Judicial system of the Kingdom of Italy
In the Kingdom of Italy, judges and prosecutors are public officials and, since they exercise one of the sovereign powers of the State, only Italian citizens are eligible for judgeship. Italy's independent judiciary enjoys special constitutional protection from the executive branch. Once appointed, judges serve for life and cannot be removed without specific disciplinary proceedings conducted in due process before the Consiglio Superiore della Magistratura. The Ministry of Justice handles the administration of courts and judiciary, including paying salaries or constructing new courthouses. The Ministry of Justice and that of the Infrastructures fund and the Ministry of Justice and that of the Interiors administer the prison system. Lastly, the Ministry of Justice receives and processes applications for presidential pardons and proposes legislation dealing with matters of civil or criminal justice.
The structure of the Italian judiciary is divided into three tiers:
- Inferior courts of original and general jurisdiction
- Intermediate appellate courts which hear cases on appeal from lower courts
- Courts of last resort which hear appeals from lower appellate courts on the interpretation of law.
Relationships between judges and government
The Constitution proclaims: "Justice emanates from the Duce and is administered in his name by the judges he institutes". The basic ideological assumption is the subjection of the judge to the Sovereign (i.e. the Duce) before the law; according to the official doctrine, the acts of the Duce, sometimes justified by the protection of a superior form of justice, above and beyond the ordinary jurisdiction given to the judges, are fully admissible and foreseen. The core of this system is therefore the identification of political command and enforcement of rules that leaves no room for an independent judiciary. The Italian judiciary is permeated by "fascist spirit," which penetrates judicial activity officially supporting the law, but often replacing positive law.
Political power therefore focuses on the creation of the law and its application, both in administrative and judicial terms. Jurisdictional function qualifies only as the application of the political command by a procedure other than the administrative one, but which can be attributed to the same. The different functions of the state were all dependent on that "fourth function": Sovereignty, languishing on production, on the implementation and application of legal norms. Within this horizon, the space of independence of the guarantee organs is only "granted" by the omnipotent political power and can be expanded or restricted according to the changing attitudes of the actual sovereign.
The model of judicial power is inspired by the fundamental criterion of vertical and hierarchical conformation of the judicial system, moderated by the existence of the Superior Council of Magistrates, which consists of high-ranking judges and prosecutors and has advisory functions. By virtue of the institutional dependence of judges by the Government, coupled with a certain degree of individual guarantees, the Fascist Rule of Law is realized. Judges are nominated, promoted, mutilated and revoked by the Duce, upon a proposal by the Minister of Grace and Justice. The public prosecutor exercises, under the direction of the Minister for Grace and Justice, the functions that the law attributes to him. Furthermore, only the legislative power, formed by the Duce and the Grand Council of Fascism, has the power of authentic interpretation. The vertical and hierarchical structure induces "hopes and fears" in the components of an institution; the hierarchical principle applied to the judiciary produces the existence of autonomy, but the impediment to independence. As ot can be noted, the judicial system is a compact building in which internal dependence is established, through the "Ranks" of the judges, and external dependence, through the executive's power to affect every development of the status of magistrates.
With the assertion of the generality and abstractness of the law and with the possibility for the judge to apply with some degree of tranquility the legislative provisions in proceedings of no great political importance protect the rule of law. The Italian regime has always brought within itself the "hidden tara" of the authoritarianism of the Head of State. The subjection of the magistracy to the Duce and its government, arising from the vertical structure of the judiciary, and the relatively secured position of the high and middle level magistrates, form part of this overall orientation.
To be admitted to judicial functions, a candidate must be an Italian citizen, of the Italian race, male, and enrolled in P.N.F., must have the right to exercise of civil rights; must have always maintained a good civil, moral and political conduct and must possess the other statutory requirements for the various functions. The magistrate is obliged to reside permanently in the municipality where the judicial office is located, where he or she exercises his duties and can not abstain without the permission of the hierarchical superiors. The magistrate who is transgressing is subject to disciplinary measures, and may be deprived of salary, by ministerial decree, for a time corresponding to abusive absence. On the other hand, Magistrates are exempt from any office or public service other than their duties, except for military service.
Limitations
The judges can not take public or private employments or offices, except those of a member of the Grand Council of Fascism or to free director of public charitable institutions. They can not even engage in industries or businesses, or any freelance profession. Magistrates may not accept assignments of any kind nor may perform arbitral functions without the permission of the Minister of Grace and Justice. In that case, they may assume the functions of arbitrator or chairman of the arbitral tribunal solely in arbitrations in which the State Administration or public companies or bodies are parties. First Presidents and General Prosecutors can not take up any assignment outside of their residence, except those assigned to them by laws or regulations or those conferred by a Decree of the Duce.
Judges of the courts of appeal and of the courts, and the magistrates of the lawsuits, cannot belong to judicial offices in the places where their relatives and relatives up to the second degree are registered in the professional registers of lawyers or attorneys or to judicial offices in which their relatives usually practice the profession of lawyer or attorney. Magistrates who have their kinship ties up to the third degree can not be part of the same court or tribunal or the same judicial office. Relatives up to fourth degree can not participate as judges of the same board in courts and tribunals.
Law
The typical Court of Cassation decision is short, concise and devoid of explanation or justification. There is no stare decisis, binding lower courts to respect superior courts' rulings (case law) on questions of law; but a line of similar case decisions, while not precedent per se, forms the costante giurisprudenza.
Criminal law
Public offences are categorized as:
- Delitti (Crimes), serious felonies, which are heard by the Assize Court
- Contravvenzioni (Contraventions), less serious felonies and minor offences and violations, which are heard by the Criminal Court
For petty violations like most traffic violations, suspected offenders may either plea nolo contendere and pay a set fine amount r contest the charge in court. The court may then find the defendant innocent or guilty, but if found guilty, they are liable to be sentenced a higher fine.
