ORDINE GIUDIZIARIO. - La questione, più formale che sostanziale, se la magistratura costituisca
In effect, the Constitution provides for a separation of powers within the unitary sovereignty of the State, and therefore by "power", in a broad sense, can be understood a part or sector of sovereignty, identified at the same time by its own function and by the organs responsible for exercising II. The "jurisdictional power" is thus identified by the jurisdictional function and by the relative organs that exercise it, which constitute an "order" unto itself, that is precisely "autonomous and independent" from any other order of organs, responsible for the exercise of other functions and headed by 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).
Because of the function they exercise, which is one of the three fundamental ones of the State, and because of the independence with which they exercise it, not only with respect to the organs of the other powers, but also among themselves (since the bond of hierarchical subordination is lacking among them), they can be considered constitutional organs (although this opinion is controversial). "Vilification" of the judicial system is prosecuted as a crime against the internal personality of the State, upon authorization by the Minister of Justice (arts. 290, 313 Penal Code). A specific title of the Penal Code provides for "crimes against the administration of justice" (arts. 361-401).
There are necessarily multiple judicial organs (or "tribunales" in a broad sense) with various competences regarding subject matter (in this regard "ordinary", that is with general competence, except for that distinctly delegated to other organs, are the civil and criminal courts), territory, value, degree, and connection. In civil matters, justice is administered by conciliatory judges, prætors, courts in the strict sense, courts of appeal (also serving as labor magistracies, in second instance, by the sections for individual labor disputes at prætorships and courts), Court of Cassation (in specific sections and in joint sections); in criminal matters: prætors, courts in the strict sense, and courts of assize (with popular jury, currently being reorganized), Court of Cassation (in specific sections and joint sections); among specialized magistracies, the superior tribunal of public waters; and furthermore, with particular competence, military tribunals. Competent to judge the President of the Republic and the ministers is the upcoming Constitutional Court (while the Sicilian Constitutional Court, perhaps destined to be suppressed, has jurisdiction over crimes committed by the president and councilors of the Sicilian Region).
The Constitutional Court itself (which properly is not part of the judicial system, but is a constitutional organ) must
judge disputes regarding the constitutional legitimacy of laws and acts having the force of law of the State and of the regions, as well as conflicts of attribution between the powers of the State, between the State and the regions, and between 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 (so-called exclusive jurisdiction, as in matters of public employment) vis-à-vis the public administration, are the provincial administrative juntas (in the process of reform in harmony with the regional system), 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 removed from his "natural" judge, that is, the judge "preconstituted 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 ordinary organs), with the participation also of citizens outside the judiciary, leaving to ordinary legislation the determination of the cases and forms "of direct participation of the people" in the "administration of justice" (Constitution, art. 102).
Magistrates, who are to be distinguished from one another solely by diversity of functions, must be Italian citizens in enjoyment of civil rights; have always maintained an unblemished civil and moral conduct; and possess the other requirements demanded by law. They are appointed as a rule by competitive examination, but the new law on the matter, provided for by the Constitution, may permit the elective appointment of honorary magistrates for functions attributed to single judges and may also limit or abolish the current exclusion of women.
The internal autonomy of the judicial system is organized through an upcoming "Superior Council of the Magistracy", presided over by the President of the Republic. The first president and the prosecutor general of the Court of Cassation are members by right; 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 among full university professors in legal subjects and lawyers with 15 years of practice, who cannot be enrolled, as long as they are in office, in professional registers nor be part of Parliament or of Regional Councils. The elective 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.
To the Superior Council of the Magistracy belong, according to the rules of the judicial system, appointments, assignments and transfers, promotions, and disciplinary measures regarding magistrates, who enjoy irremovability, and therefore cannot be dismissed or suspended from service nor assigned to other offices 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). Regarding the professional morality of members of the judicial system, V. GIUDICE.