Introduction
Basic Facts about the Country
Basic Facts about the Judiciary
Judicial Governance
Distribution of Responsibility
Challenges
Positive Developments & Achievements
Rankings and Surveys
Expert Recommendations
Compliance with European Courts' Judgements
Further Readings
Italy
Basic Facts about the Country
Membership of the European Union
1 January 1958
Membership of the Council of Europe
5 May 1949
Entry into force of the European Convention on Human Rights
26 October 1995
Basic Facts about the Judiciary
Budget per inhabitant
€ 53.40 (2020 data) European Commission for the Efficiency of Justice (CEPEJ)
Overall number of judges
Number of professional judges per 100,000 inhabitants
11.90
Tiers in the ordinary court system
3
First Instance Courts
136
Higher Courts (appeals)
26
Court of Cassation
1
Constitutional Court
Yes
Fifteen members: five appointed by the president, five elected by the Parliament, and five elected by the ordinary and administrative supreme courts. Candidates need to be either experienced lawyers, full professors of law, or former judges of the Supreme Administrative, Civil or Criminal Tribunals. The members then elect the president of the Court. The president is elected from among the members, by secret ballot. The Constitutional Court decides in exclusivity on disputes regarding the constitutionality of laws.
Public Prosecutor
The structure of the prosecution service mirrors that of the courts.
Judicial Governance
Type of governance system
High Council of Magistracy (Consiglio Superiore della Magistratura, or CSM)
- Prior to a June 2022 Reform: 27, including 24 elected for four years (16 magistrates and eight lawyers or law professors), and three ex officio members (the president of the republic, and the president and the prosecutor general of the Court of Cassation). Since June 2022: 30 members (20 magistrates elected by peers, and 10 members elected by the Parliament).
- Chair: president of the republic. Vice chair: elected by the Council from among its non-magistrate members.
- No possibility of immediate re-election
- No possibility of removal, other than when magistrate members are discussed through a disciplinary process.
Court Presidents
- Appointed by the Judicial Council; the Ministry of Justice gives an opinion
- Term of office: four years, renewable once, upon the assessment of the Council
Judicial boards ‘consiglio giudiziario’
- Issuing reasoned opinions, including with regards to the professional evaluation of magistrates and their promotion
- Presided over by the president of the Court of Appeal
- The proportion between magistrates and other members is two-to-one (boards were opened to lawyers in 2006, in the name of greater openness).
Board of the High School of Judiciary
- Twelve members, including seven magistrates, appointed by the Council, and five members, appointed by the Ministry of Justice from among professors and lawyers
Judicial Associations
- National Association of Magistrates – ANM
- There are separate associations for administrative magistrates, military magistrates, magistrates of the Court of Audit, etc.
- There is also an association of women judges.
- For more information in Italian, see https://rm.coe.int/italy-fr-reply-questionnaire/16809f95ef
Distribution of Responsibility
- Recruitment
- Promotion
- Transfers
- Disciplining magistrates
- Professional appraisal
- Extra-judicial appointments
- Selection and appointment of court
- presidents
- Rules for creating work schedules
- Opinions on bills
⦁ Managing financial, personal, and material resources
⦁ Organisation and supervision of courts
⦁ Inspection powers (in the hands of the General Inspectorate of the Ministry, which is composed only of magistrates)
⦁ Instigating disciplinary proceedings against magistrates (the same powers are in the hands of the general prosecutor)
⦁ Selection of court presidents – giving consent to candidates proposed by the CSM
⦁ Administration of courts
⦁ Assigning judges to sections
⦁ Assigning cases to court sections/judges
⦁ Creating work schedules
⦁ Participation in professional evaluations
⦁ Participation in professional evaluations
⦁ Creation of work schedules
⦁ Preparation of the CSM’s decisions
⦁ Providing advice in the procedure for assigning judges and cases
⦁ Election of CSM members (de facto)
⦁ Functioning of the CSM (de facto)
Challenges
Slow proceedings
Despite improvements, the length of proceedings remains a significant challenge. Italy scored considerably lower than the regional average with regards to the length of both civil and criminal proceedings, according to the World Justice Project Rule of Law Index 2023. Italy has been found in violation of the European Convention on Human Rights on account of the length of proceedings, and these judgments are pending implementation under the supervision of the Committee of Ministers. These applied to civil proceedings (Musi v Italy), criminal proceedings (Ledonne v. Italy no 1), and administrative proceedings (Abenavoli v Italy).