Criminal Procedure
The Code of Criminal Procedure (Italian: Codice di Procedura Penale, often shortened as c.p.c.) is in force for all criminal matters. According to the law, the trial itself is secret (i.e. privy to the parts and the judge) and conducted in written form. A suspect could not be detained for more than four days without a warrant. Thereafter, permission for detention has to be obtained from the Prosecutor or from the Courts. There is no fixed maximum period of pretrial detention.
The death penalty is applied only in cases of leze majesty, treason, espionage, terrorism, sabotage, certain types of murder, and large-scale theft of state property by officials. Otherwise, the maximum punishment for a first offender is life imprisonment. Parole is permitted in some cases after completion of half of the sentence.
The existing criminal procedure, dating from the 1930 code, divides the process into two distinct phases: the preliminary phase and the stage of judgment, highlighting many of the typical characters of the inquisitorial process, especially in the pre-trial phase. The investigative phase, characterized by secrecy, is aimed at gathering the elements needed to establish the truth. The trial phase is aimed to take the evidence; therefore it is oral and contradictory. The typical criminal proceeding is divided into three phases: the investigate phase, the examining phase, and the trial.
In this context, the task (of public law nature) of formation of the judicial evidence is entrusted to three figures: the public prosecutor, the investigating judge and the judge of the trial. Victims are not a party to proceedings, and Prosecutors act on behalf of the State and do not represent the victim. However, the victim is allowed to be represented by their own lawyer.
Investigative phase
In the investigative phase, Police forces are holders of the judicial investigations. The judiciary is responsible for ascertaining the legal validity of the evidence collected (Examining Judge) and the promotion of judicial action (Prosecutor or Examining Judge). Prosecutor collects evidence and decides whether to press charges. Prosecutors carry out investigations themselves or, most frequently, request police forces to do so. The prosecution can give general instructions to the Police regarding how particular cases are to be handled and can set areas of priority for investigations. The police may interrogate a suspect for up to 30 days and the suspect is not permitted to have a lawyer present for interrogation.
Defence lawyers are not given notice nor access to police records. The public prosecutor, a party to the proceedings, and at the same time a public body responsible for brief preliminary phases, cumulates the power to take the evidence, the power to take restrictive measures of the defendant's freedom and the direct power of archiving cases.
Examining phase
The examining phase is conducted in writing. The Examining Judge completes and reviews the written record and decides whether the case should proceed to trial. The Examining Judge (Italian: Giudice Istruttore) plays an active role in the collection of evidence and interrogation of witnesses and suspects. Prosecutors are not obliged to bring charges. The instructor judge, who holds the formal preliminary phases, combinies the duties of his office with those of the accuser. He proceeds by law in search for evidence, which he takes in secret and decides on referral of the defendant to judgment.
In some cases, an Examining Judge may carry out or oversee also the investigative phase. Examining Judges are active in a minority of cases, while Prosecutors (not part of the judiciary) supervise the bulk of investigations carried out by law enforcement agencies. Examining Judges are used for serious crimes, e.g., political crimes or murder and rape, and for crimes involving complexity, such as embezzlement, misuse of public funds, and corruption.
The Examining Judge conducts investigations into serious crimes or complex inquiries. As members of the judiciary, he is partly autonomous from the executive branch, and therefore separate from the Prosecutor which is supervised by the Minister of Justice. The Examining Judge questions witnesses, interrogates suspects, and orders searches for other investigations, whose role is not to prosecute the accused, but to gather facts, and as such their duty is to look for any and all evidence, both incriminating or exculpatory. Both the Prosecution and the defence may request the Examining Judge to act. The scope of the inquiry is limited by the mandate given by the prosecutor's office: the Examining Judge cannot open a criminal investigation sua sponte.
The Examining Judge orders the committal of the accused: if he decides there is a valid case against a suspect, the accused is sent for an adversarial trial by jury. The Examining Judge does not sit on the trial court which tries the case.
The criminal defendant does not have to answer questions about the crime itself but is required to answer all other questions at trial. A defendant is the first to testify and is allowed to see the government's case before testifying; usually, the defendant is eager to give her or his side of the story. The accused is, with some exceptions, protected from self-incrimination. During both the Investigative and Examining phases, witnesses, and suspects can have legal advisers present to stop questions straying into the wrong areas.
As a result of the thoroughness of the examining phase, a record of evidence has already been made and is equally available to the prosecution and defence well in advance of the trial. The main function of a trial is to present the case to the trial Judge and to allow the lawyers to present oral argument in public. While there is no cross- and re-examination of witnesses, witnesses are still questioned and challenged.
As a result of judicial investigation and defendants being able to have judicial proceedings dismissed on procedural grounds during the examining phase, cases where the evidence is weak tend not to reach the trial stage: the Prosecutor recommends a trial only if he is sure that there is sufficient evidence of guilt. The entire dossier of the pretrial proceedings is made available to the defence.
Trial phase
The case is tried before the court: the Prosecution seeks the conviction of accused criminals, the defence attempts to rebut the prosecution claims, and the Judge draws their conclusions from the evidence presented at trial.
At the trial the Judge assumes a direct role, conducting the examination of witnesses, often basing his questions on the material in the dossier; the trial judge can use all the minutes of the evidence collected secretly in the earlier phase. The trial phase is therefore heavily influenced by the previous investigative phase.
The defence plays, mainly in the trial phase, a role of control, of dialectical contest of any irregularities and of censorship about acts already acquired in the proceedings, which are the result of investigations carried out in the utmost secrecy by those who are prepared to check the validity of the crime offence. The search for evidence of defensive elements is admitted, although it is subject to numerous precautions; such defensive elements are to be searched for after the formal notification to the defendant of his/her referral to judgement.
