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Organisation of justice - Italy

 Ordinary Courts

{

- civil courts

- criminal courts

 Special Courts

{

- administrative courts

- State auditors’ court

- military judges

- Constitutional Court



 

TABLE OF CONTENTS

1. Ordinary courts 1.
2. Special courts 2.
3. Civil courts 3.
4. Specialised judicial institutions 4.

 

1. Ordinary courts

The ordinary courts (civil and criminal) are presided over by ordinary judges, considered as such because they are established and governed by the judicial order. Civil and criminal judges form a single structure, that of the ordinary judges, which also includes pubblici ministeri (prosecutors).

The Constitution guarantees the independence of the ordinary judiciary from interference by any other State power in its activity of interpreting the law and assessing facts.

In order to become a judge, candidates take part in competitive examinations, passing through various levels; duties are assigned after a training period. Judges are distinguished from each other on the basis of their different duties and may be transferred only at their request. However, there is no hierarchical structure among judges other than the powers of organisation and supervision given to office heads.

The Superior Council of Judges italiano is the judiciary’s organ of self-government. It safeguards the judiciary’s independence, regulates the most important activities necessary for the exercise of its competence and applies disciplinary sanctions. It is made up of the President of the Republic, who presides over it (and who generally has the assistance of a Vice president, elected from the members), has the first President of the Corte di Cassazione (the supreme court in the Ordinary Courts) and the Cassazione’s Prosecutor General, as well as 24 other members, of whom one third are elected by Parliament and two thirds by ordinary judges. 

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The Minister of Justice italiano is entrusted with the organisation and operation of the judicial services. In order to carry out his own administrative duties, the Minister of Justice is assisted by a central structure with a seat in Rome and regional offices, whose work supports judicial activities.

Reference texts :

  • Italian Constitution;
  • RD 1941/12 on ordinary jurisdiction ;
  • Law 1958/195 on the Consiglio Superiore della Magistratura.

2. Special courts

The ordinary courts may be contrasted with the special courts.

The Constitution forbids the appointment of extraordinary or special judges apart from the following systems of special judges for which it provides:

  • administrative judges,
  • State auditors’ court,
  • military judges,
  • Constitutional Court italiano (monitoring the Constitutionality of laws; conflicts of competence, offences committed by the President).

The administrative courts, in particular, monitor the legitimacy of administrative acts and may lead to their annulment. The courts of first instance are the Tribunali Amministrativi Regionali (Administrative Regional Tribunals), from which appeals may be made to the Consiglio di Stato and the Consiglio di giustizia amministrativa della Regione Sicilia. Administrative judges are distinguished from ordinary judges and have an independent governing body.

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The sphere of competence of an administrative judge is generally determined by reference to the subjective position at stake (the legitimate interest), excepting the cases of exclusive competence, in which the administrative judge is also a judge of rights. Cases of a conflict of competence, whether positive or negative, between special judges or between special and ordinary judges must be referred to the Corte di Cassazione, which rules in sezioni unite (joint sittings of all divisions).

3. Civil courts

In the civil courts, judges ensure the application of the law in disputes between the parties (litigation) or in cases in which the intervention of a judge is required by law to safeguard the rights of a third party or parties, whether individuals or the collective interest (non-contentious jurisdiction).

All of the questions included in the area of application of the judicial network in civil and commercial matters, namely questions of civil law, including those relating to family law and the law on consumer protection, are decided by the civil courts.

Civil jurisdiction is exercised by the ordinary judges, who perform functions of adjudication and prosecution.

The adjudicating institutions may be divided into courts presided over by single judges and collegiate courts. In the present system, judges at first instance adjudicate individually except in certain cases fixed in advance by the law which require a panel of judges. The courts of appeal, the Corte di cassazione, the ordinary courts in the cases provided for by the law and the Juvenile Court all operate as collegiate bodies.

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The role of the pubblico ministero in a civil trial must be regarded as sui generis.

The pubblico ministero, whose office is included among the judiciary, monitors “compliance with the law, the prompt and regular administration of justice, the safeguarding of the rights of the State, of legal persons and subjects without legal capacity. The pubblico ministero takes civil action in the cases defined by the law (e.g. in cases of annulment of a marriage an interdizione (injunction, ban or disqualification), bankruptcy, the invalidity of an industrial patent or trademark). He must also take part in adjudication (e.g. in cases concerning matrimony, including separation and divorce, in cases concerning the State or the legal capacity of a person). Moreover, he may intervene in any case of public interest. 

