: independence means responsibility, the confrontation of differing points of view, the acceptance of being the subject of public discussion, the challenge of being able to convince not by force of the principle of authority but through rational argument, together with firmness and professional skill.

On the other hand, it is evident that independence requires a separate status for judges that sets them clearly apart from public servants. That most distinguished Italian exponent of comparative law, Gino Gorla, observed as much in the course of the preliminary drafting of the Italian Constitution, which entered into force in 1948: “The judge cannot be placed on the same level as other public servants (…). Judges should be regarded as being set apart from the ordinary run of public servants because they are not, in reality, dependants of the state but are themselves the state in one of its constitutional organs; they are the living symbol, not of the “dependent” public servant, but of autonomy, of the exercise of personal rights, and their very life should be autonomy in every sense of the word.”[3]

The principle of the separation of powers, to which judicial independence is closely linked, is not accepted and understood in the same way in the various legal and court systems that exist in Europe today. Nobody could seriously deny, for example, that the judiciary in the United Kingdom enjoys a situation of total and perfect independence; and yet it is the same system in which for many years the person considered as being Head of the Judiciary, the Lord Chancellor, has been for centuries exercising at the same time the functions of Minister of Justice, Speaker of the House of Lords and the country’s leading judge.

While every legal system recognises, at least in its legislation, the independence of the judiciary in relation to the legislative and executive powers, in practice such independence cannot yet be considered as having been attained satisfactorily and lastingly in every part of our continent. The need to implement measures for guaranteeing the independence of the judiciary raises a very complex range of serious issues relating to widely varying aspects of the status of judges, ranging from their appointment to training, assessment, career, transfer, disciplinary measures, etc. It is therefore against this background that we have to measure the efficiency and relevance of national and international standards in the light of the attempts that have made (more or less openly here and there in Europe) by other state authorities to restrict this fundamental requirement of any society that regards itself as civilised.

 

 

2. The Independence of the Judiciary: its Various Forms.

 

First of all it should be observed that it is not merely the judiciary as a whole that has a problem of autonomy and independence, but each individual judge. It is for this reason that we may talk in terms either of the autonomy and independence of the judiciary, or of the autonomy and independence of judges. Indeed, the systems of the different countries should seek to guarantee not only the independence of the judiciary in relation to other public authorities, but also the independence of the judge in relation to other aspects of economic and social life and even within the judiciary.

       There is in fact more and more discussion of the “internal” independence of the judiciary[4]. Clearly, the application to the judiciary of the hierarchical rules that govern, for example, the organisation of the executive, or certain branches of it (army, local government, police, etc.) would compromise judicial impartiality. One possible solution to this problem might be to transfer the powers that would normally be exercised by the chief executive to another body, such as, for example, a High Council for the Judiciary, which expedient would kill two birds with one stone: it would safeguard the “external” independence of the judiciary (particularly in relation to other public authorities) and it would protect the “internal” independence of the judiciary (particularly in relation to their “superiors”).

       The never-ending problem of the independence of the judiciary in relation to the economic and financial authorities may also be mentioned here. La Fontaine (in The animals sick with the plague) lamented the fact that “You may be great Sir John or simply wretched Jack, and accordingly the court will pronounce you white or black.” Here it will suffice to observe that everywhere, or virtually everywhere, in the world the rules governing the judiciary prohibit judges from exercising activities such as that of entrepreneur, businessman, member of the board of directors of a company, etc. But it is for precisely this reason that judges should be guaranteed adequate remuneration as well as a personal, special (I would go as far as to use the word privileged) status, which would shield them from any outside influence.

       Another form of judicial independence is independence in relation to political parties. Europe finds itself divided on that question; on the one hand, the countries of Central and Eastern Europe, reacting against a tradition that obliged judges to be members of the party in power, totally prohibit judges from belonging to any political party whatsoever; on the other hand, the other systems, and particularly the Common Law and Northern European countries, by contrast prefer to regard the judge as an ordinary citizen who as such should not be deprived of the right to join a political organisation.

       A “compromise” solution is being considered in other countries. In Italy, for example, Article 98 of the Constitution (in force since 1948) envisages the possibility for the ordinary law to set limits on judges’ membership of political parties. Such a law has been passed only in July 2005. On the other side, the “Judicial Code of Ethics” approved by the National Association of Italian Judges in 1994 and reformed in 2010 requires judges belonging to that association (more than 90% of Italian judges) to “avoid any connection with the executive bodies of authorities, parties or companies that might influence them in the exercise of (their) functions or affect (their) image.” In any case, it is clear that merely limiting membership of political parties, or even imposing a total prohibition, is not enough. The thing to avoid–and here there seems to be a general consensus in Europe–is for the judge to be closely and actively involved in political activity.

       In conclusion to this first introductory overview, I should like to mention two completely new forms of independence.

       First, the independence of judges in relation to the media. The tendency for the judge’s activities, particularly in criminal matters, to be given media coverage, has recently assumed worrying proportions more or less throughout the world, but particularly in Western countries: examples are to be seen in a number of prosecutions brought against major political figures in Italy and also France and Spain, or the enormous uproar caused by the publicity given to certain issues (for example those surrounding the cases of the actor O.J. Simpson or the boxer M. Tyson in the United States). The risk remains that the judge may be influenced in his functions by the press, particularly in the case of judges aspiring to a career in politics or even election to the High Council for the Judiciary.

       The last form of independence that I would like to mention here is freedom from ignorance. “If the judge is ignorant,” said La Fontaine (The donkey carrying relics), “it’s the robes that carry respect.” If we want those robes to be worn by a judge who is respected by the people in court, and entirely free in reaching his decision, the judge must have a thorough knowledge of the subject matter with which he is dealing. A well trained judge is a more independent judge.

       On the other hand, we must not forget that training now constitutes a veritable right for a European judge, according to Recommendation No. R (94) 12 of the Committee of Ministers of the Council of Europe on the independence, efficiency and role of judges. Principle III-1.a of that recommendation calls for the “recruiting (of) a sufficient number of judges and providing for appropriate training such as practical training in the courts and, where possible, with other authorities and bodies, before appointment and during their career. Such training should be free of charge to the judge and should in particular concern recent legislation and case-law. Where appropriate, the training should include study visits to European and foreign authorities as well as courts.” Such rule was reinstated in the new version of that document: actually, Recommendation CM/Rec(2010)12 of the Committee of Ministers to member states on judges: independence, efficiency and responsibilities provides for (see Principle 56) that “Judges should be provided with theoretical and practical initial and in-service training, entirely funded by the state. This should include economic, social and cultural issues related to the exercise of judicial functions. The intensity and duration of such training should be determined in the light of previous professional experience.”

 

 

3. The Independence of the Public Prosecutor’s Department.

 

An independent judge will not suffice to achieve judicial independence if the public prosecutor’s department, which is the authority empowered to turn the wheels of justice, at least in criminal matters, lacks independence.

       It is precisely because public prosecutors safeguard the equality of citizens before the law that they must be able to exercise their functions independently of political power. Accordingly, the principle that judges are subject only to the law must equally apply to public prosecutors.

Experience in a number of countries has shown that inquiries into corruption often involve investigation of offences committed by centres of economic, financial and political power. It is imperative, therefore, that the court should be able to carry out its inquiries (and direct the judicial police) in a way that is completely independent of the government. It is of little use guaranteeing the independence of the judiciary if the possibility remains that the executive power can exercise control over prosecutors so as to prevent them from carrying out their inquiries.

The principles of democracy and the equality of citizens before the law require that any abuse of political power be exposed and punished. It is for this reason that even in countries where there is still a connection between the executive authority and the courts, increasing efforts are being made to cut the umbilical cord. It is interesting in this connection to point out that Article 18.2 of the Corpus Juris imposing penal provisions for the protection of the financial interests of the European Union provides that the Public European Ministry “is independent both from the national authorities and the community organs.”[5] Strong stands for the independence of the public prosecutor can be found as well in the documents issued by the Consultative Council of European Prosecutors of the Council of Europe. According to Principle 3. of the “Bordeaux Declaration” “Judges and public prosecutors must both enjoy independence in respect of their functions and also be and appear independent from each other.”

 

 

4. The Internationalisation and Trans-Nationalisation of the Principles Concerning the Independence of the Judiciary: Instruments.

 

The second half of the century that has just ended saw an international awakening to the importance of the independence of the judiciary. This movement began with the Universal Declaration of Human Rights, adopted by the Assembly of the United Nations in 1948, which provides in Article 10 that “in the determination of his civil rights and obligations or of any criminal charge against him” everyone has the right to be judged by “an independent and impartial tribunal”. This same principle was included in the European Convention on Human Rights and Fundamental Freedoms signed in Rome in 1950 (Article 6).

Numerous conferences and congresses organised by international associations and bodies (including, in particular, the International Association of Judges) have devoted efforts to studying the systems guaranteeing the independence of the judiciary. Several binding declarations on this topic are to be found in the documents of international congresses, conferences and seminaries. The models and the law-making principles have begun to circulate throughout Europe and the entire world, with the result that today one can speak of not only international law for the protection of the independence of the judiciary, but also trans-national law on the subject. I would go as far as to say that it is not important that all the relevant instruments do not have binding force (or binding to the same degree): the practical experience of international associations shows, for example, that “private” documents, such as the Universal Charter of the Judges drawn up by the International Association of Judges, have served to persuade the political authorities of certain countries not to implement measures that might have limited the independence of the judiciary.

The most interesting results of this process of internationalisation and trans-nationalisation based on the principles of human rights protection are to be found in the following instruments:

·      The European Convention on Human Rights, 1950, already mentioned;

·      The International Convention on Civil and Political Rights, 1966;

·      The Basic Principles on the independence of the Judiciary drawn up in 1985 by the UNO and the Procedures for their effective implementation (1989);

·      The Statute of the Judge in Europe, drawn up and approved in 1993 by the European Association of Judges - Regional Group of the International Association of Judges;

·      Recommendation No. R (94) 12 of the Committee of Ministers of the Council of Europe to Member States on the independence, efficiency and role of judges;

·      The European Charter on the status of judges, approved by the Council of Europe in Strasbourg, 8-10 July 1998;

·      Universal Charter of the Judges, unanimously approved by the Central Committee of the International Association of Judges at its meeting in Taipei (Taiwan) on 17 November 1999;

·      The European Parliament resolution on the annual report on respect for human rights in the European Union (1998 and 1999) (11350/1999 - C5-0265/1999 - 1999/2001(INI), adopted on 16 March 2000 (which “recommends that Member States guarantee the independence of judges and courts from the executive and ensure that appointments to the judiciary are not made on political grounds”);

·      The “Charter of Fundamental Rights of the European Union” adopted in Nice on 7 December 2000 (which in article 47 - Right to an effective remedy and to a fair trial”, subparagraph 2, stipulates, in accordance with Article 6 of the European Convention for the Protection of Human Rights and Fundamental Freedoms, that “Everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal previously established by law.”).

·      Opinion No 1 (2001) of the Consultative Council of European Judges (CCJE) for the attention of the Committee of Ministers of the Council of Europe on Standards Concerning the Independence of the Judiciary and the Irremovability of Judges.

·      Recommendation CM/Rec(2010)12 of the Committee of Ministers to member states on judges: independence, efficiency and responsibilities.

·      Magna Charta of Judges, approved by the Consultative Council of European Judges (CCJE) in 2010.

 

Among the Basic Principles on the Independence of the Judiciary drawn up by the UNO in 1985, the following are of particular interest:

“1. The independence of the judiciary shall be guaranteed by the State and enshrined in the Constitution or the law of the country. It is the duty of all governmental and other institutions to respect and observe the independence of the judiciary.

2. The judiciary shall decide matters before them impartially, on the basis of facts and in accordance with the law, without any restrictions, improper influences, inducements, pressures, threats or interferences, direct or indirect, from any quarter or for any reason.

3. The judiciary shall have jurisdiction over all issues of a judicial nature and shall have exclusive authority to decide whether an issue submitted for its decision is within its competence as defined by law.

4. There shall not be any inappropriate or unwarranted interference with the judicial process (…).

5. (…)

6. The principle of the independence of the judiciary entitles and requires the judiciary to ensure that judicial proceedings are conducted fairly and that the rights of the parties are respected.

7. It is the duty of each Member State to provide adequate resources to enable the judiciary to properly perform its functions.”

 

 

5. The Internationalisation and Trans-Nationalisation of the Principles Concerning the Independence of the Judiciary: Principles and Rules set forth by the Council of Europe.

 

The documents drafted by the Council of Europe in the field of Judicial Independence contain general principles, on one side, but dwell as well, on the other side, on some specific measures aiming at safeguarding in practice compliance with those rules. As far as general principles are concerned let me quote the following rules (see Principles 3-7, Recommendation No. R (2010) 12):

 

3. The purpose of independence, as laid down in Article 6 of the Convention, is to guarantee every person the fundamental right to have their case decided in a fair trial, on legal grounds only and without any improper influence.

4. The independence of individual judges is safeguarded by the independence of the judiciary as a whole. As such, it is a fundamental aspect of the rule of law.

5. Judges should have unfettered freedom to decide cases impartially, in accordance with the law and their interpretation of the facts.

6. Judges should have sufficient powers and be able to exercise them in order to carry out their duties and maintain their authority and the dignity of the court. All persons connected with a case, including public bodies or their representatives, should be subject to the authority of the judge.

7. The independence of the judge and of the judiciary should be enshrined in the constitution or at the highest possible legal level in member states, with more specific rules provided at the legislative level.”