Neither the prosecution nor the defence has the right to cross-examine, but they can present effective summations. A trial may last for months if not for years as the presiding judge gathers evidence in a series of hearings. The decision in a criminal trial is made by the collective vote of one to five professional judges. A two-thirds majority is usually required to convict a criminal defendant. Additional evidence during the trial (possibly produced also by defence) is admitted if the Judge decides it is relevant. It is up to the Judge to decide the value of hearsay testimony.
Judges are required to direct the courtroom debate and to come to a final decision. The Judge assumes the role of principal interrogator of witnesses and of the defendant, and he is under an obligation to take evidence until he ascertains the truth, this obligation arising from obligation to inquire into the charges and to evaluate all relevant evidence in reaching decision. Juries are generally only used for the most serious cases (courts of assize) or for specific categories of defendants.
Also due to the scarce defensive investigations, the trial phase often ends up to form an analysis, albeit argumented, of the evidence gathered during the preliminary phase.
Defensive investigations
The search for evidence of defensive elements is admitted, although it is subject to numerous precautions; such defensive elements are to be searched for after the formal notification to the defendant of his/her referral to judgement.
The investigative activity of the defence is characterized by the non-compulsory nature, for the non-mandatory completeness, for his availability, for the absence of the obligation to report any offence: the lawyer may freely assess not to deposit the document documented.
The defensive investigation is completely devoid of coercive powers. In order to compensate for the lack of coercive powers, the defence may, in order to be authorized to acquire trial evidence, refer to the Judge of the dispute before whom the defendant is referred to judgement. However, the remedies provided are not at all due, and at the same time any rejection measure is not subject to any appeal.
Public prosecution
The public prosecution is the pillar of inquisitorial model of criminal procedure.
Functions
The public prosecutor supervises the observance of the laws, the prompt and regular administration of justice, the protection of the rights of the State, legal persons and incapable persons, requesting, in cases of urgency, the necessary precautionary measures, promotes the repression of crimes and the application of security measures, make the judges and any other provision of the judge, in the cases established by law. Furthermore, the public prosecutor has general and residual jurisdiction to promote direct action to enforce and observe the laws of public order and which affect the rights of the State, and for the protection of the corporatist order, provided that such action is not from the law to other bodies attributed.
In criminal matters, the public prosecutor begins and exercises the criminal prosecution. A representative of the public prosecutor intervenes in all the criminal hearings of the courts, the courts and the trial courts (in the courts the representative of the public prosecutor is made up of an attorney, a notary or a public security official). In the absence of his intervention, the hearing cannot take place.
The attributions of the public prosecutor in the preliminary proceedings of the trial and in the hearings of the court of assizes belong to the Prosecutor General of the King at the Court of Appeal, who exercises it personally or through another magistrate assigned to his office. The Prosecutor General of the Court of Appeal appoints the magistrates of the public prosecutor who must attend the hearings, delegating, if necessary, the procurator of the king or a substitute in the court of the seat where the assize court is convened.
In civil matters, the public prosecutor exercises civil action and intervenes in the cases established by law. Without his intervention, when it is required by law, the hearing cannot take place. He also supervises the service of civil status and always intervenes in collective and individual labour hearings and in other cases established by law.
Organisation
The public prosecutor exercises, under the direction of the Minister of Grace and Justice, the functions that the law attributes to him. The functions of the public prosecutor at the Supreme Court of Cassation and at the Courts of Appeal are exercised by the Prosecutor General of the King Duce (Procuratore Generale del Re Duce) and in, the courts, by the Prosecutors of the King Duce (Procuratore del Re Duce). At the same office may be other magistrates of the public prosecution, lower or less senior of the holder.
Prosecutors and Prosecutors General exercise their functions personally or through the employees of the magistrates assigned to their respective offices. At the juvenile court a public prosecutor's office is set up which, in matters falling under the jurisdiction of the juvenile court, exercises all the functions of the public prosecutor at the courts and the others assigned to it by law. The office is hierarchically dependent on the Prosecutor General at the relevant Court of Appeal.
Judicial Police and Public Prosecution
In the district of the court of appeal, the Prosecutor General of the King has the direction and the supervision of the judicial police and of its officers and agents, who must execute the orders of the attorney general himself, in compliance with the rules of the criminal procedure code or other laws.
In the district of the court the same powers belong to the Prosecutor of the King Emperor subordinately to the Prosecutor general. In the Subdistrict the judicial police must also execute the Praetor's orders.
National Prosecutions
Within the Office of the Prosecutor General at the Supreme Court of Cassation there are three National Prosecutions. The National Prosecutions are bodies of the public prosecutor responsible for the exercise of the powers of the public prosecutor in cases concerning, in whole or in part, the specific sector for which they were established. Each National Prosecution consists of a National Directorate and 26 District Authorities, present at each General Court of Appeal.
The National Prosecutions are:
- National Anti-Mafia Prosecution;
- National Environmental Offences Prosecution;
- National Prosecution for Crimes against the Corporatist Order.
Organisation
The Italian judiciary is organised on three tiers: minor jurisdiction, ordinary jurisdiction and appellate jurisdiction; over, and partially within the top tier, there is the Supreme Court of Cassation. The judiciary is also organized on three fields of activity: criminal courts, civil and specialized courts, military courts. Justice, in civil and criminal matters, is administered by:
- Judge Conciliator;
- Pretore;
- ordinary court;
- court of appeal;
- court of cassation;
- the juvenile court;
- the supervising magistrate.
The laws of the empire and other territories subject to state sovereignty, administrative courts and any other special jurisdiction, as well as jurisdictions for military and maritime offenses, are governed by special laws. The Public Prosecutor's Office is established at the Court of Cassation, the Courts of Appeal, the Ordinary Courts and the Juvenile Courts.