Judicial institutions – The institutions to which the administration of civil justice are entrusted are as follows:

  • justice of the peace,
  • court of first instance,
  • juvenile court,
  • court of appeal, and
  • the Corte di Cassazione.

As a general rule, judgments given by a judge at first instance are enforceable provisionally, that is unless enforcement is stayed by an appeal judge.

Organigram of civil justice in Italy (PDF) 

3.1. Justice of the peace

The giudice di pace is an honorary position, not a career judge and is nominated by the Consiglio Superiore della Magistratura on the basis of fixed requirements (including a law degree); the office is held for a period of four years, which may be renewed once.

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The giudice di pace adjudicates individually. There are approximately 4,700 giudici di pace in Italy, distributed in 848 offices throughout the national territory (as of January, 2003). They are remunerated in the form of a fee for work carried out.

Jurisdiction

The giudice di pace has jurisdiction in cases relating to chattels of a value of up to € 2 582.28 or actions for compensation for damage caused by vehicles or boats up to a value of € 15 493.71. For some disputes definitively regulated by law, he has jurisdiction regardless of value. These include disputes relating to the use of facilities in houses which are jointly owned. Territorial jurisdiction follows the common rules in the Codice di Procedura Civile (Code on Civil procedure).

The parties before the giudice di pace may conduct their own defence if the value of the proceedings does not exceed € 516.46; in other cases the assistance of a defence lawyer is required, although the giudice di pace may authorise the parties to conduct their own defence in view of the nature and scale of a particular case.

Information on lawyers legally exercising the profession and on trainees allowed to work as defence counsel within the limits of the law is available from the Consigli dell’Ordine [Bar Association] of the lawyers with offices at the court.

Proceedings are simplified and almost entirely oral. They tend to favour conciliation, which should constitute the natural conclusion of this type of economically small-scale dispute.

The giudice di pace gives judgment in compliance with the relevant laws; in cases with a value of less than € 1 032.91 he follows the principles of general equity. He also decides in accordance with general equity in cases provided for by the law and, if their rights are alienable, where the parties request that he do so.

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Contesting decisions

Judgments may be appealed before the Court, unless they are given in accordance with equity or cannot be appealed (e.g. in the case of administrative sanctions), in which cases the only recourse is an appeal to the Corte di cassazione.

3.2 Court of First Instance

This court is made up of giudici togati (professional judges) who deliver judgment individually or, where required by law, in a panel (three members). However, honorary judges may be used in an ordinary court. The Tribunale ordinario is a court of first instance and also an appeal court in respect of judgments given by a giudice di pace (unless these are decisions in accordance with principles of general equity or final judgments). 

The courts have a seat in the main town of each province (with the exception of Caserta); but several separate sections have been established in other communes within a province, with territorial jurisdiction coinciding with the divisions of these sections (Ministero della giustizia italiano).

Jurisdiction

It has jurisdiction in any cases which are not expressly within the jurisdiction of another court; territorial jurisdiction is determined in accordance with the rules defined by the codice di procedura civile. The parties must conduct their defence with the assistance of a practising defence lawyer.

Contesting decisions

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Judgments may be appealed before the Court of Appeal, in whose district the court is located; in some cases provided by law, the only recourse against judgments of this court is an appeal to the Corte di cassazione (e.g. judgments regarding challenges to executive acts or to administrative sanctions). An exceptional remedy is that of revocazione (an order for a new trial), to take place before the same court, in the cases and fulfilling the conditions defined by law.

3.3 Court of Appeal

This is an appeal court in the case of first instance judgments given by the Tribunale. The Court of Appeal is situated in the main town of each judicial district and is organised in divisions. It always sits as a collegiate body and adjudicates with three members; for decisions in the cases of minors, agricultural contracts and contracts regarding public waters, the panel of judges includes experts.

Competence

The Court of Appeal:

  1. exercises jurisdiction in appeals against judgments given at first instance by the courts of first instance;
  2. it decides in camera di consiglio (in closed session) in cases defined by the Codice di procedura civile;
  3. it takes on matters referred to it by law and in such cases acts as a judge of first and final instance, excepting the possibility of an appeal to the Corte di cassazione. For example, the courts of appeal have jurisdiction in the case of a challenge of an estimate given for an expropriation measure, in orders for the recognition of decisions in civil and commercial matters and in cases regarding matrimony and parental rights pursuant to the Brussels Regulations I and II.

An appeal is a direct method of contesting a decision and of obtaining the total or partial overruling of a decision by a judge of first instance which is held to be erroneous. All decisions of first instance may be appealed, except those expressly excluded by law. The parties may agree in advance to forego their right of appeal and apply directly to the Corte di cassazione.

