INTERNATIONAL  STANDARDS

IN   THE  FIELD   OF  JUDICIAL   TRAINING  –

THE   ITALIAN  EXPERIENCE (*)

 

Giacomo Oberto

 

Judge – Court of Turin (Italy)

Deputy Secretary General – International Association of Judges

 

Former Director of the Scientifical Committee of the Higher Judicial Council of Italy

for the On-the-Job Training of Judges

 

Member of the Steering Committee of the School of Specialisation for the Legal Professions

of the Turin University (Italy)

 

Table of Contents :

International Documents on the Subject of Judicial Training.

Right to Judicial Training and Judicial Training Structures.

Access to the Ordinary Judiciary in Italy.

Initial Training for the Judiciary in Italy.

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

 

 

1. International Documents on the Subject of Judicial Training.

The subject of judicial training ^[1] 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” (cf. 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, 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.

 

2. Right to Judicial Training and Judicial Training Structures.

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

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

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

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

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

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

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

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 Higher Council, even though some representatives of other legal professions should be included (university professors at law schools, attorneys, notaries). The managing committee should be responsible for the setting up of yearly training programmes, as well as for the detailed programme of each training course for judges. They should appoint experts to teach as well as to lead practical workshops and discussions inside each training course. The panel should be accountable to the Higher Council and should draw up an yearly detailed report on the training activity for judges.

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

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

 

3. Access to the Ordinary Judiciary in Italy.

Access to the profession of judge and 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 few 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 sided by a computerised preliminary test on the subject matters dealt with in the writ­ten exam.

The computerised preliminary test was then subsequently set aside with­in the new framework of the public examination developed by Act no. 48/2001, by which, instead, the figure of an “external examiner” was consti­tuted to expedite the correction procedure of the tests. The computerised preliminary tests will be definitely set aside as envisaged when the regulation imple­menting the rules on external examiners is adopted.

The competitive public examination for judges and prosecutors consists of three written exams (on: civil, criminal and administrative law) and an oral exam on the main legal subjects (see article 123 ter of the statute regulating the judicial system).

The competitive examination for judges/prosecutors is published by the Minister of Justice, pursuant to a deci­sion of the Higher Judicial Council, which sets the number of positions. The examining committee, appointed by the Higher Council, is chaired by a judge/prosecutor with the rank and function of Court of Cassation judge/prosecutor. It consists further of twenty‑two judges/prosecutors with the rank no lower than that of an appeal court judge/prosecutor and eight uni­versity law professors. The classification drawn up by the commission, which is based on the total sum of the votes given to each candidate in each individual test, is then approved by the Higher Council.

 

4. 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 Presidential Decree of 17th July 1998).

The length of the training is decided by the Higher Council and is normally not less than twelve months. The training consists of attending a judicial office and co‑operating in the judicial activity performed by other judges and pros­ecutors in the civil and criminal sector either as single or associate judges or alternatively as public prosecutors.

Italy is one of the few countries in Europe without an academy or school for the judiciary. This means that the training is directly organised, co‑ordinated and controlled by the Higher Council, with the help of peripheral joint bodies (judicial councils and district commissions) and available learned judges and prosecutors (collaborators and assignees). The training aims at assuring the professional training of trainee judges/prosecutors and checking their fitness to exercise the judicial functions.

On the specific issue of initial training, the Higher Council’s activity in organising study meetings reserved for trainee judges and prosecutors should also be men­tioned. The judicial councils and the district reference entities in charge of local training are also involved in this activity.

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

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

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

According to the Presidential Decree of 1998 each trainee must keep, in a sort of “exercise-book”, a detailed record of all the activities carried out during each week of training. This document has to be signed by the judges/prosecutors responsible for each relevant period of training. At the end of the period of training the book must be given to the “collaborator” judges, who will draft a report on each trainee. Files and reports are then transmitted to the Higher Council, which is responsible for the final assessment affecting the future of the trainees.

 

5. 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 Italy does not have an autonomous institution (Academy, or School, or Training Institute) especially in charge of providing training for judges/prosecutors. This lamentable situation is 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 Higher Council. It is therefore up to the Higher Council to provide for this activity. The Council has set up a special commission, which is assisted by a Scientifical Committee composed of 16 members (12 judges/prosecutors and 4 university professors). The task of this committee is 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 are yearly in the number of 40-50. Each training course is usually addressed to about 100 judges/prosecutors. Attendance to these conferences has been recently opened also to some lawyers, upon invitation by the Higher Council. Subjects dealt with are the most various: international and comparative law, civil law, civil procedure, penal law and criminal procedure, family and juvenile law, commercial law, labour law, computer and law, etc.

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

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

 

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* Paper drafted for the International Forum for Training for the Judiciary – First International Conference, Jerusalem (Israel), March 17-21, 2002.