Every court and conciliation office has an chancellery and each public prosecutor's office has a secretariat, which may also be established at the detached sections. Judicial officers, courtroom assistants and coadjutor of notices, executions, and protests are involved in courts and tribunals.
Judiciary
The Judiciary includes Magistrates and Honorary Magistrates. Magistrates are Uditors, judges of every rank of tribunals, of Praeture, and of courts and magistrates of the public prosecutor. Honorary Magistrates are Conciliatory judges, Vice-conciliators, Deputy Praetors, deputy prosecutors, experts of the ordinary court and the court of appeal, lay judges of the court of assise and the judges of the labour judiciary in the exercise of their judicial functions. The staff of chancelleries and judicial secretariats of each group and degree is part of the judicial order. Judicial officers are auxiliaries of the judiciary.
Governance
The judiciary is inspired by two principles that are closely related to each other: the hierarchical one, with a distinction by degrees within the judiciary, dominated by a restricted group placed in the highest positions on the hierarchical scale, and that of the 'heterogovernment' , with the attribution to the Government of extensive powers of direction and control over the judiciary.
As regards the hierarchical principle, there is a career hierarchy, which concerns all ordinary magistrates. Furthermore, for prosecuting magistrates, there is a functional hierarchy, since the prosecutor consists of offices hierarchically ordered among them (the general power of attorney at the Court of Cassation, the general powers of attorney at the Courts of Appeal and the proxies of King at the Courts) and within them. The judiciary therefore provides for a judicial "pyramid", at the top of which the Court of Cassation stands. The cassation magistrates, on whom access to the "higher" functions depends - and, therefore, the advancement in career -, exercise dominion over the judicial body.
Regarding the principle of Government control over the Judiciary, the Minister of Grace and Justice is the «Supreme Head of the Judicial Administration and politically responsible for the good order and the proper functioning of the Administration itself». He exercises, directly or through the heads of the offices, the supervision of all the magistrates (judges and prosecutors) and plays the role of director of the public prosecutor. The Minister of Grace and Justice has a strong power of influence on promotions in the highest spheres of the judiciary, since the competitions take place before committees formed by cassation magistrates appointed by him. He also has the power to propose appointments to the executive offices of president and attorney general at the Courts of Appeal and at the Court of Cassation, appointments that belong to the Duce.
Finally, the Minister of Grace and Justice is the holder of the disciplinary action and of the power to sanction judges who are judges and prosecutors for disciplinary offenses (the Disciplinary Court, formed by the first president of the Court of Cassation, who presides over it, and by four other magistrates appointed by the Minister, formulates non-binding proposals for the minister, who decides independently).
Magistrates are nominated, promoted, mutilated and revoked by the Duce, upon a specific proposal by the Minister of Justice and Grace. Any other measure is also issued by the Decree of the Duce, upon the proposal of the Minister of Justice and Grace. Any measure relating to the establishment of sections and the division of magistrates between the various offices, as well as the measures relating to the applications, replacements and substitutions of magistrates, are issued by a Decree of the Duce.
The division of judicial offices into sections, the allocation of individual magistrates to the sections and tribunals, the assignment to the sections of the presidents, the appointment of the magistrates who have the direction of sections, the assignment of assignments, the conferment of the assignments and the formation of judges are established each year by decree of the Ministry of Grace and Justice. The distribution of cases to the individual sections and to individual colleges and individual judges is carried out, respectively, by the office director and by the president of the section or by the magistrate who directs it, according directives given by the Minister of Grace and Justice. The Minister also establishes the criteria for replacing the abstained, rejected or prevented judge.
Extra-judicial powers
Any judge may, in the exercise of his duties, request the intervention of the public force and may prescribe all that is necessary for the safe and orderly completion of the acts to which he is proceeding. The magistrates of the public prosecutor have the right, in the exercise of their duties, to request directly the intervention of the armed forces.
Minor jurisdiction
At the bottom of the court hierarchy there are the Judge Conciliator (Italian: Giudice Conciliatore) and the Praetor (Italian: Pretore).
Judge Conciliator
The Judge Conciliator has conciliatory and litigation competence in civil and neighborhood matters. In the exercise of litigation jurisdiction, he decides according to law and equity. The function of Judge conciliator and vice-conciliator is free and honorary. The supervision of the conciliation offices is exercised by the judicial authorities. In each municipality there is a Judge Conciliator, with some exceptions: in municipalities divided into townships, districts, districts or municipalities, separate offices of a conciliatory judge with Decree of the Duce may be established; in the case of municipalities with a reduced population, a Conciliator may exercise jurisdiction over groups of municipalities (usually sparsely inhabited valleys subdivided in more than one Municipality per valley). Each conciliation office has, as a rule, a vice-conciliator; there may be more vice-conciliators if necessary. Chancellor functions are exercised by the secretary of the commune or other clerk of the secretariat, and those of a judicial officer from the communal servant.
Judicial conciliators and vice conciliators may be appointed among Italian nationals, male, enrolled in P.N.F., resident in the relevant municipality, who are not less than twenty-five years old. The choice must fall on elements capable of satisfying the honorary magistrate functions for independence, character and prestige. The appointment of the conciliators and vice conciliators is made by a decree of the first president of the court of appeal on the appointment of the relevant Prosecutor General.
The Judges Conciliator and vice-conciliators are in office for three years and can be confirmed. The Judges Conciliator and the vice-conciliators are removed from the office for loss of citizenship, for transfer to another municipality or for any cause of incompatibility (i.e. being part of the Judiciary or of the public security apparatus). They can be revoked for unworthiness or incompetence and may be dispensed by voluntary resignation or for being incapacitated for health reasons. The lawyer, or the attorney, who is a Judge Conciliator may not represent any of the parties nor may provide assistance before his own Conciliation office. All of these measures are issued by the First President of the Court of Appeal, upon the assent of the Prosecutor General.
