Judge of the Court of Turin (Italy)
AND
STATUS OF JUDGES:
INTERNATIONAL
STANDARDS
AND
THE ITALIAN EXPERIENCE(*)
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Table Of Contents: (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 Principles Governing the
Independence of the Judiciary: Instruments. – 5. The
Internationalisation and Trans-Nationalisation of Principles Governing the
Independence of the Judiciary: General Principles. – 6.
The Independence of the Judiciary in the Countries of Central and Eastern
Europe. – 7. The Internationalisation and
Trans-Nationalisation of principles governing the independence of the
Judiciary: the Role of the International Association of Judges. – (II) INTERNATIONAL STANDARDS AND THE ITALIAN EXPERIENCE
ON SELECTION, TRAINING AND CAREER OF JUDGES – 8. The Selection of Judges in Recommendation
No. R (94) 12. – 9. The Selection of Judges in the
Different European Legal Systems. – 10. The Selection of
Judges in the Italian Legal System. – 11. International
Standards on Judicial Training. – 12. Right to Judicial
Training and Judicial Training Structures. – 13. Initial
Training for the Judiciary in Italy. – 14. On-the-Job Training for the Judiciary in Italy. – 15. The Career of Judges in Recommendation No. R (94) 12
and the Italian Experience. – 16. The Career of Judges
in the Different European Legal Systems. – (III)
INTERNATIONAL STANDARDS AND THE ITALIAN EXPERIENCE ON THE STATUS OF JUDGES:
THE PROTECTION OF JUDICIAL INDEPENDENCE THROUGH A HIGHER JUDICIAL COUNCIL – 17. Irremovability of Judges in Recommendation No. R (94)
12 and in the Legal Systems of European Countries. – 18.
Protection of Judges Against all Undue Influence in Recommendation No. R (94)
12. The Question of Judicial Immunity. – 19. The Higher
Judicial Council: International Standards. – 20. The
Higher Judicial Council: The Italian Experience (Members and Electoral
System). – 21. The Higher Judicial Council: The Italian
Experience (Constitutional Position and Activities). – 22.
Excerpts from the Italian Constitution (Provisions Concerning the Judiciary).
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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 the person considered as
being Head of the Judiciary, the Lord Chancellor, at the same time exercises
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. As we shall see later, 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 Higher Judicial Council,
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 envisages the possibility for the ordinary law to set limits
on judges’ membership of political parties. Such a law has never in fact been
passed. However, the “Judicial Code of Ethics” approved by the National
Association of Italian Judges 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 Higher Judicial
Council.
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.”.
3. The Independence of the
Public Prosecutor’s Department.
An independent
judge will not suffice to achieve judicial independence if the court, the
public prosecutor’s department and the authority empowered to turn the wheels
of justice, at least in criminal matters, lack 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].
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 Judge 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 resolution on the role of the judiciary in a
state governed by rule of law, adopted in Warsaw on 4 April 1995 by the
ministers participating in the Round Table of Ministers of Justice of the
countries of Central and Eastern Europe;
- The European Charter on the status of judges,
approved by the Council of Europe in Strasbourg, 8-10 July 1998;
- The Universal Charter of the Judge, unanimously
approved by the Central Committee of the International Association of Judges at
its meeting in Taipeh (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 200 (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.”).
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. Internationalisation
and Trans-Nationalisation of Principles Governing the Independence of the
Judiciary: General Principles.
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 Higher Judicial Council 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 Higher Judicial Council), 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 50 years.
6. The independence of
the Judiciary in the Countries of Central and Eastern Europe.
If we now take a look, from this standpoint, at the
development of the law in the former communist countries, we are bound to
observe that the transition to democratic government has not always involved
full acceptance of Montesquieu’s doctrine on the separation of powers.
Unfortunately, as a general rule, it must be said that the influence of the
executive authorities in that part of Europe is still too strong. I hasten to
add that this situation cannot be attributed solely to the lack of democratic
tradition in a number of the countries concerned. Indeed, that would be untrue
for a substantial number of states which enjoyed democracy and democratic
freedoms before the communist regime. Furthermore, the example of certain
countries in Southern Europe (such as Spain, Greece, Italy and Portugal)
indicates that a period of dictatorship may end in “a democratic reaction” that
prompts full implementation of the principles of the state governed by rule of
law, including the complete independence of the judiciary.