 

As far as proper working conditions are concerned, the above-mentioned Recommendation provides for as follows (see Principles 32-38 of the Recommendation No. R (2010) 12):

“32. The authorities responsible for the organisation and functioning of the judicial system are obliged to provide judges with conditions enabling them to fulfil their mission and should achieve efficiency while protecting and respecting judges’ independence and impartiality.

33. Each state should allocate adequate resources, facilities and equipment to the courts to enable them to function in accordance with the standards laid down in Article 6 of the Convention and to enable judges to work efficiently.

34. Judges should be provided with the information they require to enable them to take pertinent procedural decisions where such decisions have financial implications. The power of a judge to make a decision in a particular case should not be solely limited by a requirement to make the most efficient use of resources.

35. A sufficient number of judges and appropriately qualified support staff should be allocated to the courts.

36. To prevent and reduce excessive workload in the courts, measures consistent with judicial independence should be taken to assign non-judicial tasks to other suitably qualified persons.

37. The use of electronic case management systems and information communication technologies should be promoted by both authorities and judges, and their generalised use in courts should be similarly encouraged.

38. All necessary measures should be taken to ensure the safety of judges. These measures may involve protection of the courts and of judges who may become, or are victims of, threats or acts of violence.”

 

It is sure that, as far as judicial status is concerned, the best protection for judicial independence, both “internal” and “external”, can only be assured by a High Council for the Judiciary.

According to western European standards, a High Council for the Judiciary should be the autonomous self-administration body in charge of safeguarding the independence of the judiciary. It should be composed exclusively of a majority representation of judges and public prosecutors. The High Council for the Judiciary should be entrusted with the appointment, assignment, transfer, promotion, and disciplinary measures concerning judges and public prosecutors. It should have the power to take decisions in all these matters and not to merely submit proposals to the administrative or legislative powers of the State.

       A reference to this body is to be found already in the Recommendation No. R (2010) 12 of the Council of Europe, whose Principles 26-29 provide for as follows:

“26. Councils for the judiciary are independent bodies, established by law or under the constitution, that seek to safeguard the independence of the judiciary and of individual judges and thereby to promote the efficient functioning of the judicial system.

27. Not less than half the members of such councils should be judges chosen by their peers from all levels of the judiciary and with respect for pluralism inside the judiciary.

28. Councils for the judiciary should demonstrate the highest degree of transparency towards judges and society by developing pre-established procedures and reasoned decisions.

29. In exercising their functions, councils for the judiciary should not interfere with the independence of individual judges.”

       More references to the self-governing body of the judiciary can be found in the European Charter on the status of judges, approved by the Council of Europe in 1998. A first direct reference to it is contained in Articles 1.3 and 1.4, respectively stating that “In respect of every decision affecting the selection, recruitment, appointment, career progress or termination of office of a judge, the statute envisages the intervention of an authority independent of the executive and legislative powers within which at least one half of those who sit are judges elected by their peers following methods guaranteeing the widest representation of the judiciary” and that “The statute gives to every judge who considers that his or her rights under the statute, or more generally his or her independence, or that of the legal process, are threatened or ignored in any way whatsoever, the possibility of making a reference to such an independent authority, with effective means available to it of remedying or proposing a remedy.”

         In the field of judicial selection, recruitment and initial training the Charter says that (paragraph 2.1) “The rules of the statute relating to the selection and recruitment of judges by an independent body or panel, base the choice of candidates on their ability to assess freely and impartially the legal matters which will be referred to them, and to apply the law to them with respect for individual dignity” and that (paragraph 2.3) “The authority referred to at paragraph 1.3 hereof, ensures the appropriateness of training programmes and of the organization which implements them, in the light of the requirements of open‑mindedness, competence and impartiality which are bound up with the exercise of judicial duties.”

        As far as appointment and irremovability are concerned the same document provides for that (paragraph 3.1) “The decision to appoint a selected candidate as a judge, and to assign him or her to a tribunal, are taken by the independent authority referred to at paragraph 1.3 hereof or on its proposal, or its recommendation or with its agreement or following its opinion” and that (paragraph 3.3) “Where the recruitment procedure provides for a trial period, necessarily short, after nomination to the position of judge but before confirmation on a permanent basis, or where recruitment is made for a limited period capable of renewal, the decision not to make a permanent appointment or not to renew, may only be taken by the independent authority referred to at paragraph 1.3 hereof, or on its proposal, or its recommendation or with its agreement or following its opinion.”

       As well in the field of career development the Charter states that “Decisions as to promotion are then pronounced by the authority referred to at paragraph 1.3 hereof or on its proposal, or with its agreement,” whereas, in the field of judicial liability, paragraphs 5.1, 5.2 and 5.3 provide for as follows: “The dereliction by a judge of one of the duties expressly defined by the statute, may only give rise to a sanction upon the decision, following the proposal, the recommendation, or with the agreement of a tribunal or authority composed at least as to one half of elected judges, within the framework of proceedings of a character involving the full hearing of the parties, in which the judge proceeded against must be entitled to representation. The scale of sanctions which may be imposed is set out in the statute, and their imposition is subject to the principle of proportionality. The decision of an executive authority, of a tribunal, or of an authority pronouncing a sanction, as envisaged herein, is open to an appeal to a higher judicial authority.” (paragraph 5.1).

“Compensation for harm wrongfully suffered as a result of the decision or the behaviour of a judge in the exercise of his or her duties is guaranteed by the State. The statute may provide that the State has the possibility of applying, within a fixed limit, for reimbursement from the judge by way of legal proceedings in the case of a gross and inexcusable breach of the rules governing the performance of judicial duties. The submission of the claim to the competent court must form the subject of prior agreement with the authority referred to at paragraph 1.3 hereof.” (paragraph 5.2).

Each individual must have the possibility of submitting without specific formality a complaint relating to the miscarriage of justice in a given case to an independent body. This body has the power, if a careful and close examination makes a dereliction on the part of a judge indisputably appear, such as envisaged at paragraph 5.1 hereof, to refer the matter to the disciplinary authority, or at the very least to recommend such referral to an authority normally competent in accordance with the statute, to make such a reference. (paragraph 5.3).

Finally, paragraph 7, dealing with the issue of termination of office, provides for that “A judge permanently ceases to exercise office through resignation, medical certification of physical unfitness, reaching the age limit, the expiry of a fixed legal term, or dismissal pronounced within the framework of a procedure such as envisaged at paragraph 5.1 hereof,” (paragraph 7.1) and that “The occurrence of one of the causes envisaged at paragraph 7.1 hereof, other than reaching the age limit or the expiry of a fixed term of office, must be verified by the authority referred to at paragraph 1.3 hereof” (paragraph 7.2).

 

Taking now in account Opinion No 1 (2001) of the Consultative Council of European Judges (CCJE) we can remark that this body has taken a firm stand on many of the topics dealt with by Recommendation No. (94) 12 and subsequently dealt with by Recommendation No. R (2010) 12. Among others we can mention the following ones.

       Point 25: “The CCJE recommended that the authorities responsible in member States for making and advising on appointments and promotions should now introduce, publish and give effect to objective criteria, with the aim of ensuring that the selection and career of judges are “based on merit, having regard to qualifications, integrity, ability and efficiency.”

Point 37: “the CCJE considered that every decision relating to a judge’s appointment or career should be based on objective criteria and be either taken by an independent authority or subject to guarantees to ensure that it is not taken other than on the basis of such criteria.”

       Point 45: “Even in legal systems where good standards have been observed by force of tradition and informal self-discipline, customarily under the scrutiny of a free media, there has been increasing recognition in recent years of a need for mo re objective and formal safeguards. In other states, particularly those of former communist countries, the need is pressing. The CCJE considered that the European Charter - in so far as it advocated the intervention (in a sense wide enough to include an opinion, recommendation or proposal as well as an actual decision) of an independent authority with substantial judicial representation chosen democratically by other judges - pointed in a general direction which the CCJE wished to commend. This is particularly important for countries which do not have other long entrenched and democratically proved systems.”

       Point 53: “The CCJE considered that when tenure is provisional or limited, the body responsible for the objectivity and the transparency of the method of appointment or re-appointment as a full-time judge are of especial importance (see also paragraph 3.3 of the European Charter).”

Point 56: “The CCJE agreed that the importance for national legal systems and judges of the obligations resulting from international treaties such as the European Convention and also the European Union treaties makes it vital that the appointment and re-appointment of judges to the courts interpreting such treaties should command the same confidence and respect the same principles as national legal systems. The CCJE further considered that involvement by the independent authority referred in the paragraphs 37 and 45 should be encouraged in relation to appointment and re-appointment to international courts.”

Point 60: “The CCJE considered (a) that the irremovability of judges should be an express element of the independence enshrined at the highest internal level (see Paragraph 16 above); (b) that the intervention of an independent authority13, with procedures guaranteeing full rights of defence, is of particular importance in matters of discipline; and (c) that it would be useful to prepare standards defining not just the conduct which may lead to removal from office, but also all conduct which may lead to any disciplinary steps or change of status, including for example a move to a different court or area.”

 

 

6. Internationalisation and Trans-Nationalisation of Principles Governing the Independence of the Judiciary: General Rules.

 

I shall now try to summarise the basic principles and the crucial requirements for the exercise of a truly independent justice system:

 

1.            The judiciary is an autonomous body. It is not subject to either of the other state authorities. Public prosecutors should enjoy the same statutory guarantees as judges.

2.            Judges and public prosecutors are subject only to the law.

3.            Judges and public prosecutors should be appointed for life or for such period as is consistent with guaranteeing their independence. No change introduced in regard to the compulsory retirement age should have a retroactive effect.

4.            Judges and public prosecutors should be selected by public competition. The selection and appointment of judges and public prosecutors should be carried out according to objective and transparent criteria and on the basis of the professional qualifications of the persons concerned.

5.            There should be no interference by the legislative or executive authorities in the selection of judges and public prosecutors.

6.            A High Council for the Judiciary should be established with responsibility for appointments, assignments, transfers, promotions and disciplinary procedures in relation to judges and public prosecutors. This body should be composed of judges and public prosecutors, or at the very least should include a majority of judges and public prosecutors.

7.            Judges and public prosecutors should only be transferred, suspended or removed from office in circumstances prescribed by law and then only as the result of a disciplinary finding reached by the competent body through the appropriate procedure.

8.            Disciplinary proceedings should be brought before an independent council which includes a substantial representation of judges. Disciplinary proceedings against judges should only be brought under the provisions of a pre-existing law and in accordance with pre-established rules of procedure.

9.            Judges and public prosecutors are entitled to an effective system of initial and in-service training. The training of judges should be carried out by an independent establishment (such as a school established specifically for the initial and/or in-service training of judges), or by an independent body (such as the High Council for the Judiciary), which would include a substantial representation of judges.

10.       Judges should have appropriate working conditions.

11.       The salaries of judges and of public prosecutors should be established by law (and not by administrative decision) and be linked to the salaries of members of parliament or ministers. They should on no account be reduced.

12.       Judges and public prosecutors should have full freedom of association. Service within such an association should be officially recognised as having the same status as the ordinary work of judges.

 

I must admit that none of the instruments or declarations cited above includes all of the rules that I have just proposed, but it is nevertheless clear that those international documents must be read and interpreted today as forming part of a patchwork structure, constituting a veritable “international and trans-national corpus juris on the status of judges. This system has already been applied to some extent at national level in Europe. One example I might quote is that of the Italian constitution: this text–although it was drawn up over half a century ago, at the end of a period of dictatorship, conflict and civil war–has nevertheless managed to protect the independence of the judiciary over the past 60 years.


 

(II)

SELECTION, TRAINING AND CAREER OF JUDGES:

INTERNATIONAL STANDARDS AND THE ITALIAN EXPERIENCE

 

7. The Selection of Judges in Recommendation No. CM/Rec (2010) 12.

 

The above mentioned Recommendation No. R (2010) 12 devotes a  whole part of Chapter VI (Status of the judge) to the issues of judicial selection and career. As the issues surrounding these two topics do not always coincide, perhaps a distinction should be drawn between the two aspects, considering first selection and then career.

       From a general point of view it should be observed that the recruitment of judges is carried out in many different ways in the various systems throughout the world[6].This variety is also present in Europe, where every imaginable system for the selection of candidates for the judiciary is to be found, including election by popular ballot, as in certain Swiss cantons (on practice within Europe, see Paragraph 8 below).

       Of course, each method has its advantages and its drawbacks.

a)  The first method consists in conferring the choice of judges on the executive or legislative authorities: while, on the one hand, this serves to reinforce the legitimacy of the judicial appointment, the heavy dependence of the judiciary on the other powers, together with the political implications, carries obvious risks.

b)  Election by the electorate is the method that confers on judges the highest level of legitimacy, as it comes straight from the people. However, this system obliges the judge to conduct a humiliating, and sometimes demagogic, electoral campaign, inevitably with the financial backing of a political party, which sooner or later might ask for a favour in return. Furthermore, the judge might be tempted to tailor his judgments to his electorate.

c)   Co-option by the judiciary itself offers the advantage of being able to choose the judges who are best prepared technically, but there is a strong risk of conservatism and cronyism.

d)  Nomination by a committee of judges and legal academics (preferably appointed by an independent body representing the judiciary) following a public competition, constitutes the final system, as currently applied in a number of countries.

Faced with these alternatives, articles 44-48 of the 2010 recommendation show a marked preference for the elimination of all executive influence from the appointment of judges. The general rule in this regard is in fact explicitly stated in article 46: “The authority taking decisions on the selection and career of judges should be independent of the executive and legislative powers. With a view to guaranteeing its independence, at least half of the members of the authority should be judges chosen by their peers.”