Praetor
The Praetor hears contraventions, minor criminal offences such as minor assaults, and breaches of the peace. On the civil side, it hears minor civil cases and (in first instance) minor labour/corporatist cases outside the jurisdiction of the labour judge (who in turn hears the same cases in appeal). The Praetor has the jurisdiction within the relevant Subdistrict (It: Mandamento); the Praetor is headquartered in each subdistrict capital.
The Pretura is governed by the titular Praetor. One or more subordinate magistrates and Hnorary Vice-Praetors can be assigned to Preture. The subordinate magistrates assist the Praetor in the performance of his duties. Honorary honorary magistrates can not, as a rule, hold hearings except in the cases of lack or impediment of the Praetor and subordinate magistrates.
Preture with headquarters in the provincial capital are assigned magistrates with the rank of First Praetor and, as Honorary Vice-Praetors, Judicial Uditors. Graduates in law, notaries and attorneys who have completed the age of 25 may be nominated Honorary Vice-Praetors. Their appointment is made for a three-year period and can be confirmed. As a rule, no more than two Honorary Vice-Praetors may be appointed for a same Pretura, except for special service requirements. Preture with headquarters in regional capitals are divided into civil and criminal sections. A Special Section for individual disputes in Corporate matters, a Special Section for Minors Protection and a Special Section for the Protection of Maternity and Childhood may be established.
The Praetor directs the office and distributes the work between the sections. Administrative duties and the oversight of the overall performance of the services are his own responsibility.
The Praetor commences and commits criminal action for the offences he is responsible for, he executes his actions and provides for anything else that falls within the function of the public prosecutor. The functions of the public prosecutor at the hearing, in the cases provided for by law, are exercised by uditors, vice-pretors (even if honorary), public security officials and, in their absence or impediment, by the Podestà of the municipality, who may delegate the vice-podestà, or a consultor, or the secretary or deputy secretary of the Municipality. If this is not possible, a lawyer, an attorney or a notary resident in the Subdistrict is called to represent the public prosecutor at the hearing.
Ordinary jurisdiction
The Civil Court (Italian: Tribunale Civile) is the court of general jurisdiction for civil matters. Here, litigants are statutorily required to be represented by an Italian barrister. It can be composed of one Judge or of three Judges, according to the importance of the case. When acting as Appellate Court for the Justice of the Peace, it is always composed of only one Judge.
The Ordinary Court (Italian: Tribunale Ordinario, commonly known simply as the "court") is the competent court, at first instance for criminal cases that do not fall within the jurisdiction of other courts and, on appeal, to those on which it has already expressed the Praetor. Its jurisdiction is limited to a territorial district named district, which coincides with the Administrative District (It: Circondario Amministrativo).
The Court of Assizes (Italian: Corte d'Assise) is the court competent to try the most serious crimes. The Court of Assizes is a collegial judge composed of eight members: two professional judges (one is the president, the other the so-called associate judge) and six lay judges (called lay judges). Courts of Assizes have a region-wide jurisdiction.
Appellate jurisdiction
The Court of Appeal (Italian: Corte d'Appello) is a court competent to decide on appeals against civil and criminal judgements handed down at first instance by the court. Its jurisdiction is limited to a district called "judiciary district", region-wide. The Court of Appeal is a "trial court", because it decides on all aspects of the case both the questions of fact and the questions of law, confirming the contested ruling or replacing, in whole or in part, with their own.
The Court of Assizes of Appeal (Italian: Corte d'Assise d'Appello) is the court competent to hear appeals for the most serious crimes. The Court of Assizes of Appeal is a collegial judge composed of eight members: two professional judges (one is the president, the other the so-called associate judge) and six lay judges. Court of Assizes of Appeal have a region-wide jurisdiction.
Special Court for State Security
The Special Court for State Security (Italian: Tribunale Speciale per la Sicurezza dello Stato, T.S.D.S.) is a special court of the Fascist Regime, competent to judge crimes against the security of the state and the regime, in order to conciliate security needs and respect of the rule of law. The Special Court is responsible for the punishment of a series of offences "against state security" and the reconstruction of dissolved associations, organizations or parties, anti-national propaganda activities abroad, terrorism, theft of public money and possession of explosives, if it is linked to a political reason. In war, the Special Court has other fields of jurisdiction, such as treason, espionage, fraud and breach of military supplies, or political offences such as association or subversive or anti-national propaganda committed by the military.
Despite being considered a politically-oriented, biased court, the members of the court are all law experts, and their decisions are made according to the existing laws. There are instances, however, where many arbitrary decisions are taken.
The state security courts (Courts+Presidency Council) is fully part of the regular court system. The Special Court as a whole has the power to warn, admonish, and convict the political defendants deemed dangerous to public order and security of the Regime: the Special Court operates according to the rules of the Military Penal Code of War.
The defence is only allowed after the indictment and the accused may be assisted by one defender, chosen from among the officers on duty at the court or among lawyers exercising their profession. However, the Sectional President at the request of the prosecutor can exclude the assistance of non-military defence, in cases where it deems it necessary for the public interest. In the proceedings before the Special Court is not allowed bail.
The right to appeal a conviction in state security courts is limited to procedural grounds and with special limitations. Against its judgements, the appeal to the Presidency Council is allowed within thirty days from the publication of the case motivations; against President Council decisions, appeal to the Supreme Court of Cassation is allowed only under special circumstances.
Composition
The Court is unique throughout the State, but operates in five first instance sections, geographically determined. Each Section consists of:
- A President, chosen among the general officers of the Italian National Royal Army, Italian National Royal Navy, Italian National Royal Air Force, Royal Police Corps (or other police corps with military status) and the Voluntary Militia for National Security, in permanent active duty and with proven competence in legal matters;
- Five judges, chosen among officers of the M.V.S.N. having the rank of Consul in permanent active duty, and with proven competence in legal matters;
- An Amicus Curiae, without voting rights, chosen among the staff of military justice.