There is a somewhat
negative factor which I would like to mention, namely the influence on the
Central and Eastern part of Europe after the fall of the Berlin Wall of the
Common Law systems. Of course, nobody could deny the importance of the role
played by the American Bar Association (through the Central and Eastern
European Law Initiative - CEELI) or by other institutions (such as the Soros
Foundation, for example) in this
area: we have only to think of the training centres set up, the meetings and
conferences organised, the impressive efforts made to provide judges with every
type of information and training.
But it is equally
undeniable that all this results in a tendency to transplant judicial
institutions–and, in more general terms, a certain type of mentality–into a
completely different legal environment. I would go as far as to say–at the risk
of being blunt–that the question whether appointing judges is in the hands of
the Lord Chancellor or of the
Government of Her Majesty the Queen of England, by the Government of the United
States or of the President of the United States, does not give rise to any
concern within those systems (although the problems arising in the last U.S.A.
election campaign between the two candidates for the White House, Mr Bush
and Mr Gore, gives a clear indication of how crucial an issue the reliability
of a judicial system can be where the members are appointed by political
parties). The same is true of the lack of an institution such as the Higher
Judicial Council within the Common Law systems.
But we must never forget that the Anglo-Saxon systems–and
before them, Anglo-Saxon culture–are historically based on a deeply entrenched
and age-old respect for the judiciary, to the point where a Higher Council
could be seen as a threat to, rather than a bastion of, the independence of the
judiciary.
This is absolutely not
true of Southern Europe (of which Italy is a striking example), where bodies
such as the Higher Judicial Council have been set up (and have to be
maintained) in order to protect the judiciary from the insatiable appetite of
politicians. From that point of view, I think that the situation in the Eastern
countries is closer to that obtaining in Southern Europe. That is why the
outstanding action taken by the Council of Europe following the fall of the
Berlin Wall for the complete establishment of the principles of the rule of law
in the post-communist countries should be continued and intensified. In this
context we should applaud the creation of a body such as the Consultative
Council of European Judges. The context in which this new body is to function
will certainly enable a richer sharing of experience and will also convince the
most hesitant of our colleagues of the need to set up, within the legal and
juridical systems of Europe (and especially in its Central and Eastern
regions), Higher Judicial Councils with a majority of judges elected by their
peers who are competent to give a ruling (as opposed to giving advice) on such
subjects as the selection, training, career, transfer and disciplining of
judges.
7. The
Internationalisation and Trans-Nationalisation of Principles Governing the
Independence of the Judiciary: the Role of the International Association of
Judges.
There the
internationalisation and trans-nationalisation of the principles governing the
independence of the judiciary are concerned, the International Association of
Judges is playing an ever-increasing role.
I would simply
say in this regard that the International Association of Judges (IAJ), of which
I have the honour to be one of Deputy Secretaries General, was founded in 1953,
just after the Second World War, to bring about a better understanding of the
judicial systems of member countries. At present it includes the
representatives of sixty member states. The IAJ is a non-governmental
organisation, membership of which is open not to individuals, but to national
associations of judges. More precisely, associations belonging to it must be
judges’ associations that have been freely formed and which represent the
judiciary of their country. Furthermore, the domestic legal systems of the
member countries must guarantee real independence of the judiciary.
The main purpose of the IAJ is to
reinforce the independence of the judiciary as an essential attribute of the
judicial function, together with the protection of the constitutional and moral
status of the judiciary and the guarantee of fundamental rights and freedoms.
The IAJ is governed by its Central
Council, composed of representatives of the member associations, and also by
the Executive Committee, which is the administrative organ under the leadership
of a President who is elected every two years, as are the members of the
Executive Committee, consisting of the president, six vice-presidents and, for
a period of two years, the immediate past president.
The Association
has four Study Commissions whose task it is to study a different topic each
year in various fields:
- The first is engaged
in the study of the status of judges, the independence of the judiciary,
judicial administration and the protection of individual freedoms.
