Kara Sears
The Italian judiciary has authority over the Italian judicial police, integrating its role in the enforcement of law and order within the Italian legal system. The Italian judiciary is widely distrusted by citizens, with 54% expressing a critical view. The Italian legal system is complicated, with conflicts between different laws, some dating back centuries, and EU directives complicating matters further. There are thousands of laws, and it can be difficult to distinguish between those that are enforced and those that are not. The Italian Code of Criminal Procedure contains the rules governing criminal procedure in every court in Italy. The criminal legal process involves judges, tribunals, and assize courts, which include juries. The police have specific responsibilities, including gathering evidence, interrogating arrested or detained persons, and questioning witnesses. The Corte Suprema di Cassazione has final appellate jurisdiction on tax matters, and the Corte Costituzionale (Constitutional Court) has a monopoly over the constitutional review of legal sources.
| Characteristics | Values |
|---|---|
| Italian judiciary authority | Italian judicial police |
| Italian judiciary civil servants | Magistrates |
| Italian judiciary civil servants' responsibility | Reading and applying statutes, administrative acts, and non-constitutional sources in cases brought before courts |
| Italian judiciary civil servants' jurisdiction | Applying constitutional sources and ensuring protection and enforcement of rights created upon individuals |
| Italian judiciary civil servants' jurisdiction exclusion | Constitutional review of any legal source |
| Italian judiciary civil servants' jurisdiction exclusion authority | Corte Costituzionale (Constitutional Court) |
| Polizia Giudiziaria | Judiciary Police, a branch of the police whose duty is to help a prosecutor with their investigations |
| Polizia Penitenziaria | Penitentiary police, a law enforcement agency in Italy, operating under the Ministry of Justice's jurisdiction |
| Italian criminal system statute | Limiting the time for prosecution of all crimes, except felonies punishable by life imprisonment |
| Italian criminal system statute minimum time | Six years for delitti (felonies) and four years for contravvenzioni (misdemeanours) |
| Italian criminal system statute requirement | Definitive sentence (possibly involving three trials) handed down before the term expires |
| Italian criminal system statute of limitations | Limiting the time for enforcing a penalty, to a time provided for by law: twice the time to be served or ten years in the case of a felony; five years for misdemeanours |
| Highest Italian court | Supreme Court of Appeal |
| Italian court with final appellate jurisdiction on tax matters | Corte suprema di cassazione |
| Italian court that cannot rule on merits | Corte di Cassazione |
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What You'll Learn
The Italian judiciary's authority over the Italian judicial police
The Italian judiciary maintains authority over the Italian judicial police, with the latter operating directly under the auspices of the judicial authority as per Article 109 of the Constitution of the Italian Republic. The Italian judiciary comprises civil servants known as magistrates, who are tasked with interpreting and applying statutes, administrative acts, and non-constitutional sources in court cases, including disputes between individuals. They also possess the jurisdiction to enforce the protection and application of rights concerning individuals.
The Italian judicial police, or Polizia Giudiziaria, are responsible for enforcing law and order within the Italian legal system. They are comprised of personnel from various police forces and specific officials from public administration, as designated by law. The judicial police are responsible for conducting police activities following the commission of a crime, including gathering evidence, interrogating suspects and witnesses, and performing inspections. Criminal proceedings are initiated when the prosecutor or judicial police become aware of a crime, and the judicial police operate under the supervision of the prosecutor's office.
The Italian legal system operates within the civil law tradition, emphasising codified statutes and legal codes as the primary sources of legal authority. The system is characterised by a systematic and hierarchical arrangement of legal norms, influenced by principles such as the rule of law, the protection of fundamental rights, and the separation of powers.
The Italian Supreme Court, or Corte Suprema di Cassazione, plays a crucial role in the Italian jurisdictional system. Unlike its US counterpart, the Italian Supreme Court hears every appeal from the Appellate Court, evaluating the correct application of the law without rendering a judgment on the facts of the case. While its rulings are highly persuasive, they do not establish binding precedent, and each case is considered separately.
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The role of magistrates in the Italian legal system
The Italian judiciary comprises a series of courts and a body of judges who are civil servants. Judges and prosecutors belong to the same civil service sector, and their positions are interchangeable. The foundational attributes and roles of the Italian judiciary are delineated primarily by the Italian Constitution, supplemented by statutes of constitutional significance.
Magistracy, in Italy, designates the body of civil servants who hold one of the three independent powers of the state, that is, the judicial power or judiciary. These civil servants are known as magistrates, namely, those who are called upon by law to read and apply statutes, administrative acts and non-constitutional sources in cases brought before courts, including, but not limited to, disputes among individuals. Magistrates have the jurisdiction to apply constitutional sources and ensure the protection and enforcement of rights created upon individuals. The Italian judiciary has authority over the Italian judicial police, integrating its role in the enforcement of law and order within the Italian legal system.
The Italian judiciary consists of ordinary and special magistrates. The ordinary magistrates perform jurisdictional functions, and extraordinary tribunals may not be set up. The special judiciary is governed by separate independent bodies. The administrative magistracy operates under its own governance, as do the audit and tax magistracies.
The Italian Constitution safeguards the ordinary judiciary's independence through the High Council of the Judiciary, an institution of constitutional importance chaired by the President of the Italian Republic. It oversees appointments, promotions, transfers, and disciplinary actions. Judges and public prosecutors, once appointed, enjoy security of tenure and cannot be dismissed. They are subject to removal only with their consent or by decision of their governing body, based on specific legal grounds.
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The Italian legal system's foundation in Roman law principles
The Italian legal system has its foundation in the principles of Roman law, which evolved over a thousand years, from the Twelve Tables (c. 449 BC) to the Corpus Juris Civilis (AD 529). The legacy of the Roman Empire and its legal system, based on the rule of law, fairness, and impartiality, has had a profound and lasting impact on the development of law in Italy and beyond.