At the central level, there is the Court of Appeal for State Security, which hears appeals against rulings of the Sections, and a Court of Social Matters, which hears appeals regarding industrial disputes of nationwide scope.
The Presidency Council (Consiglio di Presidenza) consists of the Prime President, appointed by the Duce of Italy, of all five sectional Presidents, of the President of the Court of Appeal for State Security, and of the President of the Court of Social Matters.
Supreme Court of Cassation
The Supreme Court of Cassation (Italian: Corte Suprema di Cassazione) is the highest court of appeal or court of last resort in Italy. It has its seat in the Palace of Justice, Rome. The Court of Cassation also ensures the correct application of law in the inferior and appeal courts and resolves disputes as to which lower court (penal, civil, administrative, military) has jurisdiction to hear a given case.
Appeals to the Court of Cassation generally come from the Court of Appeal, the second instance courts, but defendants or prosecutors may also appeal directly from trial courts, first instance courts. The Supreme Court of Cassation can reject, or confirm, a sentence from a lower court. If it rejects the sentence, it can order the lower court to amend the trial and sentencing, or it can annul the previous sentence altogether. A sentence confirmed by the Supreme Court of Cassation is final and definitive, and cannot be further appealed, but the Duce may nonetheless grant grace, pardon or amnesty. Although the Supreme Court of Cassation cannot overrule the trial court's interpretation of the evidence it can correct a lower court's interpretation or application of the law connected to a specific case. The Italian judicial system is based on Civil law within the framework of late Roman law. However, in practice the decisions of the Supreme Court of Cassation usually provide a very robust reference point in jurisprudence constante. The two essential aims of the Supreme Court of Cassation are to ensure that lower courts correctly follow legal procedure, and to harmonize the interpretation of laws throughout the judicial system.
The Supreme Court of Cassation is organized into two divisions: a criminal section and a civil section. The court has a First President of the Court of Cassation, a deputy, and each section has its own president. Cases brought to the supreme court are normally heard by a panel of five judges. In more complex cases, an extended panel of nine judges ("united sections" of the supreme court) hear the case. In addition, in every case submitted to the supreme court, the office of public prosecutor must state their interpretation of the applicable law, to assist and facilitate the court, in a consultative capacity, in reaching its final decision.
The Court of Appeal judges sometimes escape the rigors of the dictates of the local Fascist boss by judgments condemning with contradictory motivations, so as to achieve by the Supreme Court "liberal" absolution for inadequacy of motivation.
Public Prosecution at the Supreme Court of Cassation
The public prosecutor at the Supreme Court of Cassation intervenes and concludes in all civil and criminal hearings, and assists in the deliberation of the decisions of civil cases. Furthermore, by virtue of the Decree of the Minister of Grace and Justice, he exercises the attributions regarding collective disputes of the work entrusted to him by law.
Ranks
All Magistrates, Judges, Prosecutors, are framed in a hierarchy. All belong to the A-Group (Officials Career) of the Civil Service; highest positions are above the A-Group.
| Magistrates' ranks | |||
|---|---|---|---|
| Civil service rank | Judges | Prosecutors | Praetors |
| XI | Judicial Auditor Uditore Giudiziario | ||
| X | Judicial Additional Officer Aggiunto Giudiziario | ||
| IX | - | - | Prateor Pretore |
| VIII | - | - | - |
| VII | - | - | - |
| VI | Judge Giudice |
Deputy Prosecutor of the King-Duce Sostituto Procuratore del Re-Duce |
- |
| V | Councillor of Court of Appeal Consigliere di Corte d'Appello |
Deputy Prosecutor General at Court of Appeal Sostituto Procuratore Generale presso Corte d'Appello |
Prime Praetor Primo Pretore |
| IV | Councillor of the Supreme Court of Cassation Consigliere presso la Suprema Corte di Cassazione |
Deputy Prosecutor General at the Supreme Court of Cassation Sostituto Procuratore Generale presso la Suprema Corte di Cassazione |
- |
| III | Sectional President of the Supreme Court of Cassation Presidente di Sezione presso la Suprema Corte di Cassazione and Prime President of Court of Appeal Primo Presidente di Corte d'Appello |
Prosecutor General at Court of Appeal Procuratore Generale di Corte d'Appello |
- |
| II | - | Prosecutor General of the King-Duce at the Supreme Court of Cassation Procuratore Generale del Re Duce presso la Suprema Corte di Cassazione |
- |
| I | Prime President of the Supreme Court of Cassation Primo Presidente della Suprema Corte di Cassazione | ||
Ministry of Grace and Justice
The Ministry of Grace and Justice (Italian: Ministero di Grazia e Giustizia) is the ministry of the Italian government which is in charge of organizing the civil, criminal and juvenile judicial administration, the magistrates and the penitentiary.
- General Inspectorate;
- Legislative Office;
- Law collection office;
- Cabinet of the Minister;
- General Secretariat;
- Central Statistics Office;
- Supreme Disciplinary Court;
- Inspectorate-General of Judicial Services;
- Directorate-General of the Judicial Organization and General Affairs;
- Directorate-General for Civil Affairs, Legal liberal professions and Notaries;
- Directorate-General of Criminal Affairs, Graces;
- Directorate-General of Preventive and Penitentiary Institutions.
The administrative functions are usually entrusted to Magistrates.
