JOINT PROGRAMME BETWEEN THE EUROPEAN COMMISSION AND THE COUNCIL
OF EUROPE FOR ALBANIA
SEMINAR ON THE PERFORMING OF THE JUDICIAL ADMINISTRATION IN THE
ALBANIAN COURTS
Tirana, 2002 December,
17th - 18th
ITALIAN JUIDICIAL SYSTEM
1. THE COUNTRY
Italy has a surface of 301.603 km2 and nearly 56.700.000 inhabitants.
It is a republic and a parliamentary democracy.
It is divided in twenty regions; five of them exercise a higher degree of autonomy (with
signs of self-government and legislative competence more extended than in the other
regions), according to a special linguistic or historical background (Valle d'Aosta;
Trentino Alto Adige; Friuli Venezia Giulia; Sicilia; Sardegna).
The judicial matter is excluded from the devolution.
Constitution is the main chart; it contains the basic principles of the State.
It came into force in 1948 and it is still substantially valid (only a few amendments have
been brought to it).
Its third article grants the citizens social and legal equality, regardless of sex, race,
language, religion, political opinion, personal or social standing; the Italian Republic
must remove obstacles to freedom and equality.
The Presidency of the Republic is the highest rank in the State administration. It is the
representative charge of the unity of the nation. The President is elected by the
Parliament for seven years. He appoints the Premier, has to undersign law texts and can
dissolve the Parliament, except during the last six months of his term of office.
The main powers of the Republic are: the legislative, the executive, the judiciary. They
must keep separate, to guarantee their independence.
The legislative power is vested in the Parliament (Chamber of Deputies and Senate); the
Counsel of the Ministries represents the executive power, the government; the judiciary is
exercised inside the judicial system.
Government and the Parliament conduct national politics jointly.
Judiciary extends over various areas:
- civil, criminal and juvenile facts: this is the ordinary judiciary,
with judges and public prosecutors independent and subject only to law; in this speech we
will examine this area;
the other judiciaries are less independent and more connected to government:
- in administration: Regional Administrative Tribunals and the Council
of State;
- in public bookkeeping: Court of Accounts (an auditing court), with the
corresponding public prosecutor bureau;
- in military affairs: Military Tribunals, in two degrees, with the
connected public prosecutor bureaux;
- about taxes: Tributary Commissions, in two degrees.
2. ORDINARY JUDICIAL SYSTEM (a general view)
Courts are so set up:
? at the first degree of jurisdiction:
- giudice di pace - justice of the peace; to deal with the less
important facts (both in criminal and in civil matters); they are honorary (not
professional) judges;
- tribunale - tribunal; to solve the more serious questions;
- ufficio di sorveglianza - penal office, first degree of the penalty
justice (questions about prisoners, definitively convicted);
- tribunale per i minorenni - juvenile court;
? to obtain a revision of the first decision, about both the factual plane and the rules
interpretation:
- corte d'appello - court of appeal;
- tribunale di sorveglianza - penal tribunal, second degree (and in some
matters first one) in the penalty justice;
? to obtain a revision at the highest level, with a competence only about the rules
interpretation
- corte di cassazione - supreme court (with an overall competence also
as last degree of the other jurisdiction, for defects of legitimacy).
Inside the main tribunals, there are also special sections, corte d'assise (court of
assizes, a sort of jury court), made up of two professional judges and six jurors, taken
from the citizens for short periods, to cooperate and represent the people inside the
judicial system. These courts take decisions about the worst criminal facts (blood facts
and similar).
The "magistrates" to play the role of the public prosecutors in the trials are:
- procuratore della Repubblica presso il Tribunale - chief prosecutor at
the tribunal - and his sostituti procuratori - deputy attorneys -;
- procuratore generale presso la corte d'appello - chief prosecutor at
the court of appeal - and his sostituti procuratori generali - deputy general attorneys -;
- procuratore generale presso la corte di cassazione - chief prosecutor
at the supreme court - and his sostituti procuratori generali - deputy general attorneys.
Another important judicial bureau, with special investigation powers, is the direzione
nazionale antimafia - a prosecution office against mafia's felonies -; it has a large
competence in the whole Italian territory, with deputy offices in the main prosecution
bureaux (usually, one or two per region), the direzioni distrettuali antimafia.
In Italy, the role of public prosecutor is played by career judges, who exercise their
functions under the supervision of the chief of their bureau. This is a kind of
hierarchical relation, that is not typical of the offices of the judges.
There is an intense debate about careers separation between public prosecutors and judges,
because the choose has political effects .
