Judicial Order

JUDICIAL ORDER. - The question, more formal than substantive, whether the judiciary constitutes

"an order" or "a power" has been resolved textually by the new Italian Constitution in the sense that the judicial order "constitutes an autonomous order independent of every other power" (art. 104).

In effect the Constitution provides for a distinction of powers within the unitary sovereignty of the State, and therefore by "power," in the broad sense, may be understood a part or sector of sovereignty, identified at the same time by its own function and by the organs charged with the exercise of it. The "jurisdictional power" is thus identified by the jurisdictional function and by the relative organs that exercise it, which constitute an "order" standing on its own, that is, precisely "autonomous and independent" of every other order of organs, charged with the exercise of other functions and answering to other powers (legislative, governmental or executive). As in every State governed by law, "judges are subject only to the laws" (art. 101).

By reason of the function they exercise, which is one of the three fundamental functions of the State, and by reason of the independence with which they exercise it, not only in relation to the organs of the other powers but also among themselves (there being lacking among them any bond of hierarchical subordination), they may be considered constitutional organs (an opinion, however, that is disputed). The "vilification" of the judicial order is prosecuted as a crime against the internal personality of the State, upon authorization of the Minister of Justice (arts. 290, 313 of the Penal Code). A special title of the Penal Code provides for "crimes against the administration of justice" (arts. 361-401).

The judicial organs (or "tribunals" in the broad sense) are necessarily multiple, with competence varying by subject matter (in this regard "ordinary," that is, with general competence, save that distinctly assigned to other organs, are the civil and criminal tribunals), territory, value, grade, and connection. In civil matters justice is administered by conciliatory judges, pretors, tribunals in the strict sense, courts of appeal (also as labor judiciaries, in the second instance, by the sections for individual labor disputes attached to pretures and tribunals), and the court of cassation (in special sections and in joint sections); in criminal matters: pretors, tribunals in the strict sense and courts of assizes (with a popular jury, in the course of reorganization), and the court of cassation (in special sections and joint sections); among the specialized judiciaries, the superior tribunal of public waters; and furthermore, with particular competence, the military tribunals. The Constitutional Court, yet to be established, is competent to judge the President of the Republic and the ministers (while the Sicilian Constitutional Court, perhaps destined to be abolished, is competent for crimes of the president and the assessors of the Sicilian region).

The same Constitutional Court (which properly is not part of the judicial order, but is a constitutional organ) shall have to rule on controversies relative to the constitutional legitimacy of the laws and of acts having the force of law of the State and of the regions, as well as on conflicts of attribution between the powers of the State and on those between the State and the regions and between the regions (Constitution, art. 134). The most important administrative tribunals, instituted for the protection of legitimate interests, and in some cases also of subjective rights (so-called exclusive jurisdiction, as in matters of public employment) in relation to the public administration, are the provincial administrative boards (in the course of reform in harmony with the regional order), the Council of State and the Court of Accounts (especially in matters of accounting and pensions).

It is a general principle that no one may be diverted from his "natural" judge, that is, from the judge "pre-established by law" (Const., art. 25), but the exclusion of extraordinary tribunals (for given persons) and special tribunals (for abstract categories) does not exclude the admissibility of "specialized sections" for determined matters (attached to the ordinary organs), with the participation also of citizens outside the judiciary, it remaining entrusted to ordinary legislation to determine the cases and the forms "of the direct participation of the people" in the "administration of justice" (Constitution, art. 102).

Magistrates, who are to be distinguished among themselves only by diversity of functions, must be Italian citizens in the enjoyment of civil rights; must have always maintained an unblemished civil and moral conduct, and must possess the other requisites required by law. They are appointed as a rule by competition, but the new law on the matter, provided for by the Constitution, may admit the elective appointment of honorary magistrates for the functions attributed to single judges and may also limit or abolish the present exclusion of women.

The internal autonomy of the judicial order is organized through a "Superior Council of the Judiciary," yet to be established, presided over by the President of the Republic. Its ex officio members are the first president and the prosecutor general of the Court of Cassation; the other members are elected two-thirds by all ordinary magistrates from among the members of the various categories and one-third by Parliament in joint session, choosing from among full professors of universities in legal subjects and lawyers after 15 years of practice, who may not be enrolled, so long as they are in office, in the professional registers nor be members of Parliament or of regional councils. The elected members serve for 4 years and are not immediately re-eligible. A vice president is appointed by the Council itself from among the members elected by Parliament.

There pertain to the Superior Council of the Judiciary, according to the norms of the judicial order, the appointments, assignments and transfers, promotions and disciplinary measures with regard to magistrates, who enjoy irremovability, and therefore may not be dismissed or suspended from service nor assigned to other seats or functions, except following a decision of the Council and for reasons and with guarantees of defense legally prescribed or with their consent (Const., art. 105 ff.). By law the right to enroll in political parties may be limited (art. 98). As regards the professional morality of the members of the judicial order, v. GIUDICE.

Ferruccio Pergolesi