Directorate-General of the Judicial Organization and General Affairs
The Directorate-General of the Judicial Organization and General Affairs is the structure of the Ministry of Grace and Justice in charge for managing judicial personnel of all ranks and categories. In order to maintain the control of the judiciary, it is an extremely sensitive position. In general, the Directorate-General deals with the judicial organization, the personnel and related services, as well as the organization and functioning of the services related to justice, the administrative management of personnel and the means and tools necessary, of the magistrates. Furthermore, he is in charge of the study and proposal of regulatory interventions in the area of competence.
- Division I - General Affairs
- Office I - General Affairs
- Office II - Judicial districts and organic plants
- Division II - Budget and accounting
- Office I - Budget
- Office II - Accounting compliance
- Office III - Economic treatment
- Office IV - Acquisitions
- Division III - Administrative personnel and training
- Office I - General Affairs
- Office II - Training
- Office III - Competitions and frameworks
- Office IV - Personnel Management
- Office V - Pensions
- Division IV - Magistrates.
- Division V - Automated information systems
Division IV - Magistrates
Division IV - Magistrates is the most central and sensitive subdivision of the Ministry, controlling assignments and transfers of Magistrates and other Judges. In order to effectively control the judiciary, the control of Division IV is crucial. The Division is led by a Magistrate chosen among Rank IV - Councillor of the Supreme Court of Cassation or above (supernumerary) with extensive political backing and is subdivided into five Sections and 23 Offices:
- Section I - General Affairs;
- Office I - Disciplinary action;
- Office II - Honorary magistrates;
- Office III - Organic Plants;
- Section II - Administrative Affairs;
- Office IV - Economic Litigation;
- Office V - Legal and economic status;
- Office VI - Competitions;
- Office VII - Litigation relating to the competitions;
- Section III - Ordinary Judges;
- Office VIII - Transfers of ordinary magistrates;
- Office IX - Appointment and career;
- Office X - Absences and Leave;
- Office XI - Discipline;
- Section IV - Prosecutors;
- Office XII - Transfers of ordinary magistrates;
- Office XIII - Appointment and career;
- Office XIV - Absences and Leave;
- Office XV - Discipline;
- Section V - Special Prosecution;
- Office XVI - National Anti-Mafia Prosecution;
- Office XVII - National Environmental Offences Prosecution;
- Office XVIII - National Prosecution for Crimes against the Corporatist Order;
- Office XIX - Prosecution at the Special Court for State Security;
- Section VI - Special Courts;
- Office XX - Anti-Mafia Court;
- Office XXI - Environmental Offences Court;
- Office XXII - Court for Crimes against the Corporatist Order;
- Office XXIII - Special Court for State Security;
Division V - Automated information systems
Division V - Automated information systems is the Division in charge of the Ministry informatics. It is closely connected with Division XIII - Technical Services and Telecommunications and Post Police of the Directorate of Public Security. The Division is subdivided into 5 Sections, 18 Offices, 3 Interregional Directorate and 7 Interregional Centres.
- Section I - Civil and criminal justice systems
- Office I - Civil judicial systems
- Office II - Criminal Judicial Systems
- Section II - technology coordination
- Office III - Definition of procedures
- Office IV - Monitoring
- Office V - Technical opinions
- Section III - Planning, contracts, purchases and accounting
- Office VI - Financial planning
- Office VI - Acquisition of IT assets and services
- Office VII - Management of IT contracts for goods and services
- Section IV - Central administrative systems and judicial offices
- Office VIII - IT projects
- Office IX - IT Support
- Office X - IT infrastructures
- Office XI - Information systems for notarial archives
- Section V - Technological infrastructures and networks
- Office XII - Development and management of technological infrastructures
- Office XIII - Geographic network infrastructure
- Office XIV - Interconnection and interoperability services
- Office XV - Firewall management and interoperability
- Office XVI - Safety of the geographical network
- Central Office for Information systems national judicial offices
- Central Office for Penitentiary Information System
- Interregional Directorate - North
- Interregional Centre for Automated Information Systems in Genoa
- Interregional Centre for Automated Information Systems in Milan
- Interregional Centre for Automated Information Systems in Padua
- Interregional Directorate - Centre
- Interregional Centre for Automated Information Systems in Rome
- Interregional Directorate - South
- Interregional Centre for Automated Information Systems in Bari
- Interregional Centre for Automated Information Systems in Catania
- Interregional Centre for Automated Information Systems in Naples
Directorate-General for Civil Affairs, Legal liberal Professions and Notaries
The Directorate-General for Civil Affairs, Legal liberal and Notaries (Direzione Generale per gli Affari Civili, le Libere Professioni Legali e il Notariato) is responsible for the acquisition and processing of material in the civil sector, for questions concerning the application of laws and regulations in civil matters.
The Directorate-General also provides for the extension of the deadlines in case of irregular functioning of the judicial offices, the political and administrative direction of civil justice, and the examination of the requests and appeals. In addition, the General Management deals with the costs of justice, land register, proceeds due to the judicial order, revenue from stationery, stamp duties and registers. The Directorate-General supervises the International Institute of Legal Studies, supervises the corporate orders of all legal professions, notaries and notary bodies.
The Directorate-General also provides the secretariat of the National Forensic Council and of the other National Councils of the supervised Corporations and on the respective national Funds. As part of the supervision and control, the Directorate-General is responsible for the competitions and examinations of the legal professions and carries out supervision and control activities on the land registry records, on the public car register and on judicial sales institutions.
The Directorate-General is led by the Director-General for Civil Affairs, Legal liberal Professions and Notaries (usually a distinguished senior civil magistrate) subdivided into three Divisions, 14 Offices and the Central Library:
- Office of the Director-General;
- Division I - Civil Affairs;
- Office I - Law and Regulations application;
- Office II - Studies;
- Office III - Administrative guidance of civil justice;
- Office IV - Applications and Appeals;
- Office V - Term prorogation;
- Office VI - Stationery Services;
- Division II - Expenditure and Collection on Justice
- Office I - Expenditure on Justice;
- Office II - Collections from Magistrates or Officials of the Judicial Order;
- Office III - Collections from other proceedings
- Division III - Corporate professional orders and public registers
- Office I - Surveillance of Notary;
- Office II - Surveillance of liberal legal professions;
- Office III - Notarial Archives;
- Office IV - Secretariats of National Professional Councils;
- Office V - Registers;
- Central Library;
- Superior Council of Legal Corporations.