The following article 47 is, by contrast, clearly conceived as an exception to the rule of article 46. That is to say, the recommendation appears to view as exceptional a country where “the constitutional or other legal provisions prescribe that the head of state, the government or the legislative power take decisions concerning the selection and career of judges”. Here a very serious problem faces the countries of Central and Eastern Europe, where historical “tradition” has not always been democratically based, and constitutions and laws instituted after the fall of the Berlin Wall–often under the influence of the Common Law systems–have led to systems of appointment and control over judges’ careers that afford them no protection from attempts at undue influence on the part of the political authorities.

It is true that article 47 tries to suggest, in its second part, some expedients aimed at limiting the discretionary power of the executive (or legislative) authorities. This is particularly the case, for example, with the creation of “an independent and competent authority drawn in substantial part from the judiciary (without prejudice to the rules applicable to councils for the judiciary contained in Chapter IV).” Unfortunately, it is the very lack of almost any detailed and reliable information on the practice actually followed that gives rise to concern. The author of this essay is well aware–having visited nearly all the countries concerned–that between the letter of the law and the daily reality of the judge’s duties, between official speeches and private conversation, there often lurks an abyss.

 

 

8. Selection of Judges in the Different European Legal Systems.

 

It would be impossible to summarise here the diversity of methods adopted throughout Europe for the recruitment of judges. In an attempt to cover this topic in the best possible way, I propose to identify (while bearing in mind the principle of independence) the categories into which the various systems fall.

The first thing to note is that a university qualification in legal studies is required nearly everywhere. A minimum age together with “good character” is also a requirement laid down by law nearly everywhere. Having said this, the system of competition is certainly preponderant in Western and Southern Continental Europe (with some notable exceptions such as, for example, the Swiss cantons, where judges are elected by the people or by parliament). Such a competition may be open, in some cases, to any person with a law degree (subject to the conditions established by the various laws), or else to persons whom one could term “specialists”, in that they not only have a legal qualification, but also some form of specialisation or practical experience.

Moreover, depending on the country concerned, the competition can give either direct access to the judiciary, subject to the completion of a period of initial training under the supervision of the High Council for the Judiciary (such was for a very long time the case, for example, in Italy, where now a School for the Judiciary exists), or access to a training institution (such is the case, for example, in France, the Netherlands and Portugal; the result is practically the same in Germany, although there the training precedes the choice of career and is common to judges, barristers and solicitors; the system of competition is also to be found in the Baltic states and in Turkey).

By way of contrast, the Common Law systems and those of the Nordic states are characterised either by the complete absence of any competition for access to the judiciary, or by the absence of a competition in the strict sense: here, appointment to the judiciary is primarily the culmination of a training process, a cursus honorum, which candidates complete in the field (even if the Commission for Judicial Appointments–which provides, in the U.K., an independent mechanism for applicants for judicial office who feel that their candidacy has not been considered fairly–and the setting up of a Judicial Study Board, opened new perspectives in this field[7]).

Obviously, under the first type of system it is the boards appointed to carry out the task of selecting candidates and the initial training institutions which play the determining role in selecting new judges, even if the formal instrument of nomination carries the signature of the Minister of Justice or the President of the Republic. In the other systems, however, the influence of the executive is (or can be) very considerable. However, in the Anglo-Saxon countries and the Scandinavian countries, other factors (such as the legal tradition, the widespread respect for the judiciary, the social and economical position of judges, the existence of the “contempt of court”) guarantee, on the one hand, the quality of the selection and, on the other hand, the maintaining of a situation of separation between the authorities and an independent judiciary.

In the countries of the former communist bloc the situation seems somewhat complex and difficult to grasp.

As I have already observed (see above, Paragraph 7), the overall conclusion from this is that the situation is still weighted too heavily in favour of the political authorities lato sensu (the executive, but also, in several cases, the legislature). While it is true that very often “qualifications boards” are involved (as for example in the Russian Federation), it is by no means clear how such bodies are composed, or, in particular, what criteria are followed, or what effective powers such boards have to determine in practice, in relation to the executive, the actual choice of candidates when their number exceeds the number of posts available.

The same is true of systems where Judicial Councils only have a consultative function in this regard (in, for example, the former Yugoslav Republic of Macedonia, the Czech Republic or Slovakia), even if the perverse effects of a system that accords considerable power to the executive authorities (or to the legislature in systems where judges are elected) may be alleviated by the intervention of the association of judges (as for example in the Czech Republic). Conversely, the intervention in such a process of a High Council for the Judiciary with decision-making powers in this regard (as opposed to a merely advisory function) certainly provides a very reassuring guarantee (such is the case, for example, in Croatia, Poland, Romania and Slovenia)[8].

 

 

9. The Selection of Judges in the Italian Legal System.

 

Access to the profession of judge and public prosecutor in Italy takes place through a public competitive examination pursuant to article 106, paragraph 1, of the Constitution. Rules on the entry to the profession of judge and prosecutor have been changed over the last years, on the one hand to simplify and expedite the examination proce­dure and, on the other, to promote the development of a cultural basis com­mon to all the members of the legal world connected to the activities linked to the exercise of the judicial function: judges and prosecutors, notaries and lawyers. The legislator has thus constituted Schools of Specialisation for the Legal Professions, which are post‑graduate schools set up within the Universities for law‑graduate students that want to enter the legal professions (Legislative Decree No. 398/97).

With a view to rationalising and speeding up the relevant procedure, and with a view to implementing the assessment of the candidates in a rea­sonable time and with the required accuracy, the public examination for entry to the Judiciary has been completely amended by the aforesaid Leg­islative Decree No. 398/97 and the amendment of Article 123 of the judicial system. The–already existing–written and oral exams were temporarily sided by a computerised preliminary test on the subject matters dealt with in the writ­ten exam.

The computerised preliminary test was then subsequently set aside with­in the new framework of the public examination developed by Act no. 48/2001. The whole matter was then reformed by the Legislative Decree No. 160 of 2006, subsequently amended by the law No. 111 of 2007.

The competitive public examination for judges and prosecutors consists of three written exams (on: civil, criminal and administrative law) and an oral exam on the main legal subjects (see article 1 of the above mentioned Legislative Decree No. 160 of 2006).

The competitive examination for judges/prosecutors is published by the Minister of Justice, pursuant to a deci­sion of the High Council for the Judiciary, which sets the number of positions. The examining committee, appointed by the High Council, is chaired by a judge/prosecutor with at least twenty-four years of seniority. It consists further of twenty judges/prosecutors with at least twelve years of seniority, five uni­versity law professors and three lawyers (see article 1 of the above mentioned Law No. 111 of 2007). The classification drawn up by the commission, which is based on the total sum of the votes given to each candidate in each individual test, is then approved by the High Council[9].

 

 

10. International Standards on Judicial Training.

 

The subject of judicial training[10] figures more and more prominently in international documents concerning the status and independence of judges.

For example, Article 10 of the Basic Principles on the Independence of the Judiciary drawn up by the UN in 1985, stipulates that: “Persons selected for judicial offices shall be individuals of integrity and ability with appropriate training or qualifications in law.” The European Charter on the Statute for Judges approved by the Council of Europe in 1998 stipulates, inter alia, that “The statute ensures by means of appropriate training at the expense of the sate, the preparation of the chosen candidates for the effective exercise of judicial duties” and that “an authority independent of the executive and legislative powers within which at least one half of those who sit are judges elected by their peers following methods guaranteeing the widest representation of the judiciary ensure the appropriateness of training programmes and of the organisation which implements them, in the light of the requirements of open-mindedness, competence and impartiality which are bound up with the exercise of judicial duties” (Art 2.3 and 1.3).

Before the adoption of this document, the Council of Europe had organised a multilateral meeting of training bodies in the different member countries, together with those of the countries of Central and Western Europe; that conference was held in Lisbon 27-28 April 1995 and the delegates affirmed “the need to give special priority to the training of judges and public prosecutors and expressed the need to extend and improve training methods taking into account the different legal systems’ traditions and to respect and encourage the intellectual independence of judges.” The delegates participating in that discussion forum had also stressed that “the necessity for judges and public prosecutors to ensure that the efficiency of justice should not be prejudiced by the requirement of developing the qualifications and the professional conscience of members of the judiciary.”

The wishes of the Council of Europe have already become reality in France, at least in relation to the existence of a genuine right to judicial training, which was created by law No. 92-189 of 25 February 1992. This text, amending Act No. 58-1270 of 22 December 1958 (constitutional law on the statute of the judiciary), expressly confers on judges “the right to further training.” In Italy, on the other hand, the “Judicial Code of Ethics” approved on 7 May 1994 by the National Association of Judges and revised in 2010, stipulates in Article 3 that “the judge shall carry out his duties diligently and thoroughly. He/she shall maintain and add to his professional experience by undertaking to use and extend his knowledge in the areas in which he exercises his activities.” This provision is part of a body of rules that has no binding force; however, it calls upon each judge from the point of view of professional ethics constantly to monitor his own professionalism standards[11].

Recommendation No. R (2010) 12 devotes two articles to the subject of judicial training. According to article 56, “Judges should be provided with theoretical and practical initial and in-service training, entirely funded by the state. This should include economic, social and cultural issues related to the exercise of judicial functions. The intensity and duration of such training should be determined in the light of previous professional experience.”

The following article 57 provides for that “An independent authority should ensure, in full compliance with educational autonomy, that initial and in-service training programmes meet the requirements of openness, competence and impartiality inherent in judicial office.” The reference to an “independent authority” clearly leaves the field open both to Judicial Training Centres and Schools, as well as to bodies such as the High Council for the Judiciary. Of course Judicial Training Centres have to be endowed with the necessary degree of independence, vis-à-vis the other powers of the State, but also in their relations to the High Council, where it exists.

 

 

11. Right to Judicial Training and Judicial Training Structures.

 

The discussion that is taking place internationally concerning texts on the subject of training leads us to the following conclusions:

a)   training is increasingly perceived today as the something which a judge is entitled to receive from the state;

b)  however, it is also a responsibility on the part of each judge;

c)   it is closely bound up with the independence of the judiciary.

Those three principles enable us to reply to the question: who should be responsible for training? But in dealing with this subject, another point has to be considered:

What is training and, in particular, what is involved in the training of judges? In its report to the Italian Parliament on the state of the justice system for the year 1994, the Italian High Council for the Judiciary defined training as “organised communication of technical, practical and ethical skills to supplement knowledge gained from the exercise of one’s own profession; such imparting of knowledge is carried out in an organised and systematic way using a programme in which the operator is pro-active.” That means that training is, above all else, teaching. But it is also a great deal more than that, as training is not limited to communication of theoretical knowledge, but also includes sharing a corpus of operational knowledge (know-how) and presenting models of behaviour (life skills).

If all this is true, then it is hard to see why the training of judges should be exempt from respect for freedom of education, a principle that is in fact fully recognised by the Constitutions of a number of European countries; see for example Article 33 of the Italian Constitution: “Art and science, together with their teaching, are free. (…) Institutions of higher learning, universities and academies are free to adopt autonomous forms of organisation, within the limits established by State law”; see too Article 5 of the German Grundgesetz, which in its third subparagraph stipulates that “Art and sciences, research and teaching are free. (...)”.

Independence of the judiciary and freedom of education: those are the two pillars of the training of judges. If one accepts these two propositions, the reply to the question as to responsibility for training can only be as follows: the body whose task it is to train judges should not only be independent of other state authorities, but also have a remarkable degree of autonomy in relation to the institution responsible for administering the judiciary.

With these remarks in mind, it would be desirable to affirm the principle that the training of judges should be carried out by an institution which truly represents the judiciary and which is effectively independent of any other authority (in particular the Ministry of Justice). This structure should be drawn up by the law, which should specify how its managing committee should be composed. Members of this panel should be mainly judges appointed by the High Council, even though some representatives of other legal professions should be included (university professors at law schools, attorneys, notaries). The managing committee should be responsible for the setting up of yearly training programmes, as well as for the detailed programme of each training course for judges. They should appoint experts to teach as well as to lead practical workshops and discussions inside each training course. The panel should be accountable to the High Council for the Judiciary and should draw up an yearly detailed report on the training activity for judges.

Training activity should be open to all kind of judges (and of public prosecutors) who desire to improve their professional skills. Attendance of training activities should be made compulsory for young judges as well as for judges who change their functions after a certain period of time (e.g. for a judge who has been dealing for years only with civil law and who wants to be transferred to a post in penal law division of a court). A special statute should allocate resources for this institute, providing for that inside the annual state budget a certain amount of money be exclusively dedicate to the financing of this structure and to the training activities for judges.

The participation in training initiatives should be considered as an activity regarded as being on a par with judicial activities in the ordinary sense; furthermore, this participation should be taken into account each time a judge applies for transfer or promotion. Finally, the process of self-tuition should also be regarded as one of the pillars of the training of the modern judge. Incentives should therefore be provided (for example, tax exemptions) for the purchase of books and CD-ROMs or DVDs containing legal data bases, for on-line access to legal data bases on the Internet, etc.[12].

 

 

12. Initial Training for the Judiciary in Italy.

 

As far as initial training is concerned, one must bear in mind that the successful candidates of the competitive public examination for trainee judges and prosecutors are appointed trainee judges and prosecutors and posted to a first instance judicial office attached to a Court of Appeal for the prescribed training (the relevant rules have been amended by the Legislative Decree No. 26 of 2006 and the above mentioned Law No. 111 of 2007).

The length of the training is set by the law in eighteen months. The training consists of attending a judicial office and co‑operating in the judicial activity performed by other judges and pros­ecutors in the civil and criminal sector either as single or associate judges or alternatively as public prosecutors. It consists as well in attending training courses at the Superior School for the Judiciary.

