A.D.M.I.

Associazione  Donne  Magistrato  Italiane

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1. (Access  to the ordinary judiciary)

Access  to the profession of judge and prosecutor  takes place  through a public competitive examination  under article 106 of the Constitution.

The  competitive examination  for trainee judges or prosecutors  is announced by the Minister of Justice, following a decision of the Governing Body of the Magistracy (C.S.M., Consiglio Superiore della Magistratura) , which  establishes the number of positions  vacant. The examination committee, is appointed by the CSM and consists of judges, prosecutors and university law professors.

The successful  candidates in the public examination are appointed as trainee judges and prosecutors and assigned for training to a first instance judicial office attached to a Court of Appeal.

The length of  the training is decided by the CSM, but  is not normally less than  twelve months.

The training is organized  and supervised by the CSM with the help of other bodies (judicial councils and district commissions) and available learned judges and prosecutors.

During their  career  it’s possible  for judges  to become  prosecutors  and   it’s  also possible for  prosecutors to become judges. The CSM evaluates the  curricula  of  applicant  magistrates and  their specific  competences  and comes to a decision  about  the  appointment.

This system doesn’t discriminate  against women. In fact, at the moment the total of serving magistrates is some 9107, of which 5437 are men  and 3670 are women.

However, there is indirect discrimination against women magistrates when the C.S.M.  appoints the heads of offices or departments.

    2. (The recent reform)

Although the  single examination continues, the recently  approved reform has introduced a marked separation between judges and prosecutors.

At the moment  to take part  in the public  examination, the candidates have to declare if they want  to take up a career as either a judge or as a prosecutor.

This choice, although not supported by any experience in these roles, is an indication of the candidates’  preference  for their  first assignment.

Within  the first three years of their career, the magistrates may – if they wish - take part in an examination which would allow them to pass from the one role to the other.

Alongside this career  separation is a centralization of  the prosecutors’ offices , so that all autonomy is removed from individual prosecutors and the head of the prosecutors’ office will have exclusive  responsibility for criminal cases  and for  prosecuting  them correctly.

Career progression is subject to a series of qualification evaluations and examinations under the control of a commission  composed of judges and university professors:  this system  presents a serious risk of endangering the internal independence of magistrates and producing conformity.

It also appears to clash with  the constitutional  principle by which magistrates are identified only by function, and it tends to deprive the C.S.M. of its power as the governing body of the magistracy.

This reform  has been approved  in spite of   strong opposition  by  Italian magistrates  , who   went  on strike three times. This  was  very  unusual action for  judges and prosecutors to take.

The new system – we think -  will discriminate  against women. For example, women magistrates  will suffer all the disadvantages of a dual role (family responsibility and  professional role), in a situation which is made more competitive  by the introduction of examinations for career progression.

Besides, it will be difficult for women to pass from the prosecutor function to that of judge  and  vice  versa. In fact, if a prosecutor wishes to become a judge  or  a judge wishes  to become  a prosecutor they will have to transfer to another Court of appeal district.

It will be very difficult for women magistrates  to leave their families to  develop and  progress their careers.

 

3. (Independence  and autonomy of the  Judiciary)

In our  judicial system  considerable importance is attached to the independence and autonomy of the judiciary. This is due to the underlying Constitutional principles and to our country’s history.

Regarding the  first point, it should be remembered that Italy is a civil law country. This means that  laws - i.e. the laws used in a case and  to  be applied in solving it - are made by other public bodies:  judges  participate in the law-making process only indirectly.

Under the Constitution  the neutrality of judges is ensured by  the provisions concerning : a) access  to justice  to defend  individual rights;  b) the establishment of judges by law; c) a prohibition against setting up extraordinary or special courts; d) the requirement that judges be subject only to  the law.

As to the second point, our history,  it should be noted that our system was developed  in its current version after World War II based on a republican Constitution, whose  democratic character contrasted with the previous  authoritarian regime.

In essence, magistrates carry out their same functions until they retire, unless appointed to a managerial role, such as, for example, in the Ministry of Justice.

As regards disciplinary action against magistrates, it is possible in the more serious cases to dismiss them from the Magistracy. However this occurs only rarely. The decision is taken by the disciplinary committee of the C.S.M. and can be appealed before the full bench of the Court of Cassation.

 

4. (Summary of the main points of the New Reform)

What are  the guide lines  in the new system as presently approved?

The new system  provides :

a) continuation of a single public examination for judges and prosecutors, but a nett separation of these functions. This is only the first step towards a real separation of career paths and a possible progressive control of public prosecutors by the executive;

b) a reduced possibility for prosecutors and judges to move from the one role to the other;

c) a  reduction in the final decision making ability of individual prosecutors and an increase in the power of the chief prosecutor;

d) the introduction of regular examinations for career advancement purposes;

e) the obligation to officially investigate all complaints (for example, by members of the public) made against magistrates.

Taken to extremes, such uncontrolled official investigations of matters, which may be unfounded, could negatively affect the way magistrates carry out their work.

These are only a few of the negative aspects of the reform, which has been strongly attacked by Italian magistrates and also by the Italian Women Magistrates Association.

The reform is still being introduced and is not yet completely defined or in force. In part this is because of some practical difficulties in interpretation and application which have emerged during the attempt to produce the final detailed provisions.

We really hope for some corrective amendments to be introduced by the new Parliament.

Emma Rosati [1]

Relazione   tenuta da  Emma Rosati per  l’ADMI  alla ottava Conferenza biennale  della IAWJ -   Sydney (Australia)