- The second
commission is involved in the study of civil law and procedure;
- The third commission
is engaged in the study of criminal law and procedure;
- The fourth
commission is involved in the study of public and social law.
At meetings and
congresses, the member countries try to gain a better knowledge of the country
where the conference is being held, of its legal system, and of the problems
encountered by its judges. Petitions and recommendations are produced at the
conclusion of each congress.
Within the IAJ
there are four Regional Groups whose aim is to monitor closely specific questions
relating to the judiciary in different parts of the world:
- the European
Association of Judges (EAJ);
- the
Ibero-American Group;
- the African
Group
- the “ANAO”
(Asian, North American and Oceanian) Group.
INTERNATIONAL STANDARDS AND THE ITALIAN EXPERIENCE
ON SELECTION, TRAINING AND CAREER OF JUDGES
8. The Selection of
Judges in Recommendation No. R (94) 12.
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
Section 9 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, Principle I-2.c. of the
recommendation shows 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 the first part of the said Principle I-2.c.: “The authority taking the
decision on the selection and career of judges should be independent of the
government and the administration. In order to safeguard its independence,
rules should ensure that, for instance, its members are selected by the
judiciary and that the authority decides itself on its procedural rules.”
The second part of Principle I-2.c. is, by contrast,
clearly conceived as an exception to the rule of the first sub-paragraph. That
is to say, the recommendation appears to view as exceptional a country where
“the constitutional or legal provisions and traditions allow judges to be
appointed by the government”. 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 (see supra, Section 6)–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.
While it is true that Principle I-2.c.
tries to suggest, in its second sub-paragraph, some expedients aimed at
limiting the discretionary power of the executive (or legislative)
authorities–this being particularly the case, for example, with the creation of
“a special independent and competent body to give the government advice which
it follows in practice”–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.
9. The 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 Higher Judicial Council (such is
the case, for example, in Italy), 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 newly-established Commission for Judicial Appointments–which
provides, for the first time in the U.K., an independent mechanism for
applicants for judicial office who feel that their candidacy has not been
considered fairly–would appear to open 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 already mentioned 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 (see supra, Section 6).
In the countries of the former communist bloc the situation
seems somewhat complex and difficult to grasp.
As I have already observed (see Section 6), 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 Higher
Judicial Council 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].
10. 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 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 total
number of the members of this panel is thus of 32. 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[9].
11. 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, 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].
12. 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 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.[12].
13. 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
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 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.
14. 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.
15. The Career of Judges in
Recommendation No. R (94) 12 and the Italian Experience.
As far as the career of judges is concerned, the
already mentioned Recommendation No. R (94) 12 of the Council of Europe
expresses a very clear preference for a system based on merit: “All decisions
concerning the professional career of judges should be based on objective
criteria, and the selection and career of judges should be based on merit,
having regard to qualifications, integrity, ability and efficiency. The
authority taking the decision on the selection and career of judges should be
independent of the government and the administration.” 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 (see infra Section 16). 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 (see supra, Sections 1, 2 and 8). 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 may have come for a pyramid-shaped
structure in the judiciary.
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), deputy principal prosecutor, judge responsible for
execution of sentence, children’s judge. The Higher Judicial Council 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.
The seniority required
for appointment to the grade of judge of the court is two years following
appointment to the position of trainee judge. After eleven years in service
(thirteen counting from appointment to the position of trainee), judges of the
court may be appointed to the grade of judge of the Court of Appeal. The
seniority required for a declaration of aptitude for the grade of judge of the
Court of Cassation is seven years from appointment as judge of the Court of
Appeal. After a further eight years, judges can be declared competent to
exercise higher administrative functions (heads of higher courts). All
promotion takes place, once the necessary seniority has been attained, by
decision of the Higher Judicial Council, 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 declared unsuitable will be
subjected to a further assessment two years later.
This system, set up
between 1966 and 1973, 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 Higher Judicial Council. 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[16].
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[17].
The conferring on the Higher
Judicial Council 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.