Civil society organisations have pointed out that the total number of pending civil and criminal justice cases has decreased considerably but, while the situation is improving thanks to reforms in the judiciary system, the problem of lengthy proceedings has not yet been solved. The length of proceedings, particularly in civil justice, represents a threat for journalists and other media workers, who are victims of strategic lawsuits against public participation (SLAPPs).
Issues with the functioning of the Judicial Council
In Italy, a major concern has been the influence of professional associations of magistrates on decision-making in the High Council for Magistracy. The magistrate members of the Council were historically grouped based on their membership in these professional associations. As a result, associations could influence decision-making informally, through coordinated voting within these groups and through vote trading between various groups. Reports indicate that council groups divide top positions in courts. It was revealed in 2019 that the former president of the magistrates’ association and former Council member Luca Palamara sought to influence high level appointments through his networks. This greatly affects public trust in the justice system. The level of perceived judicial independence continues to be low among the general public, and is now also low among companies.
As regards non-magistrate members, assuming that the Parliament selects them based on party affiliations, rather than merits, there is a risk of political dependence. However, non-magistrate members’ limited knowledge of the system and inability to effectively coordinate among themselves creates a power asymmetry between them and magistrate members of the Council, and gives magistrates an upper hand.
There have been efforts to formalise procedures to counter informal distortions. The adoption of new formal rules in 2022 in the areas of appointments of court presidents – with an emphasis on the selection of candidates based on experience – are part of these efforts. The reform also changed the method of electing the Council’s magistrate members, to reduce the influence of magistrates’ professional associations in the choice of candidates and secure the representativeness of the Council membership. The first elections took place already on 18-19 September 2022 for magistrate members elected by their peers, and on 17-19 January 2023 for non-magistrate members elected by the Parliament. More time is needed to assess the effectiveness of these changes. Implementing legislation is expected to be adopted to address concerns regarding independence. There have still been concerns regarding the implications of reforms for judicial independence. More time is needed to determine the effects of the reforms to a full extent.
Positive Developments & Achievements
The Constitutional Court is perceived as a safeguard against abuse of power by the executive. The Court cannot be controlled by the executive, since its members are appointed partly by the president of the republic, partly by the Parliament in joint session, and partly by the judiciary.
After a considerable delay, on 16 June 2022, the Italian Parliament approved the new law concerning the High Council for the Magistracy. The law modified the method of electing the Council’s magistrate members, to secure its greater representativeness and enhance its independence vis-à-vis judicial associations known for their influence on elections. The same law introduced stricter rules on “revolving doors” for the judiciary and other positive provisions, thereby addressing the concerns of the Council of Europe’s Group of States against Corruption (GRECO).
Comprehensive civil and criminal justice reforms have been adopted as part of the commitments of the Italian Recovery and Resilience Plan, aiming at improving the quality and efficiency of the justice system. Efficiency has continued improving in both civil and criminal proceedings.
Rankings and Surveys
Expert Recommendations
Overall, concerning the recommendations in the 2022 Rule of Law Report, Italy has made;
- Significant progress on continuing the efforts to further improve the level of digitalisation of the justice system, particularly for criminal courts and prosecutors’ offices.
- On this basis, and considering other developments that took place in the period of reference, and in addition to recalling the commitments made under the national Recovery and Resilience Plan relating to certain aspects of the justice system and the anti-corruption framework, it is recommended to Italy to:
- Continue efforts to further improve the level of digitalisation for criminal courts and prosecutors’ offices
European Commission, Rule of Law Report, 2023
Adopted by GRECO at its 91st Plenary Meeting (Strasbourg, 13-17 June 2022)
Recommendation x
- GRECO recommended:
- (i) that a restriction on the simultaneous holding of the office of magistrate and that of a member of local government be laid down in law; and more generally
- (ii) that the issue of political activity of magistrates be dealt with in all its aspects at legislative level, given its impact on the fundamental principles of independence and impartiality, both real and perceived, of the judiciary.