Until 2012 Italy was one of the few countries in Europe without an academy or school for the judiciary. This meant that the training was directly organised, co‑ordinated and controlled by the High Council for the Judiciary, with the help of peripheral joint bodies (judicial councils and district commissions) and available learned judges and prosecutors (collaborators and assignees). Nowadays the theoretical part of the initial training in Italy is assured by the Superior School for the Judiciary, according to the provisions of the above mentioned Law No. 111 of 2007.

We should also remark that the training period is divided into two main parts:

·      the “ordinary” training period, during which trainees are assigned to a certain number of court sections or prosecutorial offices;

·      the “specialised” training period, during which trainees are assigned to a court section (or prosecutorial office) similar to the one they have chosen according to the place they have in the final score list of their competitive examination.

According to the Legislative Decree No. 26 of 2006 and the Law No. 111 of 2007, trainees must attend a period of training at the School and period of training in judicial offices. At the end of the period of training the School assesses them. Files and reports are then transmitted to the High Council for the Judiciary, which is responsible for the final assessment affecting the future of the trainees.

 

 

13. On-the-Job Training for the Judiciary in Italy.

 

As far as the on-the-job training is concerned, once again it has to be stressed that, until 2012, Italy did not have an autonomous institution (Academy, or School, or Training Institute) especially in charge of providing training for judges/prosecutors. This lamentable situation was to blame on a decision of the Italian Court of Accounts which in 1994 decided to stop a first attempt made in this direction by the High Council for the Judiciary. It was therefore up to the High Council to provide for this activity. The Council had set up a special commission, which was assisted by a Scientifical Committee composed of 16 members (12 judges/prosecutors and 4 university professors). The task of this committee was that of setting up training activities in the most various fields of the law and of the judicial practice, with the help of “teachers” coming from different professional experiences, like judges, prosecutors, professors, lawyers, notaries, experts, psychologists, sociologists, journalists, etc.

As for the “offer” of initiatives organised during these years, we can remark that they were yearly in the number of 40-50. Each training course was usually addressed to about 100 judges/prosecutors. Attendance to these conferences had been opened also to some lawyers, upon invitation by the High Council for the Judiciary. Subjects dealt with were the most various: international and comparative law, civil law, civil procedure, penal law and criminal procedure, family and juvenile law, commercial law, labour law, computer and law, etc.

The training offer by the High Council was also diversified as regards the training methods. Some courses were organised in a traditional way, with rapporteurs delivering speeches, followed by a public discussion. Some other courses followed patterns which were more “agile”: so, for instance, during the “workshops on professional practice” the participants used to immediately pass to a system of discussion and exchange of experiences.

A quite new “frontier” of judicial training was represented by the so called “local” training, upon which the High Council for the Judiciary adopted a resolution on 26 November 1998. The aim of this initiative was that of bringing the training activities close to those judges/prosecutors who for personal reasons (i.e. pregnant women, or colleagues with very little children) cannot reach Rome, where training courses use to be held. In order to organise such initiatives a special “network” had been set up, composed of judges who at local level organised training courses and other activities. Among these latter we can mention “first aid” counselling by elder and more experienced colleagues, who offered their help to younger judges/prosecutors who would like to have an exchange of views on certain topics. The activity of such training had been extended in the last years to legal training in fields of European and international law.

All of such initiatives have been taken up, in 2012, by the Superior School for the Judiciary, which, according to already mentioned Law No. 111 of 2007, is now in charge not only of the initial, but also of the continuous, or “on the job” training.

 

 

14. The Career of Judges in Recommendation No. (2010) 12 and the Italian Experience.

 

As far as the career of judges is concerned, the already mentioned Recommendation No. R (2010) 12 of the Council of Europe expresses (see article 44) a very clear preference for a system based on merit: “Decisions concerning the selection and career of judges should be based on objective criteria preestablished by law or by the competent authorities. Such decisions should be based on merit, having regard to the qualifications, skills and capacity required to adjudicate cases by applying the law while respecting human dignity.” The reality of rule making in many European countries presents a stark contrast, inasmuch as there is an almost total lack of objective criteria established by law for the career of judges. In this field (as in that of the selection of judges), there is a need for procedures and criteria whereby judges can be assessed in order for them to advance as desired in their careers.

       However, from a more general point of view, some doubt might be cast on the efficiency of a wholly career-based system in a body such as the judiciary, which by definition should not have a hierarchy in the strict sense. The experience of Common Law countries in this regard, on the one hand, and the discussion currently under way in a number of continental countries on imposing time limits for service as senior court judge[13], on the other hand, suggest that the time for a pyramid-shaped structure in the judiciary may be over. Furthermore, we must not forget that now, according to article 22 of the above mentioned Recommendation “Hierarchical judicial organisation should not undermine individual independence.”

       Some thought should also be given subsequently to the desirability of a mechanism where advancement in one’s career (and salary received) is closely linked with the actual duties performed. It might be helpful, perhaps, to outline here the salient points of the Italian system, the only one (as far as I know) to have achieved a complete separation between grade and function[14].

       It should be borne in mind from the start that in Italy there is a single career structure for judges and public prosecutors: the only requirement for moving from one function to the other is an aptitude test, which is very rarely negative. Advancement now takes place through the following stages: trainees (who in Italy are already regarded as part of the judiciary), after a training period of about two years, can be assigned to any of the posts in a court of first instance: judge of the court (exercising the functions of a judge sitting alone or a judge sitting as part of a bench of judges), judge responsible for execution of sentence, children’s judge. The High Council for the Judiciary prepares a list of posts from among the available vacancies and interviews the trainees, who state their preference according to their place in the competition pass list.

       After this, every four years all judges and prosecutors have to be assessed. All in all, seven assessments are provided for by the law during the whole career; they take place every four years. All promotion takes place, once the necessary seniority has been attained, by decision of the High Council for the Judiciary, on the basis of a report by the competent Judicial Council (a local consultative body, constituted in association with each court of appeal). Any judge/prosecutor declared unsuitable will be subjected to a further assessment. In cases of failure of this second assessment the judge/prosecutor will lose his/her status.

       This system, set up between 1966 and 1973, further revised in 2006 and 2007, dissociated grade from office and eliminated competition for the rank of appeal judge and judge of the Court of Cassation. Thus a judge may progress all the way up the career (and salary) scale on the basis of seniority, subject to assessment by the High Council for the Judiciary. As this method is based on the separation of grade from office, promotion takes place irrespective of whether or not there is actually a position available at the grade obtained. The only immediate consequence of promotion is an increase in salary[15]. Thus, despite the fact that the designations corresponding to the grades in the former career system are still in use, in reality such designations are merely an indication of progression up the salary scale.

       The system described above has had the advantage of overcoming the drawbacks of advancement by selection or by competition: that was basically a system of co-option that implied a state of psychological subordination on the part of “inferiors” and no doubt encouraged an attitude of conformity. The hierarchical principle is incompatible with the principle of independence. Two provisions of the Italian Constitution: “judges are subject only to the law” (Article 101 (2)) and “judges differ from each other only in the diversity of their functions” (Article 107 (3)), have served to guarantee not only the independence of the judiciary in relation to the government, but also “internal” independence, that of every judge in relation to the hierarchy and the judiciary. And indeed, every judge, whatever his place in the hierarchy, is exercising the same authority to judge[16].

       The conferring on the High Council for the Judiciary of the final decision in respect of assessments, assignments and appointments is a true guarantee of the independence of each judge. Furthermore, one consequence of dissociating grade and function has been that judges with a certain seniority and professional experience have been able, without fearing any detrimental effect on their career, to remain in key posts in the lower courts, dealing with big criminal organisations, business crime, the Mafia and terrorism. Otherwise, the only alternative would have been to allocate these posts to newly appointed trainee judges.

 

 

15. The Career of Judges in the Different European Legal Systems.

 

I could reiterate here most of the comments made before, on the subject of judicial selection. Under systems where recruitment is conducted on the basis of a competition, the High Council for the Judiciary tends to make decisions about the career of judges on the basis of a series of objective criteria (or criteria that are being rendered objective through the drawing up of regulations and directives). However, a large number of legal systems do not have any objective legal criteria in this regard (such is the case in, for example, Cyprus, Estonia, the Russian Federation, Finland, Iceland, Lithuania, Luxembourg, Norway, the Netherlands and the Czech Republic), while others have regulatory criteria (see e.g. Germany or Slovakia).

Moreover, in certain common law systems (to the extent, of course, to which we can speak here in terms of judges’ careers), a tendency can be seen towards greater objectivity in the rules for promotion: thus in Britain promotion of judges now follow well publicised criteria.

As for the countries of Central and Eastern Europe, I can only refer once again to the distinction between systems where the Judicial Councils (or Councils of Judges, Councils of Justice, etc.) are given real decision-making powers (in particular Croatia, Poland, Romania, Slovenia and the Baltic countries) and others where, in my opinion, it is very difficult to speak in terms of the self-regulation of the judiciary in relation to the career of judges.

Mention has already been made of the special case of Italy, in having a complete separation between grade and function in terms of career (see above, Paragraph 14).


 

(III)

THE STATUS OF JUDGES AND

THE PROTECTION OF JUDICIAL INDEPENDENCE

THROUGH A HIGH COUNCIL FOR THE JUDICIARY:

INTERNATIONAL STANDARDS AND THE ITALIAN EXPERIENCE

 

16. Irremovability of Judges in Recommendation No. R (2010) 12 and in the Legal Systems of European Countries.

 

Coming now to some of the main rules concerning the judicial status we shall remark that one of the most crucial principles to safeguarding the independence of the judiciary is that of irremovability. In this context article 52 of the above mentioned Recommendation No. R (2010) 12 provides for that “A judge should not receive a new appointment or be moved to another judicial office without consenting to it, except in cases of disciplinary sanctions or reform of the organisation of the judicial system.”

Some European legislations are in conflict with the rule set out in the recommendation. What gives rise to the greatest concern is not, of course, the possibility of removal as the result of a disciplinary offence (even if one might challenge the validity of a principle that allows a judge to be at one and the same time a “bad judge” in one area and a “good judge” in another) but, once again, the actual law-making situation in certain countries of Central and Eastern Europe. For example, the case of the Czech Republic (see below, in this same paragraph) shows that a pure and simple reference in the Constitution to the ordinary law for the purpose of determining exceptions to the principle of irremovability (a principle that is established by the Constitution itself) can lend itself to attempts to limit the independence of the judiciary.

In many European countries the irremovability of judges is enshrined within the country’s constitution (such is the case, for example, with Andorra, Croatia, the Russian Federation, France, Ireland, Iceland, the former Yugoslav Republic of Macedonia, Lithuania, Luxembourg, Malta, Norway, Poland, the Czech Republic, Romania, Slovakia, Slovenia and Turkey; to this list of countries one might add Italy) or in an ordinary law (such is the case in Belgium, the Netherlands, Switzerland and, of course, the United Kingdom, which does not have a written constitution).

As far as exceptions to this principle are concerned, a number of constitutions refer back to the ordinary law. In most cases, this would involve transfers following disciplinary proceedings, although there are situations where transfers may be made even outside the scope of such proceedings. Here one might mention Iceland, where under Article 15 of Law No. 15 of 1998 the “Council for Judicial Affairs” is allowed to “move judges between jurisdictions, if it deems it necessary, for a period up to six months every ten years.”

One of the most worrying situations, however, concerns the Czech Republic. As I once had occasion to remark in Prague at a conference organised jointly by the Union of Czech Judges and the Senate of the Czech Republic, the government –because of the reference of Article 82 (2) of the Constitution to the ordinary law–introduced a series of reforms intended to restrict the principle of the irremovability of judges[17].

I would like to recall in this framework that in fact, neither the Basic Principles on the Independence of the Judiciary drawn up by the UN in 1985 (see Article 12, which states: “12. Judges, whether appointed or elected, shall have guaranteed tenure until a mandatory retirement age or the expiry of their term of office”), nor Principle I 3. Recommendation No. R (94) 12, nor Recommendation No. R (2010) 12, cite any instance in which it is permissible to derogate from the rule of irremovability (save for cases of disciplinary responsibility, or reorganisation of the judicial system).

Finally in this context it is must be said that in some countries judges are nominated for a predetermined length of time: this happens for the first appointments/nominations of judges in Croatia (5 years), Slovakia (4 years) and Romania (6 years but only for Supreme Court judges). Likewise in Norway’s “temporary judges” can be appointed for a specific period to fill temporary needs, in case of illness, leaves or backlog of cases in the court. It is also in this field that the principle of the independence of the judiciary might be infringed, particularly where the “confirmation” of the appointment (or “re-appointment” or “re-election”) of judges is left to the executive or legislative authority. Clearly, in such a case there would be reason to fear that the conduct of the judges in question and, especially, a decision in any case(s) involving some politicians, or some political power centre, might inevitably be regarded as decisive by those required to decide on the applications of the judges concerned.

In this framework let me recall the conclusions of Opinion No.1 of the Consultative Council of European Judges of the Council of Europe (2001) “on standards concerning the independence of the judiciary and the irremovability of judges”[18]:

“50. Certain countries make some appointments for a limited period of years (e.g. in the case of the German Federal Constitutional Court, for 12 years). Judges are commonly also appointed to international courts (e.g. the European Court of Justice and the European Court of Human Rights) for limited periods.

51.   Some countries also make extensive use of deputy judges, whose tenure is limited or less well protected than that of full-time judges (e.g. the UK and Denmark).