16. 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 Higher Judicial Council 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 system 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 the Lord
Chancellor follows well publicised criteria, while in Scotland the executive
recently published a “consultation document relative to judicial appointments.”
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 –
unique, as far as I know, in having a complete separation between grade and
function in terms of career (see supra, Section 15).
INTERNATIONAL STANDARDS AND THE ITALIAN EXPERIENCE
ON THE STATUS OF JUDGES:
THE PROTECTION OF JUDICIAL INDEPENDENCE
THROUGH A HIGHER JUDICIAL COUNCIL
17. Irremovability of
Judges in Recommendation No. R (94) 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 Principle I 3 of the above mentioned
Recommendation No. R (94) 12 states that “Judges, whether appointed or elected,
shall have guaranteed tenure until a mandatory retirement age or the expiry of
their term of office.”. The rule neither recognises nor allows for any
exception, either in the event of changes in the jurisdiction of the courts or
in the event of a disciplinary offence (see Principle VI 1.b., which makes provision only for
“moving the judge to other judicial tasks within
the court”).
No exception is made either for the situation which in
Italy is termed environmental
incompatibility. In this connection it should be noted that under the
provisions of Article 2 of Italian Law No. 511 of 31 May 1946, even where no
disciplinary offence has been committed judges can be transferred by the Higher
Judicial Council when “for any reason, and even in the absence of any fault on
their part, they are unable to perform their duties in that post in a manner
consistent with the dignity of the judiciary”. That no disciplinary measure is
involved here is shown by the fact that the Law only speaks of an “objective
incompatibility” of the judge with the social, cultural or working
“environment” in which he performs his functions[18].
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 infra, 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.” This is once again a case of the environmental
incompatibility recognised by Italian legislation,
which has already been discussed.
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–is in the process of introducing a series of
reforms intended to restrict the principle of the irremovability of judges[19].
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, which has already
been mentioned, cites any instance in which it is permissible to derogate from
the rule of irremovability.
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 final report issued on the topic of judicial
independence by the Consultative Council of European Judges of the Council of
Europe on 21-23 November 2001[20]:
“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).”.
18. Protection of
Judges Against all Undue Influence in Recommendation No. R (94) 12. The
Question of Judicial Immunity.
Principle I 2.d.
of the Recommendation No. R (94) 12 of the Council of Europe deals with the
problem of protecting the judge against “restriction, improper influence,
inducements, pressures, threats or interference, direct or indirect, from any
quarter or for any reason”. For an efficient implementation of that rule, the
text further stipulates that: “The law should provide for sanctions against
persons seeking to influence judges in any such manner.”. This rule should be
seen in conjunction with Principle II - the authority of judges, which
stipulates that: “1. All persons connected with a case, including state bodies
or their representatives, should be subject to the authority of the judge. 2.
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.”.
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).
We
should also see in a very positive light the final sentence of Principle I-2.d,
according to which: “Judges should not be obliged to report on the merits of
their cases to anyone outside the judiciary.”.
There might also be some risk of influence where the
allocation and withdrawal of cases is concerned.
In this connection, Principle I-2.e. deals with the distribution of
cases, which “should not be influenced by the wishes of any party to a case, or
any person concerned with the results of the case.” It appears excessive,
however, to exclude any system of distribution other than one based on a
“drawing of lots or a system for automatic distribution according to
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.
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.
19. The Higher Judicial Council: 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 Higher Judicial Council.
According to western European standards, a Higher
Judicial 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
Higher 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 (94) 12 of the Council of Europe,
whose Principle I 2.c. provides for that “The authority taking the decision on
the selection and career of judges should be independent of the government and
the administration. In order to safeguard its independence, rules should ensure
that, for instance, its members are selected by the judiciary and that the
authority decides itself on its procedural rules.” Principle VI 3. of the same
document states that “Where measures under paragraphs 1 and 2 of this article
need to be taken, states should consider setting up, by law, a special
competent body which has as its task to apply any disciplinary sanctions and
measures, where they are not dealt with by a court, and whose decisions shall
be controlled by a superior judicial organ, or which is a superior judicial
organ itself. ”.
Much more
than a mere hint 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).