- 48. GRECO takes note of the developments reported by the authorities. The draft legislation regarding restrictions of political activity of magistrates, including simultaneous holding of the office of magistrate and that of elected or appointed government office, appears to be evolving in the right direction. That said, the draft legislation has been in preparation for some time now, and, in spite of further progress, has not been adopted yet13. Therefore, GRECO still cannot consider this recommendation as implemented more than partly.
- 49. GRECO concludes that recommendation x remains partly implemented.
• Bring the regulation of life sentences into compliance with international standards.
• Ensure the application of fair trial rights within the criminal justice system
Compliance with European Courts' Judgements
Court of Justice of the European Union (CJEU)
State Performance
0
European Court of Human Rights (ECtHR)
State Performance
Very serious problem
Implementation record
59
63 %
74
months
Judgements with pending implementation
Selected on relevance to the judiciary / rule of law
Rizzotto v Italy (no 2),
The case concerns the procedural safeguards aimed at guaranteeing an effective judicial review of the lawfulness of a pre-trial detention order for a suspected person who cannot be traced (violation of Art. 5 § 4).
The authorities submitted preliminary information on 18 January 2021 and 29 March 2021.
Bilateral contacts are to be carried out between the Department for the Execution of Judgments and the Italian authorities with a view to the submission of an action plan/report to the Committee of Ministers.
20983/12,
12-05-2019
Muso v Italy,
The ECtHR found the violation in connection with excessive length of civil proceedings. In its last examination in December 2021, with regards to the general measures, the Committee of Ministers noted the encouraging results achieved regarding the average length of civil proceedings before courts of first instance and specialised company courts and encouraged the authorities to continue closely monitoring the impact of the measures adopted in order to consolidate these results and further reduce the average length of contentious civil proceedings. The Committee also noted with satisfaction the consolidation of the positive trend in backlog clearance observed since 2011 and encouraged the authorities to continue their efforts to achieve the complete elimination of the multi-year backlog and to provide the Committee with updated information. With regards to civil proceedings before the Court of cassation, it noted with concern a negative trend in terms of an increase of such cases and their average length.
40969/98,
14-03-2000
Ledonne v. Italy no 1,
This case (formerly part of a group of 163 cases) concerns the excessive length of criminal proceedings (violation of Article 6 § 1). At its Human Rights meeting in September 2018, the Committee of Ministers closed its supervision of 162 cases of this group in which the question of the individual measures was settled. The Committee decided that the remaining questions concerning the general measures will continue to be followed in this case.
In its last examination in 2021, the Committee of Ministers took note of the progress achieved as regards the average length of criminal proceedings and the clearance of the backlog of criminal cases before the Court of Cassation and the courts of the first instance; underlined the key importance of ensuring that the positive trends are further consolidated and that further progress is made in streamlining the proceedings before the courts of appeal, so that this longstanding problem can be definitively be settled, and noted in this context that the authorities are considering new legislation action to improve further the efficiency of the criminal justice system; firmly reiterated calls to the authorities to continue close monitoring the situation and to provide detailed assessment of the results achieved, together with updated comprehensive statistical data;
35742/97,
12-08-1999
Abenavoli v Italy
The Abenavoli group of cases concern the excessive length of proceedings before the administrative courts since the 1990s (violations of Article 6 § 1). In its last examination in 2021 the Committee invited the authorities to continue monitoring the impact of the measures adopted including in 2021 on the global average length of administrative proceedings and called upon them to provide to the Committee their detailed assessment of the situation, based on complete and up to date statistics to enable the Committee to carry out comprehensive and possibly conclusive assessment of the status of execution of these judgments.
25587/94,
02-09-1997