Roman law, which applied only to Roman citizens, consisted of civil law (jus civile) and the law of nations (jus gentium). The latter was developed by Roman magistrates and governors to administer justice in cases involving foreigners. This flexible legal system allowed for the application of universal principles of Roman law, while also considering the unique cultural and traditional aspects of different provinces.
The Roman legal system's influence on Italy is evident in the continued importance given to individual rights and freedoms. The Italian legal system, shaped by its complex history, including the medieval era with various city-states, has retained and built upon these Roman principles. The role of the notary public in Italy, for instance, reflects the influence of Roman law in ensuring the validity and legality of legal transactions while maintaining impartiality.
During the 19th century, Italy underwent significant legal reforms as it transitioned to a nation-state. The Napoleonic Code, with its emphasis on civil rights and freedoms, provided an excellent model for Italy's legal system, influencing the Italian Civil Code introduced in 1865, which remains integral to the country's legal framework.
While Italy's Supreme Court differs from its US counterpart in terms of caseload and selection of cases, the Italian legal system continues to reflect the foundational principles of Roman law, adapting and reforming to meet the evolving needs of its society.
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The hierarchy of legal norms in Italy
The Constitution of Italy is composed of 139 articles (with five later abrogated) and is arranged into three main parts: Principi Fondamentali (Fundamental Principles, articles 1–12); Part I concerning Diritti e Doveri dei Cittadini (Rights and Duties of Citizens, articles 13–54); and Part II, the Ordinamento della Repubblica (Organisation of the Republic, articles 55–139). It is supplemented by statutes of constitutional significance, such as the Penal Code, which has been modified to align with democratic principles, human rights, and the rule of law.
Below the Constitution in the hierarchy of legal norms are primary legislation and secondary legislation. Primary legislation includes laws passed by the Italian Parliament and regional assemblies, while secondary legislation comprises regulations and decrees issued by the executive branch. This includes legislative decrees (decreto legislativo), which are normative acts issued by the government when delegated by Parliament, and law decrees (decreto-legge), which must be confirmed by Parliament.
Tertiary norms, including local laws and regulations, form the lowest level of the hierarchy. The Civil Code and the Penal Code are central to statutory law in Italy, with the Civil Code governing both civil and commercial law. The Constitutional Court ensures compliance with constitutional law and certain rights and liberties, such as those set forth in the European Convention on Human Rights.
While Italy's highest court, the Corte Suprema di Cassazione, does not follow the doctrine of stare decisis, its rulings hold sway over lower courts. The Italian judiciary encompasses three independent judicial circuits: the ordinary judicial circuit for civil and criminal matters, the special judicial circuit for administrative, tax, and audit matters, and the Constitutional Court for constitutional review.
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The Italian Code of Criminal Procedure
The code dictates that when a crime is reported, the public prosecutor (Pubblico Ministero) must initiate an investigation, during which the suspect (indagato) can hire a lawyer to prove their innocence. The prosecutor can appoint experts for examinations and must inform the suspect if the examination cannot be repeated, such as in the case of an autopsy, so that the suspect can appoint their own expert. The suspect has the right to request their lawyer's presence during interrogations, searches, and seizures. A Judge for the Preliminary Investigations (Giudice per le Indagini Preliminari) oversees the prosecutor's actions when the suspect's personal rights are at stake.
During interrogations, the suspect must be free from any psychological or physical influence, and the police or prosecutor cannot employ methods that may impact the suspect's right to self-determination or their memory and ability to evaluate facts. Before the interrogation, the suspect must be informed that their statements can be used against them in court, and they have the right to remain silent. However, if they provide information about someone else's criminal responsibility, they assume the role of a witness regarding that aspect. Any evidence obtained in violation of these principles is inadmissible in court.
Article 111 of the Italian Constitution, which is part of the Italian Code of Criminal Procedure, outlines specific rights for criminal trials. These include the right to timely and confidential information about the nature and reasons for the charges, the provision of time and means for defence, the right to question or have questioned those who testify against them, the summoning and examination of witnesses in their favour under the same conditions as the prosecution, and the acknowledgement of any evidence in their favour. Additionally, trials are based on the equal confrontation of parties before an independent and impartial judge, with reasonable time limits set for the proceedings.
The Italian Supreme Court differs from its US counterpart in that it hears every appeal from the Appellate Court, examining the application of the law without rendering a judgment on the facts of the case. In contrast, the US Supreme Court is selective about the cases it hears, usually choosing those that resolve conflicts of interpretation, address egregious departures from judicial proceedings, or involve important questions of federal law.
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Frequently asked questions
The Italian judiciary is the body of civil servants known as magistrates, who are called upon by law to read and apply statutes, administrative acts and non-constitutional sources in cases brought before courts. The Italian judiciary has authority over the Italian judicial police, integrating its role in the enforcement of law and order within the Italian legal system.
The Italian judicial police are responsible for the following:
- Gathering evidence about a crime
- Interrogating arrested or detained persons
- Conducting lineups in the presence of defense counsel
- Making necessary sketches of the scene of a crime
- Questioning witnesses
- Interrogating suspects not under arrest or detention
- Conducting inspections
- Taking notice of the appointment of defense counsel or, in the absence of voluntary appointment, requesting the prosecutor to appoint one ex officio
- Informing defense counsel of all acts in the conduct of which they have the right to be present
- Transmitting immediately to the prosecutor records of interrogations, seizures, inspections, and searches
The highest court in Italy is the Supreme Court of Appeal, which has appellate jurisdiction and gives judgments only on points of law.
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