52.   The CCJE considered that where, exceptionally, a full-time judicial appointment is for a limited period, it should not be renewable unless procedures exist ensuring that:

(i) the judge, if he or she wishes, is considered for re-appointment by the appointing body and

(ii) the decision regarding re-appointment is made entirely objectively and on merit and without taking into account political considerations.

53.   The CCJE considered that when tenure is provisional or limited, the body responsible for the objectivity and the transparency of the method of appointment or re-appointment as a full-time judge are of especial importance (see also paragraph 3.3 of the European Charter).”

Finally, according to Article 51 of the Recommendation No. R (2010) 12, “Where recruitment is made for a probationary period or fixed term, the decision on whether to confirm or renew such an appointment should only be taken in accordance with paragraph 44 so as to ensure that the independence of the judiciary is fully respected.”

 

 

17. Protection of Judges Against all Undue Influence in Recommendation No. Rec. (2010) 12.  The Question of Judicial Immunity.

                          

Article 22 of the Recommendation No. R (2010) 12 of the Council of Europe deals with the problem of protecting the judge against “restriction, improper influence, pressure, threat or interference, direct or indirect, from any authority, including authorities internal to the judiciary.” For an efficient implementation of that rule, the text further stipulates that: “Superior courts should not address instructions to judges about the way they should decide individual cases, except in preliminary rulings or when deciding on legal remedies according to the law.” Article 14 further provides for that “The law should provide for sanctions against persons seeking to influence judges in an improper manner.”

This rule should be seen in conjunction with Article 6: “Judges should have sufficient powers and be able to exercise them in order to carry out their duties and maintain their authority and the dignity of the court. All persons connected with a case, including public bodies or their representatives, should be subject to the authority of the judge.”

It would be no exaggeration to see here an incipient acknowledgement at European level of the “contempt of court” rule, which has as its basis the need to prevent any form of interference with the independence of the judge in deciding a case. Furthermore, the principles we have just been discussing cannot be enforced otherwise than through the imposition of a sanction that the judge concerned should be able to apply (of course, subject to a form of appeal against any such decision). In this framework I have to point out that, under my pressure, the Commission charged by the Council of Europe to revise the former Recommendation No. R (1994) 12, inserted in the Explanatory Memorandum (see Article 21) an explicit reference to “contempt of court”: “The Recommendation calls for all necessary measures to be taken to protect and promote the independence of judges. These measures could include laws such as the ‘contempt of court’ provisions that already exist in some member states (Recommendation, paragraph 13).”

We should also see in a very positive light the final sentence Article 47 of the said Explanatory Memorandum, according to which judges should not be compelled “to report on the merits of cases they are dealing with.”

There might also be some risk of influence where the allocation and withdrawal of cases is concerned.

In this connection, Article 24 states that “The allocation of cases within a court should follow objective pre-established criteria in order to safeguard the right to an independent and impartial judge. It should not be influenced by the wishes of a party to the case or anyone otherwise interested in the outcome of the case.” It appears excessive, however, to exclude any system of distribution other than one based (see Article 32 of the Explanatory Memorandum) “on a drawing of lots, distribution in accordance with alphabetical order,” which might well prove detrimental to specialisation, particularly in courts with a large number of trainee judges. In fact, the recommendation mentions this system purely as an example and we should not therefore exclude such systems as, for example, allocation–by the head of the court concerned and/or the president of each division–on the basis of the special expertise of each civil or criminal division and of each judge.

A hint to this system can be see in the final part of Article 32 of the Explanatory Memorandum, where reference is made to “assigning cases to divisions of courts in an order specified in advance (so-called ‘automatic distribution’)” or to “the sharing out of cases among judges by decision of court Presidents.” What is important, so the said Article further explains, “is that the actual distribution is not subject to external or internal influence and designed to benefit any of the parties. Appropriate rules for substituting judges could be provided for within the framework of rules governing the distribution of cases. Caseload and overburdening are valid reasons for the distribution or removal of cases provided such decisions are taken on the basis of objective criteria (Recommendation, paragraph 24).”

As far as immunity of judges is concerned, almost all legislations in Eastern European countries extensively provide for rules on this topic. The western tradition doesn’t know this kind of guarantee for the independence of judges and international documents are silent on this subject. So, for instance, in Italy, in France, in Spain or in Germany judges are accountable for their actions according to the principles of criminal and civil law, exactly as any other citizen. But I understand very well that in societies where the respect for judges and their independence are still not so deeply rooted, it may seem preferable to protect the judiciary also by these means.

 

 

18. The High Council for the Judiciary: International Standards.

 

It is sure that, as far as judicial status is concerned, the best protection for judicial independence, both “internal” and “external”, can only be assured by a High Council for the Judiciary.

According to western European standards, such a Council should be the autonomous self-administration body in charge of safeguarding the independence of the judiciary. It should be composed exclusively of a majority representation of judges and public prosecutors. The High Council for the Judiciary should be entrusted with the appointment, assignment, transfer, promotion, and disciplinary measures concerning judges and public prosecutors. It should have the power to take decisions in all these matters and not to merely submit proposals to the administrative or legislative powers of the State.

       A clear reference to this body is to be found already in the European Charter on the status of judges, approved by the Council of Europe in 1998. A first direct reference to it is contained in Articles 1.3 and 1.4, respectively stating that “In respect of every decision affecting the selection, recruitment, appointment, career progress or termination of office of a judge, the statute envisages the intervention of an authority independent of the executive and legislative powers within which at least one half of those who sit are judges elected by their peers following methods guaranteeing the widest representation of the judiciary” and that “The statute gives to every judge who considers that his or her rights under the statute, or more generally his or her independence, or that of the legal process, are threatened or ignored in any way whatsoever, the possibility of making a reference to such an independent authority, with effective means available to it of remedying or proposing a remedy.”.

         In the field of judicial selection, recruitment and initial training the Charter says that (paragraph 2.1) “The rules of the statute relating to the selection and recruitment of judges by an independent body or panel, base the choice of candidates on their ability to assess freely and impartially the legal matters which will be referred to them, and to apply the law to them with respect for individual dignity” and that (paragraph 2.3) “The authority referred to at paragraph 1.3 hereof, ensures the appropriateness of training programmes and of the organization which implements them, in the light of the requirements of open‑mindedness, competence and impartiality which are bound up with the exercise of judicial duties.”.

        As far as appointment and irremovability are concerned, the same document provides for that (paragraph 3.1) “The decision to appoint a selected candidate as a judge, and to assign him or her to a tribunal, are taken by the independent authority referred to at paragraph 1.3 hereof or on its proposal, or its recommendation or with its agreement or following its opinion” and that (paragraph 3.3) “Where the recruitment procedure provides for a trial period, necessarily short, after nomination to the position of judge but before confirmation on a permanent basis, or where recruitment is made for a limited period capable of renewal, the decision not to make a permanent appointment or not to renew, may only be taken by the independent authority referred to at paragraph 1.3 hereof, or on its proposal, or its recommendation or with its agreement or following its opinion.”.

       As well in the field of career development the Charter states that “Decisions as to promotion are then pronounced by the authority referred to at paragraph 1.3 hereof or on its proposal, or with its agreement,” whereas, in the field of judicial liability, paragraphs 5.1, 5.2 and 5.3 provide for as follows: “The dereliction by a judge of one of the duties expressly defined by the statute, may only give rise to a sanction upon the decision, following the proposal, the recommendation, or with the agreement of a tribunal or authority composed at least as to one half of elected judges, within the framework of proceedings of a character involving the full hearing of the parties, in which the judge proceeded against must be entitled to representation. The scale of sanctions which may be imposed is set out in the statute, and their imposition is subject to the principle of proportionality. The decision of an executive authority, of a tribunal, or of an authority pronouncing a sanction, as envisaged herein, is open to an appeal to a higher judicial authority.” (paragraph 5.1).

“Compensation for harm wrongfully suffered as a result of the decision or the behaviour of a judge in the exercise of his or her duties is guaranteed by the State. The statute may provide that the State has the possibility of applying, within a fixed limit, for reimbursement from the judge by way of legal proceedings in the case of a gross and inexcusable breach of the rules governing the performance of judicial duties. The submission of the claim to the competent court must form the subject of prior agreement with the authority referred to at paragraph 1.3 hereof.” (paragraph 5.2).

Each individual must have the possibility of submitting without specific formality a complaint relating to the miscarriage of justice in a given case to an independent body. This body has the power, if a careful and close examination makes a dereliction on the part of a judge indisputably appear, such as envisaged at paragraph 5.1 hereof, to refer the matter to the disciplinary authority, or at the very least to recommend such referral to an authority normally competent in accordance with the statute, to make such a reference. (paragraph 5.3).

Finally, paragraph 7, dealing with the issue of termination of office, provides for that “A judge permanently ceases to exercise office through resignation, medical certification of physical unfitness, reaching the age limit, the expiry of a fixed legal term, or dismissal pronounced within the framework of a procedure such as envisaged at paragraph 5.1 hereof,” (paragraph 7.1) and that “The occurrence of one of the causes envisaged at paragraph 7.1 hereof, other than reaching the age limit or the expiry of a fixed term of office, must be verified by the authority referred to at paragraph 1.3 hereof” (paragraph 7.2).

Recommendation No. R (2010) 12 of the Council of Europe dedicates four articles to the Councils for the Judiciary.

After explaining in Article 26 that “Councils for the judiciary are independent bodies, established by law or under the constitution, that seek to safeguard the independence of the judiciary and of individual judges and thereby to promote the efficient functioning of the judicial system,” the Recommendation provides for (Article 27) that “Not less than half the members of such councils should be judges chosen by their peers from all levels of the judiciary and with respect for pluralism inside the judiciary.”

According to Article 28, “Councils for the judiciary should demonstrate the highest degree of transparency towards judges and society by developing pre-established procedures and reasoned decisions.” At the same time, the Recommendation tries to safeguard judicial independence even vis-à-vis such self administration bodies: “In exercising their functions, councils for the judiciary should not interfere with the independence of individual judges” (see Article 29).

 

 

19. The High Council for the Judiciary: The Italian Experience (Members and Electoral System).

 

The Italian Constitution of 1947 stipulates in its Article 104 as follows:

“The Judiciary is an autonomous body. It is not subject to any other power of the State.

       The President of the Republic is Chairman of the High Council for the Judiciary.

       The Chief Justice of the Supreme Court of Cassation and the Chief Public Prosecutor of the same Court are ipso jure members of it.

       As for the other members, two-thirds of them are elected by all regular judges of different categories, and one-third by Parliament in joint session, selection being made among professors of law faculties and lawyers of at least fifteen years standing.

       The Council elects an Assistant Chairman from among the members elected by Parliament.

       The elected members hold office for four years and are not immediately re-eligible.

       While they are in office they may not be registered on the Rolls of the legal profession, nor be members either of Parliament or of a Regional Council.”[19].

The Minister for Justice is not member of the Council. However he/she can attend its meetings when it appears necessary in order to give explanations or information. He/she can not take part in the vote[20]. According to Article 110 of the Italian Constitution, the Minister is entrusted only with “the organization and operation of services concerning the administration of justice.”

The High Council for the Judiciary (Consiglio Superiore della Magistratura – C.S.M.) is therefore the self governing body of the ordinary judiciary[21]. Under the judicial system’s laws, the C.S.M. is entrusted with the appointment, assignment, transfer, promotion, and disciplinary measures concerning Judges and Public Prosecutors (see Art. 105 Const.).

Currently[22] the Council is composed of twenty-seven members:

‑ the President of the Republic, who chairs the C.S.M.;

‑ the Chief Judge of the Supreme Court of Cassation;

‑ the Prosecutor General of the Supreme Court of Cassation;

‑ eight members appointed by Parliament (the so‑called “laymen”);

‑ sixteen members appointed by the judges and prosecutors (the so‑called “togati”–from toga, which means “robe”–or professional judges and prosecutors).

The Constitution (Art. 104 Const.) envisages that the President of the Republic and the Chief Judge and Prosecutor General of the Court of Cassation should be members of the Council “by right”. The only other restriction it imposes is to require two thirds of the other members to be elected by the ordinary judges and prosecutors belonging to the various ranks and one third by Parliament in joint session chosen from among reg­ular university law professors and lawyers with fifteen years experience in the legal profession. Therefore, the number of elected members and the election procedures are regulated by ordinary law[23].

As mentioned earlier, the number of elected members is currently set at 24 (16 judges and 8 “laymen”). The eight “lay” members are elected by Par­liament in joint session by secret ballot and by a majority of three fifths of the members forming the assembly. After the second ballot, a majority of three fifths of voters is, however, sufficient.

The members to be elected by the judges and prosecutors are chosen as follows: two from the judges/prosecutors with the rank and function of Court of Cassation judge/prosecutor, four from among the prosecutors performing their duties as prosecutors before first instance or appellate courts, ten from among judges performing their duties within first instance or appellate courts.

Before the last reform of the C.S.M. electoral system (Statute of 28 March 2002, No. 44) the elections of the members chosen from among the Judiciary took place on the basis of an adjusted proportional election system in which all judges and prose­cutors participated[24]. Candidates formed electoral lists to be submitted to the colleagues. These lists reflected the four “wings” belonging to the National Judges and Prosecutors Association (Associazione Nazionale dei Magistrati – A.N.M.), thus acting as a sort of “political” parties.

This system was radically changed through Statute of 28 March 2002, No. 44, which reduced from 33 to 27 the total number of the C.S.M. members. The old proportional system was replaced by a majority one. As usual all judges and public prosecutors have the right to vote, but “regional” constituencies (or electoral districts) have now been abolished. Currently there are only three constituencies concerning respectively:

(a)         judges and prosecutors of the Supreme Court of Cassation,

(b)        prosecutors before first instance and appellate courts and

(c)         judges of first instance and appellate courts.

