Riassunto esame Fundamental rights, Prof. Cossiri Angela Giuseppina, libro consigliato The Constitution of Italy. A Contextual Analysis, Lupo Cartabia

The judiciary empowerment - rise of judiciary power

No (more) judge only bouche de la loi (iurisdictio → ius-dicere): Judges were allowed only to declare what the law already was. At the beginning of the emergence of Liberal States, the idea of judges as interpreters started to rise. The principle rules which empowered judges were:

Empowering principles

• Interpretation according to the Constitution
• EU integration → National judges are not only called to apply national law, but also EU law. Therefore, they are EU judges. Conflicts between national and EU law are solved by judges. ECtHR case law.
• ECHR → Interpretation according to this convention introduced a series of fundamental rights. Before the European Convention of Human Rights, judges used to apply national legislation.
• Judicialization of political issues

Basic principles

The fundamental law regulating judicial powers is Article 24 IC: All persons are entitled to take judicial action to protect their individual rights and legitimate interests. The distinction between individual rights and legitimate interests is typically Italian. On the basis of this separation, there are different judges. They are both fundamental rights. From an Italian perspective, legitimate interests are fundamental rights that confront the public administration. In other cases, we have individual rights.

The right to defense is inviolable at every stage and instance of legal proceedings. The indigent shall be assured, by appropriate measures, the means for legal action and defense in all courts. The conditions and means of redress for judicial errors shall be determined by law.

Article 25 IC: No one may be removed from the jurisdiction of the natural judge pre-established by law. (...) In other words, public authorities cannot establish extraordinary ex-post facto judges.

Article 111 IC: General principle of Fair Trial. Jurisdiction is implemented through due process regulated by law. Therefore it’s the Parliament and primary sources of law that discipline the principle of fair trial.

Independence (external and internal)

Independence can be understood as external (deriving from other powers) or internal (independence of judges in respect of other judicial bodies).

Article 101 IC: Justice is administered in the name of the people. Judges are subject only to the law. Principle of separation of powers →

External independence

The external independence is granted by the High Council of Judiciary: it deals with the organization and careers of judges. Therefore, dependencies among judges are not a government task, but of the High Council of Judiciary.

Article 104: The Judiciary branch is autonomous and independent of all.