20. The Higher Judicial Council:
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 Higher 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.” ([21]).
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 ([22]). 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 Higher Judicial Council (Consiglio Superiore della Magistratura –
C.S.M.) is therefore the self governing body of the
ordinary judiciary ([23]).
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 ([24])
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 ([25]).
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 ([26]).
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 ([27]).
21. The Higher Judicial Council:
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. 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. Rules concerning judicial liability are provided
for by Statutes as well as by the C.S.M. case law ([28]).
The Council plays as well a relevant role in the field
of judicial selection and training, as in Italy no school for the judiciary exists:
this topic has already been dealt with (see supra, Sections 10-14).
22. 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 Higher 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 [Higher Council for the Judiciary] According to the provisions of the statutes governing the Judiciary,
the Higher 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
Higher 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 Higher
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 Higher 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. |
* Paper submitted to the Seminar organised by the Council of Court
Chairmen of the Republic of Armenia, ABA/CEELI in Armenia and the Council of
Europe on the subject: “The Status of Judges in the Republic of Armenia”,
Yerevan, 3 December 2002. This work has been available since 12 November 2002
on the following web page:
http://www.oocities.org/CollegePark/Classroom/6218/yerevan/report.htm.
[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.oocities.org/CollegePark/Classroom/6218/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 World” Foundation, 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 (the book is to be published soon by Editions du Conseil de
l’Europe, Strasbourg, 2002).
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.oocities.org/CollegePark/Classroom/6218/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.oocities.org/CollegePark/Classroom/6218/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. See also the
publications cited infra, at note 10.
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).
[7] Information
on this subject available on the following web site: http://www.lcd.gov.uk/deprep0102/a05.htm#h2001.
[8] For further
details on this topic see Oberto,
Recrutement et formation des magistrats en Europe : une étude comparative,
cit.
[9] For further details on this topic see Oberto,
Recrutement et formation des magistrats en Europe : une étude comparative,
cit.
[10] See Oberto, Recrutement et formation des magistrats en Europe : une étude comparative, cit.; Oberto, 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://juripole.univ-nancy2.fr/Magistrature/uim/formation,html); 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.oocities.org/CollegePark/Classroom/6218/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 Higher Judicial
Council 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.
[12] For further details on this topic see Oberto,
Recrutement et formation des magistrats en Europe : une étude comparative,
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.oocities.org/CollegePark/Classroom/6218/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] Following a
judgment of the Constitutional Court in 1982, the situation is slightly
different for appointment to the post of judge of the Court of Cassation. The
declaration of competence is, as for the grade of appeal judge, mainly linked
with seniority and has some bearing on salary. But an actual appointment as
adviser to the Court of Cassation by the Higher Judicial Council is effected on
the basis of an assessment of professional qualities, and in particular
knowledge of the law; here seniority plays a relatively minor role. Formerly it
was impossible to be transferred, even on request, to a position at a lower
grade. Following the reform introduced by the Law (decreto legge) of 8 June 1992, No. 306, this obstacle has been
removed by the introduction of the principle of “reversibility of functions.”.
[17] 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.
[18] It is for this
reason that the decision is taken not by the disciplinary tribunal, but by the
plenary assembly of the Higher Judicial Council acting on a proposal from a commission
whose task it is to investigate the matter and hear submissions from the judge
concerned.
[19] 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://www.oocities.org/CollegePark/Classroom/6218/prague/sommario.htm.
[20] The
document is available on the following web page: http://www.coe.int/T/E/Legal_Affairs/Legal_co-operation/Legal_professionals/Judges/CCJE/ccje_2001_op%20n%B01e%20-%20Opinion%20independence.asp#TopOfPage.
[21] 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.
[22] See Art. 16, Statute No. 195 of
24 March 1958.
[23] 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.
[24] 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.
[25] 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.
[26] 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.
[27] See in particular Art. 19 of Statute No. 195/1958 and Art. 4 of the C.S.M.’s
internal regulations.
[28] On this topic see Oberto,
Judicial Ethics in the Italian Legal System, in Rivista di diritto
privato, 1996, p. 393 et seq.; also 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, p. 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.