Any voter receives three ballots and has to cast a vote (just one vote) for any of the three ballots:

(a)         one for one candidate of the Supreme Court,

(b)        one from a candidate from a public prosecutor office before a first instance or an appellate court, and finally

(c)         one for a judge from a first instance or an appellate court. Elected are those candidates who have received the most votes.

Under the Italian Constitution, C.S.M.’s elected members hold office for four years, and are not immediately eligible for reappointment (Art. 104 Const.).

The Constitution (Art. 104 Const.) also provides for the C.S.M. to elect a Vice President from among the members designated by Parliament. The Vice President, who chairs the Presidency Committee, is entrusted with the task of promoting the C.S.M.’s activity and implementing its resolu­tions, as well as managing the funds in the budget. Furthermore, the C.S.M.’s Vice President will replace the President if he is absent or unable to attend and will exercise the functions delegated to him by the President[25].

 

 

20. The High Council for the Judiciary: The Italian Experience (Constitutional Position and Activities).

 

As far as the C.S.M.’s posi­tion is concerned, the Constitutional Court has established that, although the C.S.M. is an organ that performs basically administrative functions, it is not part of the public administration, as it is extraneous to the organi­sational system directly under the control of the State or Regional governments.

With reference to the functions assigned to it by the Constitution, the C.S.M. has been defined as “a body of clear constitutional impor­tance.” Its functions may be defined as the “administration of the activities of the judiciary”: as already said, they consist in the recruitment, assignment, transfer, promotion and disciplinary measures concerning judges and prosecutors, including also the organisation of the judicial offices with a view to ensuring and guaranteeing that each and every member of the judiciary is subject “only to the law” when exercising his/her office. In this latter respect, it should be stressed that at the proposal of the Presidents of the Appeal Courts, and after consulting the Judicial Councils, every two years the C.S.M. approves the personnel “tables” of the judicial offices of each district (i.e.: in how many sections each court is divided and to which of any section judges are assigned) and at the same time approves objective and predetermined criteria for assigning the case files to individual judges.

The C.S.M. is thus the highest ranking body in charge of the admin­istration of judicial activities. Local judicial Councils and the heads of indi­vidual judicial and prosecuting offices also co‑operate, with different, mostly advisory, roles.

Works within the Council are always carried on through two phases. Any decision has to be first discussed within one of the Commissions of which the C.S.M. is composed. So e.g. the decision of appointing a candidate to the post of President of a court has to be discussed within the relevant C.S.M. Commission, which will issue a proposal. This proposal shall be brought before the plenary session, which shall take the final decision on it. Any commission is composed of six members (two “laymen” and four professional judges or prosecutors).

The law setting up the C.S.M. entrusts it the power to issue quasi‑statutory measures which may be divided into three categories:

a)   internal regulations and administrative/accounting regulation, both of which are envisaged by the law;

b)  regulations covering the training of trainee judges and prosecutors, which is also expressly envisaged by the law constituting the C.S.M. It regulates the training of the judges/prosecutors once they have passed the entrance exam;

c)   circular letters, resolutions and directives. Circular letters are used to self‑discipline the exercise of the administrative discretionary power assigned to the C.S.M. by the Constitution and by ordinary laws. The resolutions and directives are used to propose and implement the application of judicial system laws pursuant to a systematic interpreta­tion of the sources.

As far as the disciplinary power of the C.S.M. is concerned, it should be remarked that the Council cannot start before itself any disciplinary proceedings. This power is entrusted only to the Minister of Justice and to the Chief Prosecutor before the Supreme Court of Cassation. The proceeding is later carried on by a special Disciplinary Section of the Council. This subject will be dealt with later on (see below, Paragraph 24).

The Council plays as well a relevant role in the field of judicial selection and until the setting up of the School for the Judiciary it also played an essential part in judicial training, as in Italy no school for the judiciary existed until 2012: this topic has already been dealt with (see above, Paragraph 12).

 

 

(IV)

JUDICIAL LIABILITIES:

INTERNATIONAL STANDARDS AND THE ITALIAN EXPERIENCE

 

21. International Standards on Judicial Liabilities.

 

The topic of judicial liabilities is more and more under the attention of international bodies, as it is witnessed by references in many documents, declarations and recommendations. The “Basic Principles on the Independence of the Judiciary,” elaborated by the United Nations in 1985 is the first document of this kind. 

Article 2, for instance, provides for that “The judiciary shall decide matters before them impartially, on the basis of facts and in accordance with the law, without any restrictions, improper influences, inducements, pressures, threats or interferences, direct or indirect, from any quarter or for any reason.” Article 6 states “The principle of the independence of the judiciary entitles and requires the judiciary to ensure that judicial proceedings are conducted fairly and that the rights of the parties are respected.” According to Article 8, judges “shall always conduct themselves in such a manner as to preserve the dignity of their office and the impartiality and independence of the judiciary.”

       A whole section is dedicated to “Discipline, Suspension and Removal.” Article 17 safeguards the “right to a fair hearing”; it provides as well that “The examination of the matter at its initial stage shall be kept confidential, unless otherwise requested by the judge.” According to Article 19 “All disciplinary, suspension or removal proceedings shall be determined in accordance with established standards of judicial conduct.” Finally, Article 20 states that “Decisions in disciplinary, suspension or removal proceedings should be subject to an independent review. This principle may not apply to the decisions of the highest court and those of the legislature in impeachment or similar proceedings.”

       At the European level, the above mentioned Recommendation No. R (2010) 12 of the Council of Europe devotes a whole Chapter to the issues of “Duties and Responsibilities” of Judges. Among these Articles, some specifically concern Liability and disciplinary proceedings.

       Main duties of judges are:

·      the protection of the rights and freedoms of all persons equally, respecting their dignity in the conduct of court proceedings (Article 59);

·      independence and impartiality in all cases (Article 60);

·      the duty to adjudicate on cases which are referred to them; withdrawing from a case or declining to act are allowed only where there are valid reasons defined by law, and not otherwise (Article 61);

·      managing cases with due diligence and within a reasonable time (Article 62);

·      giving clear reasons for their judgments in language which is clear and comprehensible (Article 63);

·      encouraging parties, in appropriate cases, to reach amicable settlements (Article  64);

·      regularly updating and developing their proficiency (Article 65).

 

As far as liability and disciplinary proceedings are concerned, Article 66 provides for that “The interpretation of the law, assessment of facts or weighing of evidence carried out by judges to determine cases should not give rise to civil or disciplinary liability, except in cases of malice and gross negligence.”

Another fundamental rule is enshrined in Article 67, according to which any direct lawsuit by people against judges is forbidden: “Only the state may seek to establish the civil liability of a judge through court action in the event that it has had to award compensation.”

       Disciplinary proceedings should be conducted by an independent authority or a court with all the guarantees of a fair trial and provide the judge with the right to challenge the decision and sanction. Disciplinary sanctions should be proportionate (Article 69). Judges should not be personally accountable where their decision is overruled or modified on appeal (Article 70).

According to Article 71, “When not exercising judicial functions, judges are liable under civil, criminal and administrative law in the same way as any other citizen.” This rule deals somehow with the topic of judicial immunity (see above, Paragraph 17). I have already remarked that almost all legislations in Eastern European countries extensively provide for rules on this topic. The western tradition doesn’t know this kind of guarantee for the independence of judges and international documents are silent on this subject. So, for instance, in Italy, in France, in Spain or in Germany judges are accountable for their actions according to the principles of criminal and civil law, exactly as any other citizen. But I understand very well that in societies where the respect for judges and their independence are still not so deeply rooted, it may seem preferable to protect the judiciary also by these means.

 

 

22. Breach of Discipline in the Framework of Disciplinary Liability of Judges and Prosecutors in Italy.

 

Coming to describe the situation in Italy, Legislative Decree No. 109/2006 (“Rules regulating breaches of discipline by judges and prosecutors, relevant sanctions, and application procedure”) notably changed the previous system[26], as part of the global reform of the judicial system approved by Law No. 150 of 2005. The first chapter of the legislative decree is divided into two sections, one dedicated to breaches of discipline and the other to disciplinary sanctions.

Breaches of discipline can be divided into two categories: on the one hand, cases of breaches committed in the exercise of the judicial functions, and on the other, cases of breaches committed out of court. The substantive rules tend to typify breaches of discipline of judges and prosecutors, both with regard to conducts in court and those out of court, without prescribing any additional closing provisions.

Article one of the above mentioned legislative decree is dedicated to “duties of a judges/prosecutor” and provides for a detailed list of fundamental duties to be complied with by judges and prosecutors, while performing judicial functions. They are basic principles and ethical values for practitioners of the judicial functions, on the basis of studies by legal scholars and case law.

Reference is thus made to the duty of impartiality, propriety, diligence, commitment, confidentiality, balance and respect for the dignity of individuals as the fundamental principles to be complied with when exercising the judicial functions.

Article 2 of the legislative decree sets forth a detailed list of mandatory cases of breaches of discipline in the exercise of the judicial functions, while Article 3 provides for a number of conducts held out of court that amount to breaches of discipline and give rise to disciplinary proceedings.

Given that any interpretation of the law, and the assessment of facts and evidence, can never amount to breaches of discipline, 25 cases are identified amounting to typical breaches committed while exercising the judicial functions.

We could here provide some examples.

·      First of all, any conduct that, contravening the duties of a judge/prosecutor, causes unfair damage or unfair advantage to one of the parties.

·      Other example can be omitting communication to the High Council of the Judiciary on the possible applicability of the circumstances of parental incompatibilities as per Articles 18 and 19 of the law on the judicial status.

·      Furthermore, non-compliance with the obligation to abstain in cases provided for by the law.

·      Conducts that are seriously unfair to the parties, their lawyers, the witnesses or anyone relating to a judge, or to prosecutors or collaborators.

·      Undue interference in the judicial activity of a colleague and omitting communication of the said interference to the head of the judicial office.

·      Serious violations of the law caused by inexcusable ignorance or negligence and the misinterpretation of facts caused by inexcusable negligence.

 

Article 3 of the above legislative decree lists 8 cases of breaches of discipline perpetrated out of court.

Examples are:

·      Using the title of judge/prosecutor to obtain an unfair advantage for oneself or others.

·      Keeping relations to people who are subject to criminal, or other, proceedings assigned to the magistrate concerned.

·      Keeping relations to people who are known to be habitual or professional criminals.

·      Keeping relations to people who have prior convictions for intentional offences and have been sentenced to a term of imprisonment of over three years, or have been

·      imposed a precautionary measure, except when the person has been rehabilitated.

·      Knowingly doing business with one of the above persons.

·      Discharging jobs out of court without the required authorisation of the High Council of the Judiciary.

·      Participating in secret associations or associations whose membership is objectively incompatible with the exercise of judicial functions.

·      Registration or systematic and continuing participation in political parties, or involvement in the activities of individuals working in the economic or financial sector who can condition the exercise of their functions or in any case jeopardise the image of a judge/prosecutor.

 

 

23.   Disciplinary Sanctions for Judges and Prosecutors in Italy.

 

The second section of the legislative decree sets the sanctions for breaches of discipline. The law provides for different types of sanctions, which are adapted to the individual breaches of discipline described above. The law, in fact, introduces the criterion of tale crimen talis poena, as a consequence of the typification of the breaches.

The various sanctions are:

a.   warning, which formally invites the judge/prosecutor to comply with his duties;

b.   censure, which is a formal statement of disapproval;

c.   loss of seniority, which cannot be of less than two months and more than two years;

d.   temporary incapacity to exercise an directive (head of court) or semidirective (head of section) position, which cannot be for less than six months and more than two years;

e.   suspension from functions, which is the suspension from the functions, the salary, and the judge/prosecutor is placed out of the rolls of the Judiciary;

f.    removal from office, with the termination of employment.

There is also the accessory sanction of enforced transfer that a disciplinary judge can apply when imposing a sanction stricter than a warning. Such additional sanction is always adopted in given specific cases identified by law. An enforced transfer can also be ordered as a precautionary and temporary measure when there is circumstantial evidence of the breach of discipline and there are reasons of particular urgency.

 

 

24.   Disciplinary Proceedings for Judges and Prosecutors in Italy.

 

Disciplinary proceedings are judicial in nature and are regulated by the rules of the code of criminal procedure, in view of their compatibility. The competent authority is the Disciplinary Division of the C.S.M., made up of six members.

According to Statute No. 44 of 28th March 2002, members of this Section are:

·        The Vice President of the C.S.M., who chairs this Section,

·        One of the members elected by the Parliament,

·        One member elected from among the judges or prosecutors of the Supreme Court of Cassation,

·        One member elected from among the prosecutors performing their duties before a first instance or an appellate court,

·        Two members elected from among the judges performing their duties within a first instance or an appellate court.

The total number is therefore of six. In case of parity the most favourable solution for the accused judge will prevail.

Disciplinary proceedings are instituted at the initiative of the Minister of Justice and the Prosecutor General attached to the Court of Cassation. Prosecution has been changed from discretionary to mandatory for the Prosecutor General, while it remains discretionary for the Minister. The mandatory nature of prosecution is linked with the choice of typifying breaches of discipline, and is very similar to that within the criminal system, and imposes strict compliance with the principle of legal certainty, so as to avoid uncertainties in law application as much as possible.

The law also provides for a general clause for the disciplinary irrelevance of a conduct should the act be of “scarce importance.” This clause will work on a different level from the Prosecutor General’s authority to set aside a case. In fact, the Prosecutor General has the autonomous power to set aside a case when the act in question does not amount to a breach of conduct, is the subject of an incomplete report, does not fall within any of the typical cases identified by law, or when investigations show that the act was inexistent or not committed.

