Accountability e Transparência da Justiça Civil - Ed. 2019

Accountability And Transparency In The Course Of Civil Justice In Italy - Parte II. Perspectivas Nacionais

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Luca Passanante

Introduction

This paper is aimed at providing a short, but possibly comprehensive, outline of accountability and transparency in civil justice in Italy.

It is divided into four main parts: the first one deals with the institutional profile of independence and autonomy of the judiciary. The second part concerns mainly the civil and disciplinary accountability; the third addresses the problem of transparency along the civil process and then focuses on judicial decisions. The last part deals with the problem of internal and external evaluation of the civil justice system.

In the following paragraphs we will see how nowadays – mainly thanks to principles set forth in the republican Constitution, but also to technical rules placed in the code of civil procedure 1 – transparency and accountability are well established features of the Italian civil justice system and work together, in different degrees, in quite a good balance. Such a context – despite the famous inefficiency of Italian civil justice – makes it possible that civil litigation is dealt with in a reliable and trustable way 2 .

However, transparency and accountability of civil justice in Italy have not always been the same. In the past, particularly before the Constitution of Italian Republic came into force (1948), the state of civil justice and of the judiciary, from the points of view here examined, was substantially different 3 .

It is neither possible, nor desirable to develop in a few pages such a complex topic, that would require a much deeper analysis. Nevertheless, this “historical warning” is important and shouldn’t be underestimated.

1. Institutional profile

The institutional profile mainly involves the two fundamental concepts of independence and autonomy of the judiciary 4 .

However, other (not less) important features concerning the judiciary – such as the nature of the judiciary itself or the pivotal principle of the natural Judge pre-established by law, the principle of impartiality of the Judge and the principle of its irremovability – are relevant enough to deserve to be briefly discussed hereinafter.

1.1. What is the judiciary?

Before going deeper in examining the concepts of independence and autonomy, it seems appropriate to report shortly an interesting debate developed in the Italian Parliament about the nature of the judiciary, a debate that is impossible to understand if not conveniently placed in the cultural climate of the birth of Italian Constitution, distinguished by a strong scepticism towards the judiciary. The Judges, as a matter of fact, especially at the highest ranks, were firmly supporting the fascist regime, which – as it is well known – has been strongly repudiated by the Italian Constitution and the democratic State. It’s important to note that the passive acceptance by the judiciary of the fascist regime was also due to the fact that the totalitarian government used to purge – it happened at least twice: in 1923 and in 1926 – the judiciary of that Judges, who were reluctant to obey to the fascist power 5 . Anyway, the compliant attitude of the Judges (the ones allowed to remain) toward the fascist regime inspired a common sense of mistrust, which raised especially in the left wing MPs serious doubts in order to name and recognize the judiciary as a power of the State in the republican Constitution.

Other doubts about the opportunity of recognizing the judiciary as a State power derived from the common idea that the constitutional status of “power” should be granted only to authorities that represent the popular sovereignty, and the judiciary lacked this legitimacy.

All these factors led the Parliament to adopt an intermediate solution, now expressed by the wording of the art. 104 of the Constitution, according to which the judiciary is not defined as a «State power», but – in a somehow inconsistent way – as a «body independent and autonomous from other State powers» (par.1) 6 .

This means that, although the judiciary cannot properly be named a “state Power”, to it has been indirectly acknowledged the dignity of other State powers, from which it must be kept independent and autonomous.

The Constitutional Court since the Seventies of last century has recognized the judiciary the nature of a “widespread power” (Corte Cost. 231/1975) 7 : the essence of this definition consists in the absence of hierarchical relationship between Judges and perfectly matches with the principle set forth by art. 107, par.3 of Italian Constitution, according to which «the Judges are distinguished from each other only by different functions» (and not by a different rank).

In the following paragraphs we will see how this fundamental principle is realized and completed by other norms, either in the Constitution, or in ordinary Acts of Parliament.

1.2. The principle of «independence» and «autonomy» of the judiciary

The institutional profile, as seen before, involves two fundamental concepts: independence and autonomy of the judiciary.

Independence concerns the position of the single Judge when deciding cases (although it shouldn’t be confused with the different concept of impartiality: see infra, par.1.7) 8 . Autonomy concerns the judiciary, as a body, in respect of other powers of the State, such as the legislative and the executive. In other words we can say that, while independence concerns the function, autonomy concerns the structure, the institutional “position”, of the judiciary.

Although the Italian Constitutional Court, in some past decisions, has underlined the difference between these two concepts, nowadays it is commonly recognised, either in case law, or in literature, that they compose a hendiadys and both express the constitutional need of external and internal independence of the judiciary 9 .

As a matter of fact, the two concepts are inseparable: the autonomy of the judiciary from the other State powers is a necessary requirement and is strictly connected to the independence of the judicial function.

We can now distinguish, as it is common in many legal systems, between an external and an internal independence 10 : the first refers to the relationship between the judiciary and other State powers. As we will see hereinafter, this principle is realized mainly by means of the Superior Council of the Judiciary (Consiglio Superiore della Magistratura, C.S.M. in short), that is a committee of self-government of the judiciary, which composition and functioning guarantee from a structural point of view the autonomy of the judiciary from other State powers (see par.2.3).

