Lecture 22

Question 1

The Judiciary: the Division of the Members

Answer 1

• Judges: authority that adjudicates the case
  (identification, interpretation, application of the law in order to produce a legally binding decision).
  Neutral and above the parties of the legal dispute
• Public prosecutors: authority that is a party in the
  legal dispute (non-neutral), defends the public
  interest, especially in criminal trials (non-biased)

Question 2

The Judiciary: General Rule of Judgement

Answer 2

• General rule: three instances of judgment in the
  Italian legal system (the Constitution only requires
  two art. 111 Cost.)
• First instance judge: adjudicates the merits of the dispute
• Second instance judge: reviews the adjudication of the first instance judge (full or partial review)
• Third (last) instance judge: reviews the legality (not the merits) of the previous decisions (whether the first and second instance judges correctly identified, interpreted and applied the law to the case at hand)

Question 3

The Judiciary: Ordinary Jurisdiction– Civil Justice

Answer 3

• Tribunal
• Court of Appeal
• Court of Cassation
  or
• Giudice di Pace (Honorary Judge)
• Tribunal
• Court of Cassation
• Ordinary civil jurisdiction adjudicates disputes
  between private individuals, or between private
  individuals and the PA when the PA acts as a private individual (no authoritative power)
• Functioning
  1. A party (actor) summons the other (defendant) before the judge, advancing a claim (e.g.: damages; enforcement of a contract; divorce; alimony; etc.)
  2. The neutral judge adjudicates the case with a legally binding decision that sustains or rejects the actor’s claim
  3. Advice of the public prosecutor (in exceptional cases)

Question 4

The Judiciary: Ordinary Justice– Criminal Justice

Answer 4

• Tribunal / Assize Court
• Court of Appeal / Assize Court of Appeal
• Court of Cassation
  or
• Giudice di Pace (Honorary Judge)
• Tribunal
• Court of Cassation
  Preliminary investigations: GIP / GUP
• Ordinary criminal jurisdiction adjudicates disputes
  where private individuals are accused of having
  committed a crime (criminal offence or other
  violation of criminal law)
• Functioning
  1. Preliminary investigations: the public prosecutor
  investigates an individual who might have committed a crime
  2. The individual (defendant) is accused of having
  committed a crime by the public prosecutor
  3. The neutral judge adjudicates the case with a legally binding decision that acquits or convicts the defendant

Question 5

The Judiciary: Public Prosecutor

Answer 5

• Shares the same institutional position of the judges
• Is separated from the Executive Power
• Has the duty to initiate criminal proceedings
• The role in the constitutional system is more
  complex than that of “pure” public accuser: the
  public prosecutor must collect/present also
  evidences in favor of the defendant (non-biased role)
• Public Prosecutor Office at the Tribunal
  1. Chief Prosecutor
  2. Adjunct Prosecutor
  3. Substitute Prosecutor
• Public Prosecutor Office at the Court of Appeals
  1. General Prosecutor
  2. Substitute General Prosecutor
• General Public Prosecutor Office at the Supreme
  Court of Cassation
  1. General Prosecutor
  2. Substitute Prosecutors

Question 6

The Judiciary: Ordinary Jurisdiction

Answer 6

• It is not possible to create “special jurisdictions” or “special judges” (ad hoc judges) – 102 Cost.
  1. Equality before the law
  2. Right to the “natural judge”
• It is possible to create “specialized sections” of
  ordinary judges (e.g.: labour; minors; family; etc.)
• The only special jurisdictions allowed are those
  expressly envisioned by the Constitution (103 Cost.)
  1. Administrative
  2. Accounts
  3. Military

Question 7

The Judiciary: Special Jurisdiction– Administrative Justice

Answer 7

• Regional Administrative Tribunal (“Tribunale
  Amministrativo Regionale” - TAR): at least one for
  each Region
• Council of State: Full review of the first instance
  decision
• Court of Cassation: only for conflicts of jurisdiction (special vs. ordinary)
• “High Court” (Sicily): replaces the Council of State
  for appeals against the decisions of Sicilian TARs
• Special administrative jurisdiction adjudicates
  disputes between private individuals and the PA
  (protection of the individual against illegal/invalid
  administrative acts/measures)
• Functioning
  1. The individual challenges an administrative act (authoritative power of the PA), on the basis of a pretensive/oppositive legitimate interest
  2. The neutral judge adjudicates the case with a legally binding decision
  3. General rule: the administrative judge can only annul the illegal act and order the PA to re-run the administrative procedure (the judge cannot replace the PA)

Question 8

The Judiciary: Special Jurisdiction– Accounts Justice

Answer 8

• Regional Sections of the Court of Accounts
• Central Sections of the Court of Accounts
• Court of Cassation: only for conflicts of jurisdiction
• Adjudicates cases regarding the way in which “public money” is spent (e.g.: damages caused by civil servants due to misuse of the PA’s budget; pensions granted by the State; etc.)

Question 9

The Judiciary: Special Jurisdiction– Military Justice

Answer 9

• Military Tribunals
• Military Court of Appeals
• Court of Cassation
• Adjudicates cases regarding members of the military in times of war
• Adjudicates cases regarding members of the military accused of a “military offence/crime” in times of peace

Question 10

The Judiciary: Constitutional Principles of the “fair trial”

Answer 10

• Neutral and impartial judge
• Possibility to intervene for everyone having an
  interest in the outcome
• Possibility for the parties to participate in the
  formation of the judge’s decision
• Equality of the parties involved
• Reasonable time-frame for the final adjudication (if not, compensation/reparation)
• Mandatory motivation of all judicial decisions
• Allows the parties to know and verify the legal
  reasoning of the judge and the underlying legal and factual reasons (and, possibly, to challenge/appeal
  the decision)
• Allows for a “general” control by the public opinion (the decisions are taken “in the name of the Italian people”)
• Mandatory technical representation (“difesa
  tecnica”): the parties cannot “defend/represent
  themselves”
• Right to representation at the expenses of the
  State (“gratuito patrocinio”): if a party cannot
  afford technical representation
• Representation at the expenses of the State ≠
  “difesa d’ufficio” (court-appointed attorney)

Question 11

The Judiciary: Constitutional Principles of the “fair trial”– Criminal Justice

Answer 11

• Defendant must be informed of the reasons and
  nature of the charges (with the aid of an interpreter, if needed)
• Time to prepare the defensive strategy
• Access to the necessary information (discovery)
• Equality between the defendant and the public
  prosecutor: as a general rule, evidence is acquired
  (formed) in the trial
• Criminal law cannot have retroactive effects (article 25 Cost.)
  1. Exception: retroactivity of the “lex mitior”
  2. Exception: decisions of the Constitutional Court that annul the source of the law that founded the conviction
• A defendant should be regarded as “not guilty” until the final decision (27 Cost.)
• Criminal responsibility is personal (27 Cost.)
• Prohibition of the death penalty (27 Cost.)