The decision by the Prosecutor General to set aside the case is transmitted to the Minister of Justice. The latter can request a copy of the case file within ten days of receipt of the measure, and in the subsequent sixty days can ask the President of the Disciplinary Division to set a hearing for discussion, and issue the relevant charges. At the hearing, the functions of public prosecutor are in any case exercised by the Prosecutor General or one of his deputies.

Once the first stage is over, the law provides for the proceedings to be instituted within a year of the notice of the breach, of which the Prosecutor General attached to the Court of Cassation had knowledge following preliminary investigations or a detailed report or communication of the Minister of Justice. Pursuant to the legislative decree, then, within two years of the commencement of the proceedings, the Prosecutor General has to make the conclusive requests, and within two years of the request, the Disciplinary Division of the C.S.M. has to make a decision. The law also stipulates that disciplinary proceedings cannot be instituted ten years after the act was committed.

As from the beginning, notice of the disciplinary proceedings must be given to the accused within thirty days and the accused can be assisted by another judge/prosecutor or a lawyer. Then, investigations are conducted by the Prosecutor General, who makes his requests sending the case file to the Disciplinary Division of the C.S.M. and giving notice thereof to the accused.

If he does not think that he has to request an order setting aside the case, the Prosecutor General issues the charges and asks for a hearing for the oral discussion of the case to be set. The Minister of Justice can intervene in the disciplinary proceedings by requesting investigations, requesting to extend the action instituted by the Prosecutor General to other acts, exercising its authority to issue an integration of the disciplinary charges in the cases instituted by the Prosecutor General, and by asking to change the disciplinary charges in case of actions he has instituted himself, by exercising its authority to make the charges and autonomously ask to set the date of the disciplinary proceedings in all the cases in which he disagrees with the request for acquittal issued by the Prosecutor General.

The discussion of a case within disciplinary proceedings, which occurs by public hearing, consists of hearing the report of one of the members of the Disciplinary Division, gathering ex officio evidence, hearing the reports, inspections, procedures and evidence gathered, as well as the discovery of documents. The Disciplinary Division makes a decision after having heard the parties and the said judgement can be opposed before the Joint Divisions of the Court of Cassation. Once it becomes final it can be reviewed in some exceptional cases provided for by the law.

 

 

25.   Civil Liability for Judges and Prosecutors in Italy.

 

Disciplinary liability is the result of a breach of the functional duties a judge/prosecutor undertakes vis-à -vis the State at the time of appointment. Civil liability, instead, is the liability that a judge/prosecutor undertakes vis-à -vis the parties to the proceedings or other entities, and which results from any mistake or noncompliance affected in the exercise of his/her functions.

The civil liability of judges/prosecutors, which is similar to that of any other public servant, is based on article 28 of the Constitution.

Following the outcome of a referendum which led to the repeal of earlier rules severely limiting cases of civil liability, the issue is now regulated by Law No. 117 of 13th April 1988.

From a substantive viewpoint, this law affirms the principle of the right to compensation for any unfair damage resulting from the conduct, decision or judicial order issued by a judge/prosecutor either with “intention” or “serious negligence” while exercising his/her functions, or resulting from a “denial of justice” (Article 2).

After explaining in detail the notions of “serious negligence” (Article 2, Paragraph 3) and “denial of justice” (Article 3), the law nevertheless clarifies that the activities of interpreting the law and assessing the facts and evidence (Article 2, Paragraph 2) cannot give rise to such liability. In this respect, in any such cases, it is the procedure itself which safeguards the parties, i.e. by resorting to the system of appeals against the order assumed to be defective.

Without prejudice to the fact that in relation to the merits the judicial activity is unquestionable, something can nevertheless be done in respect of a judge’s or prosecutor’s disciplinary liability in cases where–according to the C.S.M. Disciplinary Division’s case law–an exceptional or evident breach of law has been committed, or the judicial function has been exercised in a distorted way.

From a procedural viewpoint, it should be pointed out that the liability for compensating damage rests with the State, against which an injured party may take legal action (Article 4). If the State’s liability is established, then the State may, subject to certain conditions, in turn claim compensation from the judge/prosecutor (Article 7).

A liability action and relevant proceedings must comply with specific rules.

The most important of these rules provides for liability proceedings to be subject to:

·      the lodging of all ordinary means of appeal, including any other remedy for amending or revoking the measure that is assumed to have been the cause of unfair damage;

·      the existence of a deadline for exercising such action (Article 4);

·      a decision on the action’s admissibility, for the purposes of checking the relevant prerequisites;

·      observance of the terms;

·      a preliminary assessment of the evidence to see whether the charges are grounded (Article 5);

·      and the judge’s power to intervene in the proceedings against the State (Article 6).

In order to guarantee the transparency and impartiality of the proceedings, the system prescribes for the jurisdiction over such proceedings to be transferred to a different judicial office (Articles 4 and 8), to ensure that the proceedings are not assigned to a judge of the same office as the office of the judge/prosecutor whose activity is assumed to have given rise to an unfair damage. The criteria for establishing the competent judge have been amended by Law No. 420 of 2nd December 1998, with the specific objective to avoid any risk of prejudice while such cases are decided.

 

 

26.   Criminal Liability for Judges and Prosecutors in Italy.

 

From a criminal viewpoint, in their capacity as public officials, judges and prosecutors can be made to account for offences committed in the exercise of their functions (e.g. abuse of office, corruption, corruption connected with judicial duties, extortion, failure to perform official duties, etc.).

Parallel to this, they may act, in conjunction with the State, in their capacity as victims of a crime committed by private individuals against the public administration.

In this respect, it should be noted that under the aforesaid Law No. 420 of 2nd December 1998, the rules governing jurisdiction over such proceedings have radically been reformed. In addition to transparency, the aim of this reform was to ensure a judge’s maximum autonomy of decision when called on to decide cases in which other colleagues are involved for whatever reason.

Significant changes were made to the rules of criminal procedure (Articles 11 of the code of criminal procedure and 1 of the implementing rules of the code of criminal procedure), by creating a mechanism that establishes the competent judge to avert the risk of “reciprocal” (or “crossed”) jurisdictions. The same mechanism is in force in the civil actions when a magistrate is a party thereof, and is limited to actions regarding restitutions and compensation of damage caused by the offence.

 


27. Excerpts from the Italian Constitution (Provisions Concerning the Judiciary).

 

 

PART II

RULES CONCERNING THE ORGANISATION

OF THE ITALIAN REPUBLIC

 

Title IV

The Judiciary

 

Section I

Jurisdictional Organisation

 

 

PARTE SECONDA

ORDINAMENTO DELLA REPUBBLICA

 

 

Titolo IV

La Magistratura

 

Sezione I

Ordinamento giurisdizionale

 

 

Article 101 [Judicial Power]

(1)Justice is rendered in the name of the people.

(2)Judges are subject only to the law.

 

 

Articolo 101

(1)La giustizia è amministrata in nome del popolo.

(2)I giudici sono soggetti soltanto alla legge.

 

 

Article 102 [Judges]

(1)The duties of the judiciary are carried out by permanent judges appointed and governed according to the provisions laid down in the statutes concerning the Judiciary.

(2)No special judges may be appointed, but specialised sections may be set up and attached to the normal judicial organs for dealing with specific matters, and properly qualified citizens who are not members of the judiciary may participate in them.

(3)The law lays down the reasons and the manner in which private persons participate directly in the administration of Justice.

 

 

Articolo 102

(1)La funzione giurisdizionale è esercitata da magistrati ordinari istituiti e regolati dalle norme sull’ordinamento giudiziario.

(2)Non possono essere istituiti giudici straordinari o giudici speciali. Possono soltanto istituirsi presso gli organi giudiziari ordinari sezioni specializzate per determinate materie, anche con la partecipazione di cittadini idonei estranei alla magistratura.

(3)La legge regola i casi e le forme della partecipazione diretta del popolo all’amministrazione della giustizia.

 

 

Article 103 [Council of State, Court of Accounts, Military Tribunals]

(1)The Council of State and other jurisdictions concerned with administrative justice safeguard the legitimate interests of the citizens against public administration; in particular matters, provided for by law, they decide also upon subjective rights.

(2)The Court of Accounts has jurisdiction over matters of public accounts and such other questions as are specified by law.

(3)Military Tribunals in wartime have jurisdiction as authorised by law. In peacetime their jurisdiction is limited to military offences committed by members of the Army.

 

 

Articolo 103

(1)Il Consiglio di Stato e gli altri organi di giustizia amministrativa hanno giurisdizione per la tutela nei confronti della pubblica amministrazione degli interessi legittimi e, in particolari materie indicate dalla legge, anche dei diritti soggettivi.

(2)La Corte dei conti ha giurisdizione nelle materie di contabilità pubblica e nelle altre specificate dalla legge.

(3)I tribunali militari in tempo di guerra hanno la giurisdizione stabilita dalla legge. In tempo di pace hanno giurisdizione soltanto per i reati militari commessi da appartenenti alle Forze armate.

 


 

 

Article 104 [Independent Judiciary]

(1)The Judiciary is an autonomous body. It is not subject to any other power of the State.

(2)The President of the Republic is Chairman of the High Council for the Judiciary.

(3)The Chief Justice of the Supreme Court of Cassation and the Chief Public Prosecutor of the same Court are ipso jure members of it.

(4)As for the other members, two-thirds of them are elected by all regular judges of different categories, and one-third by Parliament in joint session, selection being made among professors of law faculties and lawyers of at least fifteen years standing.

(5)The Council elects an Assistant Chairman from among the members elected by Parliament.

(6)The elected members hold office for four years and are not immediately re-eligible.

(7)While they are in office they may not be registered on the Rolls of the legal profession, nor be members either of Parliament or of a Regional Council.

 

 

Articolo 104

(1)La magistratura costituisce un ordine autonomo e indipendente da ogni altro potere.

(2)Il Consiglio superiore della magistratura è presieduto dal Presidente della Repubblica.

(3)Ne fanno parte di diritto il primo presidente e il procuratore generale della Corte di cassazione.

(4)Gli altri componenti sono eletti per due terzi da tutti i magistrati ordinari tra gli appartenenti alle varie categorie, e per un terzo dal Parlamento in seduta comune tra professori ordinari di università in materie giuridiche ed avvocati dopo quindici anni di esercizio.

(5)Il Consiglio elegge un vicepresidente fra i componenti designati dal Parlamento.

(6)I membri elettivi del Consiglio durano in carica quattro anni e non sono immediatamente rieleggibili.

(7)Non possono, finché sono in carica, essere iscritti negli albi professionali, né far parte del Parlamento o di un Consiglio regionale.

 

Article 105 [High Council for the Judiciary]

According to the provisions of the statutes governing the Judiciary, the High Council for the Judiciary is entrusted with the appointment, assignment, transfer, promotion, and disciplinary measures concerning Judges and Public Prosecutors.

 

 

Articolo 105

 Spettano al Consiglio superiore della magistratura, secondo le norme dell’ordinamento giudiziario, le assunzioni, le assegnazioni ed i trasferimenti, le promozioni e i provvedimenti disciplinari nei riguardi dei magistrati.

 

Article 106 [Qualification]

(1)The selection of Judges and Public Prosecutors is made through a competitive examination.

(2)Statutes concerning the Judiciary may provide for the possibility for honorary magistrates to be appointed, even by election, to perform all the duties attributed to individual Judges.

(3)On the proposal of the High Council for the Judiciary, law professors and lawyers of at least fifteen years standing and registered in the special Rolls entitling them to practice in the senior courts may be appointed as Justices of the Supreme Court of Cassation for exceptional merits.

 

 

Articolo 106

(1)Le nomine dei magistrati hanno luogo per concorso.

(2)La legge sull’ordinamento giudiziario può ammettere la nomina, anche elettiva, di magistrati onorari per tutte le funzioni attribuite a giudici singoli.

(3)Su designazione del Consiglio superiore della magistratura possono essere chiamati all’ufficio di consiglieri di cassazione, per meriti insigni, professori ordinari di università in materie giuridiche e avvocati che abbiano quindici anni d’esercizio e siano iscritti negli albi speciali per le giurisdizioni superiori.

 


 

 

Article 107 [Disciplinary Measures]

(1)Judges cannot be removed from office. They may not be dismissed or suspended from their duties, nor transferred to other courts or duties, save by a decision of the High Council for the Judiciary taken for reasons and with guarantees for their defence laid down by the statutes concerning the Judiciary or with their own consent.

(2)The Minister of Justice is entitled to start disciplinary action.

(3)Judges differ from one another only on account of their different functions.

(4)The Public Prosecutor is safeguarded by the guarantees laid down in the statutes concerning the Judiciary.

 

 

Articolo 107

(1)I magistrati sono inamovibili. Non possono essere dispensati o sospesi dal servizio né destinati ad altre sedi o funzioni se non in seguito a decisione del Consiglio superiore della magistratura, adottata o per i motivi e con le garanzie di difesa stabilite dall’ordinamento giudiziario o con il loro consenso.

(2)Il Ministro della giustizia ha facoltà di promuovere l’azione disciplinare.

(3)I magistrati si distinguono fra loro soltanto per diversità di funzioni.

(4)Il pubblico ministero gode delle garanzie stabilite nei suoi riguardi dalle norme sull’ordinamento giudiziario.

 

Article 108 [Court Structure]

(1)The provisions governing the Judiciary as well as every judicial office are established by statutes.

