JUDICIAL SYSTEM
The question, more formal than substantive, of whether the judiciary constitutes "an order" or "a power" has been resolved textually by the new Italian Constitution in the sense that the judicial system "constitutes an autonomous and independent order from every other power" (art. 104).
In effect, the Constitution provides for a separation of powers within the unitary sovereignty of the State, and thus, in a broad sense, "power" may be understood as a part or sector of sovereignty, identified simultaneously by its own function and by the organs entrusted with its exercise. The "judicial power" is thus identified by the judicial function and by the respective organs that exercise it, which constitute an order unto themselves, namely "autonomous and independent" from every other order of organs, entrusted with the exercise of other functions and subject to other powers (legislative, governmental, or executive). As in every State governed by the rule of law, judges are subject only to the laws (art. 101).
By virtue of the function they exercise, which is one of the three fundamental functions of the State, and by the independence with which they exercise it—not only with respect to the organs of other powers but also among themselves (since there is no hierarchical subordination among them)—they may be considered constitutional organs (though this view is contested). The "bond" of the judicial system is pursued 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 specific title of the Penal Code provides for "crimes against the administration of justice" (arts. 361–401).
Necessarily, there are multiple judicial organs (or "tribunals" in a broad sense) with varying competence by subject matter (in this regard, "ordinary" tribunals, i.e., with general competence except where distinct competence is assigned to other organs, are civil and criminal tribunals), territory, value, degree, and connection. In civil matters, justice is administered by conciliatory judges, magistrates, tribunals in the strict sense, courts of appeal (also as labor magistracy, in the second degree, by sections for individual labor disputes at magistrates' courts and tribunals), the Court of Cassation (in specific sections and in united sections); in criminal matters: magistrates, tribunals in the strict sense, and assize courts (with a jury, currently being reorganized), the Court of Cassation (in specific sections and united sections); among specialized magistracies, the Superior Tribunal of Public Waters; and additionally, with particular competence, military tribunals. The yet-to-be-established Constitutional Court is competent to judge the President of the Republic and ministers (while the Sicilian Constitutional Court, perhaps destined for abolition, is competent for crimes committed by the President and assessors of the Sicilian Region).
The same Constitutional Court (which properly does not form part of the judicial system but is a constitutional organ) must judge disputes concerning the constitutional legitimacy of laws and acts having the force of law of the State and the Regions, as well as conflicts of jurisdiction between State powers and between the State and the Regions and among the Regions (Constitution, art. 134). The most important administrative tribunals, established for the protection of legitimate interests, and in some cases also of subjective rights (the so-called exclusive jurisdiction, as in matters of public employment) against the public administration, are the Provincial Administrative Commissions (currently being reformed in harmony with regional organization), the Council of State, and the Court of Audit (particularly in matters of accounting and pensions).
It is a general principle that no one may be removed from their "natural" judge, that is, the judge "preordained by law" (Constitution, art. 25), but the exclusion of extraordinary tribunals (for specific persons) and special tribunals (for abstract categories) does not preclude the admissibility of "specialized sections" for certain matters (within ordinary organs), with the participation even of citizens not belonging to the judiciary, while the determination of cases, forms, and the direct participation of the people in the "administration of justice" is left to ordinary legislation (Constitution, art. 102).
Magistrates, who are distinguished from one another only by differences in function, must be Italian citizens enjoying civil rights; must have always maintained upright civil and moral conduct; and must possess the other requisites required by law. They are normally appointed through competitive examination, but the new law on the matter, envisaged by the Constitution, may allow for the elective appointment of honorary magistrates for functions entrusted to single judges and may also limit or abolish the current exclusion of women.
The internal autonomy of the judicial system is organized through the institution of the Superior Council of the Judiciary, presided over by the President of the Republic. Its members include ex officio the First President and the Prosecutor General of the Court of Cassation; the other members are elected for two-thirds by all ordinary magistrates from among those belonging to the various categories and for one-third by Parliament in joint session, choosing from full professors of law at universities and lawyers with fifteen years of practice, who may not, while in office, be enrolled in professional rolls or be members of Parliament or Regional Councils. The elected members serve for four years and are not immediately re-eligible. A Vice President is appointed by the Council itself from among the members elected by Parliament.
According to the norms of the judicial system, the Superior Council of the Judiciary is responsible for appointments, assignments and transfers, promotions, and disciplinary measures concerning magistrates, who enjoy irremovability and therefore may not be dismissed or suspended from service nor transferred to other seats or functions except following a decision by the Council and for legally prescribed reasons and guarantees of defense or with their consent (Constitution, arts. 105 et seq.). By law, the right to join political parties may be limited (art. 98). Regarding the professional ethics of members of the judicial system, V. GIUDICE.