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Contesting decisions

The judgments of the Corte di appello may be appealed before the Corte di cassazione. In some cases, when the conditions defined by law are met, instead of an appeal judgment, the remedy of revocazione may be applied for. 

3.4 Corte Suprema di Cassazione

This is the court of last instance. Its role is to ensure the exact observance and uniform interpretation of the law (known as nomofilachia); among other things, it rules on conflicts of jurisdiction in terms of both territory and subject‑matter. It is the judge of legitimacy and its sole function is to ensure that the law is applied correctly by the judge deciding on the merits.

It is a collegiate body, consisting of divisions, each of which is made up of a first president, division presidents and judges. It generally adjudicates as a simple division with five members present. Where questions or conflicts of jurisdiction are raised, and also in the case of controversies between branches of governments and cases concerning questions which are particularly relevant or which give rise to different decisions in different divisions, the Court adjudicates in sezioni unite, which are presided over by the first president and made up of an invariable number of nine members.

The pubblico ministero participates in all judgments, confirming the importance which the legislator attributes to the judgment of legitimacy.

The Court’s seat is in Rome and has jurisdiction over the entire territory of the Republic.

Judgments delivered by appeal courts and also judgments at first instance may be appealed to the Corte di cassazione.

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The number of judgments delivered is high and concerns the following three sectors, in particular:

  1. judgments delivered by the giudice di pace in accordance with the principles of general equity;
  2. judgments on the legal review of contested executive acts;
  3. judgments delivered where administrative penalties imposed by the administrative authorities are contested.

Appeals to the Corte di cassazione may be brought only on points of law.

If it judges that an appeal is well-founded, the Corte di cassazione overrules the contested judgment and may or may not refer the court documents to the judge on the merits and order a new trial. In the first case, the transferee judge must scrupulously observe the legal principle declared in the judgment.

In general, the Corte di cassazione’s decisions are not binding for decisions of other judges in analogous cases; in reaching its decision the Court sets forth the interpretation intended to have a persuasive and exemplary value and serve a didactic purpose for all judges in the system.

Contesting judgments

The remedy of revocazione may only be sought against rulings of the Corte di cassazione in the case of factual errors. The remedy is offered within the limits of the law before the same court, which adjudicates in closed session.

4. Specialised judicial institutions

The Constitution prohibits the appointment of new “extraordinary or special” judges but allows the establishment of specialised institutions under the auspices of the ordinary courts. These are characterised by the presence of ordinary judges and suitable citizens who are external to the legal profession.

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Juvenile Court

A juvenile court is established in every court of appeal and has jurisdiction over the whole territory of the district. It is an autonomous and specialised institution which functions as a court of first instance for all civil and administrative matters (as long as these do not have a criminal element) concerning minors, that is persons under 18 years of age, residing in the district of the court of appeal. The collegiate court is made up of four members, two career judges and two citizens, a man and a woman, who are experts in the relevant area. The Juvenile Court has sole jurisdiction for the following matters, in particular: cases relating to parental rights, the authorisation of minors to marry, adoption, the recognition of natural children, excluding a parent from managing the estate of a minor. It also intervenes to ensure the education, instruction and formation of the character of a minor, in place of relatives or of a guardian in breach of his duties.

The Juvenile Court also includes an independent office of pubblico ministero, who also has civil jurisdiction.

On appeal or judicial review of the Juvenile Court’s decision, a division of the court of appeal adjudicates with the participation of two experts, one man and one woman, who replace two of the divisional judges.

Specialised agricultural sections

These have a very limited jurisdiction in the case of disputes relating to agricultural contracts. They are established in the courts and appeal courts and adjudicate with the participation of experts.

Regional courts for public waters

These are housed in only eight appeal courts. They adjudicate with three members, one of whom must by law be a civil engineer. They have jurisdiction for questions relating to the state ownership of waters, the exclusive use of public waters, the carrying out the construction of waterworks, underground water and fees paid by consortiums for the use of public waters. Decisions may be appealed before the Higher court for public waters, which is housed at the Corte di cassazione.

Following two instances of intervention by the Constitutional Court, a radical reform is at the approval stage. This provides for the abolition of these institutions and the assignment to the ordinary courts (courts and appeal courts) of cases relating to rights and to the administrative courts (Tribunali Amministrativi Regionali and the Consiglio di Stato) of appeals against administrative measures in the area of water.

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Last update: 05-07-2006

 
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