(2)The law ensures the independence of the judges of special Courts, of Public Prosecutors attached to these Courts, as well as of other persons taking part in the administration of justice.

 

 

Articolo 108

(1)Le norme sull’ordinamento giudiziario e su ogni magistratura sono stabilite con legge.

(2)La legge assicura l’indipendenza dei giudici delle giurisdizioni speciali, del pubblico ministero presso di esse, e degli estranei che partecipano all’amministrazione della giustizia.

 

Article 109 [Judicial Police]

The Judicial Police are at the direct disposal of the Judiciary.

 

 

Articolo 109

L’autorità giudiziaria dispone direttamente della polizia giudiziaria.

 

Article 110 [Minister of Justice]

Without prejudice to the competence of the High Council for the Judiciary, the organization and operation of services concerning the administration of justice are entrusted to the Minister of Justice.

 

 

Articolo 110

Ferme le competenze del Consiglio superiore della magistratura, spettano al Ministro della giustizia l’organizzazione e il funzionamento dei servizi relativi alla giustizia.

 

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[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: http://www.giacomooberto.com/wien/vortrag.htm).

[2] Oberto, Les garanties de l’impartialité des juges et de l’indépendance de la justice, op. cit.

[3] Gorla, Della posizione costituzionale dell’ordinamento giudiziario. Per l’autonomia della magistratura, in Ammatuna, Calamandrei, Candian, et. al., Per l’ordine giudiziario, op. cit., p. 47: “The judge cannot be placed on the same level as other public servants. Nor, in a misguided spirit of egalitarianism and of levelling down of the best and the most responsible, may other public servants aspire to be compared with the judge. The judge is, or should be, by virtue of his very functions, placed above the entire scale of political values, at least in a society that seeks to apply its legal system correctly, and not on the basis of the results of individual cases, which constitutes abuse. Such a levelling down would destroy the very basis of the legal system, inasmuch as it would fail to recognise the dignity of one who personifies the highest requirements of the law, as long as, in the constitutions of the civil population, he directly personifies one of the constitutional organs (which is not the case with ordinary public servants). Judges should be regarded as being set apart from the ordinary run of public servants because they are not in reality dependants of the state but are themselves the state in one of its constitutional organs; they are the living symbol, not of the ‘dependent’ public servant, but of autonomy, of the exercise of personal rights, and their very life should be autonomy in every sense of the word.”

[4] See on this point Bonomo, l’indipendenza “interna” della magistratura, in Rodriguez-Arribas, Sgroi, Abravanel, et al., L’indipendenza della giustizia, oggi, Judicial Independence, Today, Liber amicorum in onore di Giovanni E. Longo, op. cit., p. 55-59. See also Kelsen’s opinion, according to which it is impossible to apply to judges the hierarchical order which is typical of administrative bodies (Kelsen, Teoria generale del diritto e dello stato, cit., p. 280).

[5] I am indebted for these observations to Bruti Liberati, Le rôle du Conseil Supérieur de la Magistrature comme garant de l’indépendance de la magistrature et dans l’organisation des juridictions (text sent in digital version by its author).

[6] For a comparative study of the systems of recruitment, appointment and training of judges in the countries belonging to the International Association of Judges see International Association of Judges - “Justice in the WorldFoundation, Traité d’organisation judiciaire comparée, I, Zurich-Brussels, 1999. On this topic see also Borgna and Cassano, Il giudice e il principe. Magistratura e potere politico in Italia e in Europa, Rome, 1997, p. 107 et seq.; Oberto, Verardi and Viazzi, Il reclutamento e la formazione professionale dei magistrati in Italia e in Europa, in Dogliotti, Figone, Oberto, et al., L’esame di uditore giudiziario, Milan, 1997, p. 41 et. seq.; Oberto, Recrutement et formation des magistrats en Europe : une étude comparative, Strasbourg, 2003; Id., La formazione dei magistrati alla luce dei principi internazionali e dei profili di diritto comparato, Padova, 2008.

On the system of recruitment of Italian judges, see Oberto, Recrutement, formation et carrière des magistrats en Italie. The article has been available since 29 June 1999 on the following web page:

http://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: http://www.giacomooberto.com/csm/rapport.htm); Bartole, Per una valutazione comparatistica dell’ordinamento del potere giudiziario nei paesi dell’Europa continentale, in Studium juris, 1996, p. 531 et seq.; Dogliotti, Figone, Oberto et al., L’esame di uditore giudiziario, op. cit; Caianiello, Formazione e selezione dei giudici in una ipotesi comparativa, in Giurisprudenza italiana, 1998, p. 387 et seq. For an examination of the judiciary systems of Europe see the Council of Europe publication under the title L’Europe judiciaire, Strasbourg, 2000 (the book also contains–in relation to some countries–information on the recruitment and training of judges). Of course, mention has to be done here also to European Commission for the Efficiency of Justice (Cepej), Evaluation of European Judicial Systems, available at the following web site: http://www.coe.int/t/dghl/cooperation/cepej/evaluation/default_en.asp. 

[7] Information on the Judicial Appointments Commission is available on the following web site: http://jac.judiciary.gov.uk; for the Judicial Study Board see: http://www.jsboard.co.uk/privacy.htm.

[8] For further details on this topic see Oberto, Recrutement et formation des magistrats en Europe : une étude comparative, cit.; Id., La formazione dei magistrati alla luce dei principi internazionali e dei profili di diritto comparato, cit.

[9] For further details on this topic see Oberto, Recrutement et formation des magistrats en Europe : une étude comparative, cit.; Id., La formazione dei magistrati alla luce dei principi internazionali e dei profili di diritto comparato, cit.

[10] See Oberto, Recrutement et formation des magistrats en Europe : une étude comparative, cit.; Id., Les enjeux de la formation des magistrats. Organisation institutionelle de la formation, in Rivista di diritto privato, 1997, p. 214 - 225 (since 16 March 1997 the article is also available on the following web page: http://giacomooberto.com/enjeux/rapport.htm; Id., Recrutement, formation et carrière des magistrats en Italie (the article has been available since 29 June 1999 on the following web page: http://www.giacomooberto.com/tbilissi.htm).

On the subject of judicial training in Italy see also Consiglio Superiore della Magistratura, Il magistrato; dal reclutamento alla formazione professionale. Esperienze in Italia e nel mondo, in Quaderni C.S.M., Roma, 1982; Viazzi, Il reclutamento e la formazione professionale dei magistrati: una questione cruciale di politica istituzionale, in Questione giustizia, 1984, p. 307 et seq. ; Di Federico, Preparazione professionale degli avvocati e dei magistrati: discussione su una ipotesi di riforma, Padova, 1987; Parziale, Il reclutamento e la formazione professionale del magistrato, in Documenti giustizia, 1993, p. 1561 et seq.; Civinini, L’esperienza della formazione permanente nei lavori del C.S.M., in Documenti giustizia, 1997, c. 2543 et seq.; Verardi, Il reclutamento e la formazione dei magistrati e degli avvocati, in Questione giustizia, 1997, p. 91 et seq.; Oberto, Verardi and Viazzi, Il reclutamento e la formazione professionale dei magistrati in Italia e in Europa, in Dogliotti, Figone, Oberto et al., L’esame di uditore giudiziario, Milano, 1997, p. 41 et seq.; Oberto, Les enjeux de la formation des magistrats, Organisation institutionelle de la formation, op. cit.; Verardi, Spunti per una storia della formazione permanente, paper submitted to the seminar organised by the High Council for the Judiciary of Italy on the theme “Training the Trainers” (formazione dei formatori), Rome, 21-23 June 1999; Verardi, Il CSM e la formazione dei magistrati: verso una scuola o un mero servizio di aggiornamento professionale?, in Questione giustizia, 1999, No. 2.

[11] For further details on this topic see Oberto, Recrutement et formation des magistrats en Europe : une étude comparative, cit.; Id., La formazione dei magistrati alla luce dei principi internazionali e dei profili di diritto comparato, cit.

[12] For further details on this topic see Oberto, Recrutement et formation des magistrats en Europe : une étude comparative, cit.; Id., La formazione dei magistrati alla luce dei principi internazionali e dei profili di diritto comparato, cit.

[13] On this topic see Kriegk, La limitation dans le temps aux fonctions des chefs de juridiction: une entorse aux principes fondamentaux, in Bulletin of the International Association of Judges (Belgium), December 1999, p. 10-12.

[14] See Bruti Liberati, Le rôle du Conseil Supérieur de la Magistrature comme garant de l’indépendance de la magistrature et dans l’organisation des juridictions, op. cit.; Oberto, L’autonomie de la justice dans sa gestion: l’expérience italienne (the article has been available since 9 November 2000 on the following web page:

http://www.giacomooberto.com/zurigo/rapport.htm).

[15] For example, to be assigned to a position in the court of appeal (judge of the court of appeal or deputy principal public prosecutor at a court of appeal), one must have attained the appeal grade. But an appeal judge or a judge who has been declared competent to sit in the Court of Cassation may continue to occupy his current post indefinitely.

[16] Bruti Liberati, Le rôle du Conseil Supérieur de la Magistrature comme garant de l’indépendance de la magistrature et dans l’organisation des juridictions, op. cit.

[17] See Oberto, Judicial Independence in Countries of Central and Eastern Europe: an “Italian” Standpoint, available since 5 May 2000 on the following web page: http://giacomooberto.com/prague/sommario.htm. 

[18] The document is available on the following web page:  https://wcd.coe.int/ViewDoc.jsp?Ref=CCJE(2001)OP1&Sector=secDGHL&Language=lanEnglish&Ver=original&BackColorInternet=FEF2E0&BackColorIntranet=FEF2E0&BackColorLogged=c3c3c3.

[19] On the topic of the Italian C.S.M. see Santosuosso, Il Consiglio superiore della magistratura, Milano, 1958; Bartole, Autonomia e indipendenza dell’ordine giudiziario, Padova, 1964, p. 4 et seq.; Volpe, Ordinamento giudiziario generale, in Enciclopedia del diritto, XXX, Milano, 1980, p. 836 et seq.; Guarnieri, L’indipendenza della magistratura, Padova, 1981; Bonifacio and Giacobbe, La magistratura, in Commentario della costituzione edited by Branca, Bologna, 1986, p. 76 et seq.; Pizzorusso, L’organizzazione della giustizia in Italia, Torino, 1985, p. 38 et seq.; G. Zagrebelksy, Il potere normativo del Consiglio Superiore della Magistratura, in La giustizia tra diritto e organizzazione, Torino, 1987, p. 183; Di Federico, «Lottizzazioni correntizie» e «politicizzazione» del C.S.M.: quali rimedi?, in Quaderni costituzionali, 1990, X, No. 2, p. 279 et seq.; G. Verde, L’amministrazione della giustizia fra Ministro e Consiglio Superiore, Padova, 1990; Onida, La posizione costituzionale del Csm e i rapporti con gli altri poteri, in Magistratura, Csm e principi costituzionali, Bari, p. 17 et seq.; Devoto, Governo autonomo della magistratura e responsabilità politiche, in Cassazione penale, 1992, p. 2538 et seq.; G. Ferri, Il Consiglio Superiore della Magistratura e il suo Presidente, Padova, 1995; Consiglio Superiore della Magistratura, Il sistema giudiziario italiano, Roma, 2001.

[20] See Art. 16, Statute No. 195 of 24 March 1958.

[21] On the composition and functioning of the C.S.M. see Statute No. 195 of 24 March 1958, as well as the Presidential Decree No. 916 of 16 September 1958.

[22] As provided for by Statute No. 44 of 28 March 2002, which has reduced the total number of the C.S.M. members from 33 to 27.

[23] See as well Statute No. 195/1958 and Presidential Decree No. 89 of 12 April 1976, Statute No. 74 of 12 April 1990 and Presidential Decree No. 132 of 1st June 1990, as well as the already mentioned Statute No. 44 of 28 March 2002.

[24] One vote was expressed for one of the candidates competing for the two positions reserved for judges/prosecutors attached to the Court of Cassation in the national constituency; one list vote and only one prospective preference were expressed in the framework of one of the four roughly same‑sized constituencies, the first two of which elected four members and the third and fourth, five members each. The four constituencies were set up by assigning the 26 districts of the Court of Appeal by ballot. The composition of constituencies thus varied from election to election, and the system prevented the consolidation of constituencies referring to homogeneous geographical areas. The four main districts (Milan, Rome, Naples and Palermo) had, however, to belong to different constituencies.

[25] See in particular Art. 19 of Statute No. 195/1958 and Art. 4 of the C.S.M.’s internal regula­tions.

[26] On this topic see Oberto, Judicial Ethics in the Italian Legal System, in Rivista di diritto privato, 1996, p. 393 et seq.; also V. Zagrebelsky, La responsabilità disciplinare dei magistrati: alcuni aspetti generali, in Rivista di diritto processuale, 1975, p. 439 et seq.; Giuliani and Picardi, La responsabilità del giudice dallo Stato liberale allo Stato fascista, in Foro italiano, 1978, IV, c. 213 et seq.; Vigoriti, Le responsabilità dei giudici, Bologna, 1984, p. 76 et seq.; Pajardi, Deontologia e responsabilità dei magistrati, Milano, 1985; Pizzorusso, Izzo and Fiandanese, Lo stato giuridico dei magistrati ordinari, Roma, 1986, p. 349 et seq.; Mele, La responsabilità disciplinare dei magistrati, Milano, 1987; Cicala, Il governo della Magistratura: I profili disciplinari, in Magistratura Indipendente, 1995, No. 3, p. 8; Ricciotti and Mariucci, Deontologia giudiziaria, I, Padova, 1995.