The internal independence, on the contrary, refers to the relationship between different Judges or Courts 11 . This principle, which is not openly set forth by the Constitution, emerges clearly from other principles, in particular the one according to which «Judge is only subject to law» (see infra par.2.4), and the one stating that Judges are distinguished from each other only by different functions (see supra par.2.1). On one side, the lack of a formal binding effect of the judicial precedents and, on the other side, the absence of a proper hierarchical relationship between Judges belonging to different ranks (such as Judges of inferior/superior Courts) are both effective means in order to achieve the internal independence of the judiciary. However, in respect to internal independence some problems might arise nowadays, because of the stronger effect of judicial precedents, supported by means of new procedure rules, come into force in the last 13 years, which encourage civil Judges to follow the judicial precedents, particularly the ones held by the Court of Cassation in Joined Chambers (Sezioni Unite) 12 .

1.3. The Superior Council of the Judiciary (and other boards) as institutional expression of the autonomy principle

After the parenthesis of the fascist regime 13 and after the liberation of the Country 14 , Italy resumed the path towards the fulfilment of the independence of the judiciary, which took place thanks to two very important stages. The first one is represented by the so-called law “Act on the Guarantees for the Judiciary” (“Legge sulle Guarentigie della Magistratura”, approved by the Royal Legislative Decree No. 511 of 1946), which suppressed the relationship of hierarchical dependence that used to bind the public prosecutors to the Minister of justice 15 . The second stage is due to the coming into force of the republican Constitution (1948), which, in this regard, attributed the functions relating to the legal status of Judges to a body that was completely independent of political power and is composed mostly of Judges elected by Judges 16 .

After the Constitution came into force, the Superior Council of the Judiciary (hereinafter also C.S.M.), originally established in 1946, was replaced with the current one, by virtue of the Act of Parliament no. 195/1958 and subsequently reformed with the Act of Parliament n. 695/1975 and n. 44/2002 17 .

The Superior Council of the Judiciary is currently composed as follows:

–By the President of the Republic, who is a member by right, by virtue of his function, and presides over it

–By the First President of the Court of Cassation, who is a member by right, according to the function performed

–By the Attorney General at the Court of Cassation, who is a member by right, by virtue of the function performed

–By 16 Judges: 2 members of the Court of Cassation, 10 members of inferior Courts and 4 public prosecutors in the inferior Courts

–By 8 full professors in legal subjects or lawyers with at least 15 years of practice.

The composition of the Superior Council of the Judiciary is very important to understand its position in the context of constitutional balances 18 : it is, in fact, an institution that, despite designed to ensure the autonomy of the judiciary and its independence from the other State powers, is not entirely free from a connection with political power. This connection, however, does not affect the clear autonomy of the Council. Only one third of the members of the Superior Council of the Judiciary (i.e. 8), in fact, are elected by the Parliament, with particularly high quorums, it being essential that a broad consensus be formed on the names of the candidates 19 . The remaining two thirds (i.e. 16) of the members of the Superior Council of the Judiciary are Judges elected by Judges 20 .

In a nutshell, we can say that only the Superior Council of the Judiciary is entrusted with the adoption of all decisions concerning the professional life of the Judge and, more generally, the administration of justice. There are four fundamental points (the"four nails", as the MP Meuccio Ruini used to call them 21 ) which must remain in the exclusive jurisdiction of the Superior Council of the Judiciary and in which the Minister of Justice or the political power cannot interfere: 1) Appointments; 2) Promotions; 3) Disciplinary justice; 4) Transfers. Preventing other State powers from having a say in these matters avoids the risk that the decisions taken by the Judges in the exercise of their functions can be "influenced" by fears of political consequences on their career.

The Council then decides on all aspects of the professional life of the magistrate 22 :

- access and traineeship 23

- career progressions (i.e.: professional evaluations) 24

- training 25

- authorization of extra-judicial appointments 26

- transfers to another location or other functions 27

- placement “fuori ruolo” (it means that the Judge is still working and paid, but has different functions: such as Ministry’s Counsel) 28

- appointment of Chief Judges of the Courts 29

- absences and leave

- retirement

- disciplinary sanctions 30 .

The appointment of the Chief Judge of the Courts is the only case in which the Minister of Justice plays a significant role, giving his consent, a sort of necessary opinion on the Judge (who is expected to be appointed as the Chief Justice of the Court), selected by the Council. This is due to the fact that, according to the art. 110 of the Italian Constitution, the Minister of Justice is responsible for the organization and functioning of services relating to justice. Therefore, since the Chiefs Judges of the Courts have considerable powers in matters of organization, it is consistent that the Minister of Justice can express his own assessment 31 .