The institutional task of the public prosecutors is to ensure that laws are observed and,
when violated, their office shall initiate without external impulse (with the exclusion of
the less serious crimes, which request also a claim by the victim): bringing a criminal
action against somebody, investigating, supplying the charges with evidences and filing
the trial records is for them a duty, to repress every crime, at least theoretically
(because of the high number of criminal facts to prosecute).
The scenery of the offices in the list above, took place in June 1999, inside a big system
reform, which unified the former two first-degree offices (pretore + tribunale) in the
tribunal (the pretore was abolished) and established a competence of a "judge sitting
alone" (giudice monocratico), to improve the productivity of the tribunals.
This reform (we call it the one of the "giudice unico di primo grado", unique
first-degree judge) touched both the civil and the criminal proceedings (with a gap of
some months) and there were big hopes around its possible results.
In the general opinion, people still see no improvement in the judicial efficiency, in its
efficacy and effectiveness, probably, because the change was not accompanied by
organizational and financial supports.
3. ADMINISTRATION IN THE ORDINARY JURISDICTION
Judiciary is one of the most important function and institution provided by the State
towards the citizens, with the goal of restoring violated rights, in conditions of
equality of all the people involved.
The function of judge, as the one of public prosecutor, is exercised by members of the
judicial profession (in the Italian system, we call it an "order"), whereas the
administrative function is carried out by the Ministry of Justice.
According to the Constitution, that among the government structures names our Ministry and
not the others (just because of the special position, role and relationship with the
jurisdiction), judges are assigned to courts in a certain area of competence, after a
public exam, in accordance with their choose.
They cannot be assigned, promoted, removed, transferred, punished without a deliberation
of the Consiglio Superiore della Magistratura - C.S.M., Superior Council of the
Magistrates -, taken with special guarantees for them.
Everything related to the magistrates must be valued by the C.S.M., which protects the
independence of the magistrates and their status.
The President of the Republic presides over the C.S.M.
The Minister carries out his administrative and organizational functions at two levels:
- within the Ministry structures (dipartimenti - departments -), mainly
in Rome and, for special areas of competences, also in local sections;
- by the judicial offices - tribunals, courts, and so on -.
But, as told before, in the judicial offices we have judges and chief judges.
Judicial function is exercised by judges (or public prosecutors); the administrative
function is in charge on the personnel assigned to judicial services. This context
sometimes generates at least problematic situations, when it is not enough clear who
features the leadership and who has the authority in a specific matter.
At the top level of the courts, we have both the roles:
- a chief "magistrate", who should dedicate to the
jurisdictional direction and, anyway, has the last word on the decisions involving the
whole bureau;
- a chief manager (dirigente), who should be dedicated to the
organization (but he is not independent and actually responsible, because of the previous
point).
4. THE MINISTRY OF JUSTICE
Being the only Ministry mentioned in the main chart, the judicial services area occupies
an important position within the framework of the Italian Republic.
According to the articolo 110 Costituzione, the Minister is directly responsible of the
organization of and carrying out of the administrative services for justice.
Due to the articolo 107, he has some powers also towards the judges (e.g., to propose the
disciplinary actions, to give his consent in the appointments of the top positions in the
"tribunals", but the proceedings and the decisions belong to the C.S.M.).
He has also symbolic charge, like being the keeper of the State seal.
He can "rule" inside the Ministry; he is the source for laws passed by
Parliament and also for their publication in the State Gazette, as well as in the official
collection of laws.
Other competences:
- employing and managing of the personnel, the services, the offices;
- providing of branches and facilities with suitable structures and
equipments.
The Ministry has four departments:
- affari di giustizia - judicial affairs -;
- organizzazione giudiziaria, del personale e dei servizi - organization
of the judiciary -;
- amministrazione penitenziaria - penal administration - ;
- giustizia minorile - juvenile justice -.
Nearby to the Minister there are "offices of direct cooperation with the
Minister" and others; considering them together, we could define them the advising
staff of the Minister:
- gabinetto - the cabinet -;
- ufficio legislativo - legislative office -;
- ispettorato generale - general inspective bureau -;
- ufficio coordinamento attivit internazionale - coordination bureau
for international activities -;
- servizio controllo interno - internal control service -;
- portavoce del ministro - speaker of the minister -;
- ufficio stampa e informazione - press and news bureau.
In the departments there is the core business of the Ministry:
- judicial affairs; in the criminal matter: authorization for legal
action, when requested; extradition and international legal assistance files; filing of
the clemency proceedings; in the civil matter: professional associations auditing; care of
the notary archives; etc.;
- organization of the judiciary, the personnel and the services: the
registrars' management at the "courts", in a large sense and in all their sides
(public exam; nominee; training; retiring); goods provision for the justice palaces;
information technology; accountability; statistics; etc.;
- penal administration: treatment of the prisoners; facilities in the
penitentiary matter; training of the personnel of the prisons; etc.;
- juvenile justice: all matters in the previous items, in the juvenile
field.