Directorate-General of Criminal Affairs, Graces, Statistics and Records
The Directorate-General of Criminal Affairs, Graces, Statistics and Records (Direzione Generale per gli Affari Penali, Grazie, Statistiche e Archivi Penali) is responsible for the supervision and control over the recovery of fines and costs of justice and on the management of judicial deposits, for the supervision and control over the bodies of crime, for the costs of legal aid at the expense of the State, for the acquisition and processing of material in the criminal and criminological sector.
In addition, the Directorate-General is responsible for supervising criminal justice services, for examining applications and appeals and for relations with the Ministry's General Inspectorate, for preparing reports and reports for national meetings in the sector. the criminal law and the instruction of the practices concerning the criminal matters pertaining to the Minister, including the requests for pardon.
Finally, the General Management deals with the management, general organization, coordination, supervision and control over the functioning of the central and criminal records.
The Directorate-General of Criminal Affairs, Graces, Statistics and Records is divided into five Divisions:
- Central Office of General Affairs and Secretariat;
- Division I - Criminal Affairs;
- Office I - General criminal policy;
- Office II - Fight against organised crime, terrorism and money laundering;
- Office III - International criminal assistance;
- Office IV - Judicial police;
- Office V - Execution of sentences;
- Office VI - Evaluation of criminal policies;
- Office VII - Juvenile Affairs;
- Division II - Graces for common crimes and for political crimes;
- Office I - Criminal measures pertaining to the Minister not subject to delegation;
- Office II - Graces for common crimes;
- Office III - Graces for political crimes;
- Division III - Conditional releases and graces for financial crimes;
- Office I - Conditional releases by law;
- Office II - Conditional releases by decision of the Duce;
- Office III - Graces for financial crimes;
- Division IV - Central criminal register;
- Office I - General organization;
- Office II - Management;
- Office III - Supervision and control over the functioning of peripheral criminal records;
- Office IV - Services to the public;
- Office V - Criminal certification;
- Division V - Criminal statistics;
Uniforms
In public hearings of courts and courts, lawyers and advocates wear uniforms. The Judiciary has two distinct uniforms: one with a toga for public sessions and audiences: the other with a dress and a sword to appear individually in an official and solemn form.
The uniforms of all the judiciary officials and prosecutors, without distinction, are composed of black coat, with a silk belt topped with tassels, black wool toga with raised sleeves and knotted at the shoulders with cords, black toque, and batista collar.
Supreme Court of Cassation
The chimere of all the judging members and of the prosecutor of the Supreme Court of Cassation is made of silk; the belt is red with gold tassels; the cords are gold. The toque is velvet with gold trim. The Supreme Court of Cassation has three ranks, identified by the toque decorations:
- The toque of the first president and the Prosecutor General of the Supreme Court of Cassation is adorned with three gallons.
- The toque of the sectional presidents and of the Attorney General of the Supreme Court of Cassation is adorned with two gallons.
- The toque of the Councillors and of the Deputy Prosecutor General of the Supreme Court of Cassation is adorned with a gallon.
The Chancellor of the Court of Cassation wears the same uniforms that are established for the Councillors of the Court of Cassation, except that the tassels of the belt and the cords of the sleeves are of silk, and the toque has a golden thread.
Courts of Appeal
The chimere of all the judging members and of the prosecutor, of the Appeal Courts, is made of silk; the belt is red with gold tassels; the cords are gold. The toque is velvet with gold trim. The Courts of Appeal have four ranks, identified by the toque decorations:
- The toque of the First Presidents of Courts of Appeal and of the Prosecutors General at the same courts is adorned with two gallons.
- The toque of the Sectional Presidents and of the Attorneys General of the Courts of Appeal is adorned with a gallon.
- The toque of the Councillors of Appeal and of the Substitute Prosecutors General at the Courts of Appeal is adorned with a cord.
- The toque of the Additional Substitute Prosecutor General is adorned with a small gold cord.
The uniforms of the Chancellors, Vice-Chancellors and Additional Vice-Chancellors of the Courts of Appeal include the touch of velvet decorated with a silk cord, and the collar of batiste cloth.
Courts of first instance
The chimere of all the judging members and the prosecutor of the Courts and Praetors is made of wool; the belt of the court officials is very dark blue with silk equal tassels in ordinary Court hearings, and silver in solemn circumstances; the belt of the Praetors is black with similar tassels of silk; the cords for the courts members are silver, the cords for the Praetors are of black silk. The toque for the courts and for the Praetors is made of silk adorned with silver. The Courts of first instance have three ranks, identified by the toque decorations:
- The toque of the Presidents of the Courts and of the Prosecutors of the King is adorned with two gallons.
- The toque of the Vice-Presidents of the Courts is adorned with a gallon.
- The toque of the judges and of the Substitute Prosecutors of the King is adorned with a cord.
- The toque of the Praetors is adorned with a thread.
The uniforms of the chancellors, vice-chancellors and vice-chancellors of the courts include the touch of velvet decorated with a silk cord, and the collar of batiste cloth.
Lawyers
The uniform of lawyers consists of a toga of black wool in the style of that prescribed for judicial officials of the courts, buttoned on the front with the sleeves edged with a gallon of black velvet, raised and knotted on the shoulders with cords and tassels of silk Black; they have the touch of black silk adorned with a chevron of black velvet, and the collar of batiste cloth.