Accountability e Transparência da Justiça Civil - Ed. 2019

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 …

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