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

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:

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.

EXTERNAL INDEPENDENCE

Article 104: The Judiciary branch is autonomous and independent of all other powers. The High Council of the Judiciary is presided over by the President of the Republic. The first president and the general prosecutor of the Court of Cassation are members by right. Two thirds of the members are elected by all the ordinary judges belonging to the various categories, and one third are elected by Parliament in a joint session from

judges. The High Council of the Judiciary, in accordance with the regulations of the Judiciary, is responsible for these matters. The Council is composed of university professors of law, lawyers with fifteen years of practice, and members designated by Parliament. A vice-president is elected from among the designated members by Parliament. Elected members serve a four-year term and cannot be immediately re-elected. While in office, they are not allowed to be registered in professional rolls, serve in Parliament, or on a Regional Council. Article 105 IC states that the High Council of the Judiciary has jurisdiction over employment, assignments, transfers, promotions, and disciplinary measures of judges. These decisions are made by an independent body, not the government. Some members of this body are elected by Parliament, but they make up the minority. The majority of members are elected by judges. The President of the Republic presides over this body.giudici al fine di evitare un'influenza del governo sui giudici. INDIPENDENZA INTERNA 1. NOMINA DEI GIUDICI Come vengono selezionati e nominati i giudici? Questa decisione viene presa sulla base di alcuni concorsi, come stabilito dall'art. 106 del IT. Articolo 106 IC: I giudici sono nominati mediante concorsi. Pertanto i giudici non vengono eletti, non c'è una ragione politica dietro la nomina dei giudici. Viene effettuata solo una valutazione tecnica. 2. ASSENZA DI GERARCHIA ALL'INTERNO DELLA MAGISTRATURA Articolo 101.2 IC Articolo 107.3 IC (...) (...) I giudici si distinguono solo per le loro diverse funzioni. (...) 3. SICUREZZA DELLA TENUTA Articolo 107 IC I giudici non possono essere rimossi dall'incarico; non possono essere licenziati o sospesi dall'incarico o assegnati ad altri tribunali o funzioni se non con una decisione dell'Alto Consiglio della Magistratura, presa sia per le ragioni e con le garanzie di difesa stabilite dalle disposizioni concernenti l'organizzazione della Magistratura o con il consenso del

Judges themselves. The Minister of Justice has the power to originate disciplinary action. (...) The same is valid for public prosecutor: Article 112 IC: The public prosecutor has the obligation to institute criminal proceedings.

ORGANIZATION OF THE JUDICIAL POWER

Article 108 IC: The provisions concerning the organization of the Judiciary and the judges are laid down by law. The law ensures the independence of judges of special courts, of state prosecutors of those courts, and of other persons participating in the administration of justice.

UNITY OF THE JURISDICTION… art. 102

The unity of jurisdiction is established under of the IT Article 102 IC: Judicial proceedings are exercised by ordinary magistrates empowered and regulated by the provisions concerning the Judiciary. Extraordinary or special judges may not be established. Only specialized sections for specific matters within the ordinary judicial bodies may be established, and these sections may include the participation of qualified citizens.

who are not members of the Judiciary. The law regulates the cases and forms of the direct participation of the people in the administration of justice. Extraordinary or special judges may not be established. art. 103

However, at the same time, the constitution recognizes SOME SPECIAL JUDGES:

Article 103 IC:

The Council of State and the other organs of judicial administration have jurisdiction over the protection of legitimate rights before the public administration and, in particular matters laid down by law, also of subjective rights.

The Court of Auditors has jurisdiction in matters of public accounts and in other matters laid down by law.

Military tribunals in times of war have the jurisdiction established by law. In times of peace, they have jurisdiction only for military crimes committed by members of the armed forces.

ORDINARY: Criminal and civil matters

ORDINARY JUDGES:

Three are the kinds of SPECIAL JUDGES:

ADMINISTRATIVE JUDGES: also advising the

COUNCIL OF STATE

The Council of State is responsible for handling administrative matters related to legitimate interests.

2. TAR – Administrative Regional Tribunals

The Administrative Regional Tribunals are responsible for dealing with administrative matters related to legitimate interests.