Furthermore, the Superior Council of the Judiciary has significant powers regarding the organization of offices and judicial IT, since - without prejudice to the jurisdiction of the Minister of Justice – it establishes the general rules, objective and predetermined, for the assignment of Judges to the sections and the allocation of proceedings to individual Judges, thus protecting the autonomy of the Judge from external interference and ensuring the respect of the constitutional principle of the pre-establishment of the Judge (Article 25 of the Constitution) 32 .

Finally, the C.S.M. has the power to give opinions to the Minister of Justice (at the request of the same) on the legislative acts being examined by the Parliament and to draft legislative proposals to the latter. This happens, of course, when the matters are directly or indirectly related to the judiciary and the functioning of justice.

The particular position of the C.S.M. in the context of relations between the powers of the State has the consequence that the Council itself does not fall within the category of public administrations 33 .

One of the most important functions of the Superior Council of the Judiciary is carried out by the Disciplinary section, which is competent to adopt disciplinary measures against magistrates pursuant to art. 105 of the Constitution. This function will be better dealt with in the following par.3.2.

Finally, it should be noted that for any judicial district there are Judicial Councils, which are defined as "auxiliary" bodies of the Superior Council of the Magistracy 34 .

In other words, they express motivated opinions on numerous matters and measures falling within the jurisdiction of the C.S.M., providing fundamental elements for the correct exercise of the powers of the C.S.M. itself, as these bodies have direct knowledge of the magistrate or the judicial office concerned.

The legislative decree 27 January 2006, n. 25 introduced into the judiciary a body within the Court of Cassation, equivalent to the Judicial Councils at the Court of Appeal: the “consiglio direttivo” (Governing Council) of the Court of Cassation 35 .

1.4. The «Judge is only subject to law» principle

Art. 101 of the Italian Constitution, after proclaiming in the first paragraph that «The justice is given in the name of the people» (see infra, par.2.4), sets, in the second paragraph, the fundamental principle according to which «Judges are only subject to law» 36 .

The meaning of this principle, as already mentioned, is linked to the concept of internal independence: in fact, it is commonly understood that the Judge does not have to undergo the conditioning deriving from the higher Judges by means of the judicial precedents. The Judge, in other words, has a direct relationship with the law and remains free to give it the meaning it deems correct on the basis of the accepted criteria of interpretation. In addition to the Constitution and the laws of the State, the Judge is subject to the laws of the European Union. The Judge, however, is not subject to the regulations of the public administration, which the Judge can and must not apply it seems to be contrary either to the law, or to the Constitution.

Finally it is worth emphasizing that the art. 101, par.2, of the Italian Constitution, as already mentioned, states that the Judge is subject "only" to the law: the adverb "only" implies that the judicial authority shouldn’t suffer any constraint or conditioning nor from outside (especially from political power), neither from inside (i.e. from the judiciary itself: especially higher Courts).

1.5. The «justice is given in the name of the people»

As seen in the previous paragraph, the first proposition of art. 101 of Italian Constitution establishes a link between the judicial function and the sovereignty of the people: the first, in facts, is an expression – although in an indirect way – of the second.

This doesn’t mean that the judiciary expresses the temporary, contingent political majority, but that the judiciary is indirectly a means of actualization of the popular will 37 . More precisely, the relationship between the judicial function and the popular sovereignty is mediated by law, which reflects the popular will, and that Judges have the duty to apply 38 . Justice is not in the hands of the people as expression of a majority, but it is administered by an independent Judge, who, subject to law, acts in the name of the people.

In different words, although democracy remains the ultimate basis also of the judiciary power, the popular consent in itself cannot be a measure of the legitimacy of the judicial function.

1.6. The «natural Judge pre-established by law» principle

The «natural Judge pre-established by law» principle derives from the French revolutionary experience, as a reaction to the king's interference in the administration of justice and originally expresses three types of guarantees 39 :

1) the prohibition of establishing extraordinary Judges, created specifically after the fact to be Judged;

2) the prohibition of setting up special Judges, with jurisdiction to decide disputes in certain matters;

3) the prohibition of transferring a process from a Judge originally competent to another Judge.

In the past, the principle of the “natural Judge” used to be associated with the first of these guarantees, namely the prohibition of the establishment of extraordinary Judges (in the sense of Courts estabilished after the dispute has arose) 40 . It was expressly recognized (Article 71) already in the constitution of the Savoy Kingdom (Statuto Albertino, 1848), which later became the Constitution of united Italy in 1861 and is today is set forth by art. 25, paragraph 1, of the republican Constitution 41 .

The principle was for a long time underestimated and associated, as we said, only to the prohibition of the establishment of extraordinary Judges 42 . With an important decision, the constitutional Court (No. 88/1962 43 ) recognized the incompatibility between the principle of the natural Judge pre-established by law and the discretion in its concrete choice. In other words, the constitutional Court has emphasized the need for the law to establish the criteria to identify the Judge that with deal with the case before the facts of the case itself have occurred and without any possibility of referring such a choice to an authority other than the legislator (that provides with a general and abstract rule). In particular, the prohibition of identifying the competent Court after the dispute has arisen also applies to the judiciary itself: in essence, the law must predetermine the connection between an abstract case and...

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