In the delicate relation with the Superior Council of the Magistrates, the Minister can
intervene in the process of nominating the chief of a court, can take part in the sessions
of the Council, can ask for a disciplinary action against a magistrate; can give
explanations.
He can demand information about the functioning of the judiciary and carries out a
supervisory function in a sort of administrative investigation (inspection), regularly
(every three years, circa) or in special cases (extraordinary inspection).
RESOURCES 1999 in billion 2000
in billion
FINANCIAL SUPPORT Lit. 10.381
10.823
% compared with the overall state budget 1.40
1.40
Expenses for the personnel Judges Lit. 1.751,8
1.310
Officers and Technicians Lit. 3.106,2
2.161,8
Police officers in the penal system (penitentiary personnel)
Lit. 2.323,2 1.754,69
Costs for assets, services and operations
Lit. 1.858,7
2.392,5
Information technology costs
345,6
Personnel Judge Lit. 8.914
Officers and technicians Lit. 50,219
Police officers in the penal system Lit. 42,219
Source: Rechtspfleger. Statute and duties. Comparative study, European Union of
Rechtspfleger (E.U.R.), Eigenverlag, 2001.
At the moment, the economical situation in Italy is not as brilliant as one could desire.
The big changing and reforming movements that the last (and the new) governments say they
would have realized (or wish to realize in the next future) request a lot of money: for
instance, information technology new instruments cost much money (realizing Local Area
Networks, buying computers, producing adequate and specific software, distributing and
upgrading them, training of the personnel…: this cannot be at "no cost").
In a general crisis, it is very difficult to get enough to sustain both the projects in
course and the new ones.
In the meantime, in all the judicial "operators" (in a very large sense: judges,
advocates, personnel, public prosecutors, citizens who pay the inefficiency of the
system…), it is taking place the idea that a good organization can do best than much
law reforms. It is a very late consciousness, but better today than never… It could
become a source of pressure towards the decision-makers to choose the right goals.
The expenses for the bureaux is remarkable and so another important goal is to rationalize
the distribution of the judicial bureaux on the national territory, according to the need
of the population, to an adequate charge of trials (and files to manage) and a reasonable
cost to sustain.
Judicial bureaux distribution
(from the web site www.giustizia.it)
5. PERSONNEL
This short analysis is mostly about the employees of the area of the judicial offices and
the department of the organization of the judiciary - leaving out the penitentiary and the
juvenile system personnel, which have several peculiarities -.
In the peripheral offices, the administrative personnel carries out - under the direction
both of the Chief of Office (judge) and the Administrative Manager - tasks to support:
1. the judicial activities of the courts:
- filing the documents;
- assisting the hearings;
- publication of the sentences;
- enforcing the decision;
2. the administrative goals of the organizational units.
At the Ministry, the activities have the aim of serving the system in all its duties,
needs, provisions (personnel, budget, training, internal rules...).
Communication of the decisions and files from the centre to the peripheral branches and
offices is crucial.
Lack of information is one of the most frequent causes of inefficiency (and this happens
in all the organizations).
Law 321/1980 abolished all special career streams of civil servants and, since then, the
personnel of the Ministry of Justice is ranked at the same level as employees in public
administration.
That change caused considerable difficulties of interpretation, because some people
preferred the old regime.
At the present time, the personnel in the judicial administration amounts at 43.300
employees (approximately), ruled by the last Contratto Collettivo Nazionale di Lavoro -
Workers National General Contract - and the connected agreements, undersigned by the most
representative trade unions and which settled the different professional and economical
classes:
1. Cancelliere - Registrar of the court -
2. Personale esecutivo - less highly qualified employees -
3. Personale ausiliario - auxiliary personnel -.
The specialized groups of professionals are:
a. Esperti informatici - Information technology experts -
b. Contabili - Accountants -
c. Analisti di organizzazione - Organization analysts -
d. Formatori - Trainers of the Personnel -
e. Statistici - Statisticians -
f. Bibliotecari - Librarians-
g. Comunicatori - Experts in communication -.
6. DIRIGENTI - COURT MANAGERS
The management, in the whole public administration system, is ruled by the decreto
legislativo 29/1993 and his subsequent modifications - decreto legislativo 165/2001 - .
These regulations are well known as "privatisation laws", because introduced a
severe system of evaluation of the leading performances of the managers (not completely
realized). If they don't get the goals, they can lose the post.
Basically, there are two classes of managers:
- Direttori o dirigenti generali - first degree managers; at the top
units (departments, or equalized positions) of every Ministry and public organizations;
till a few years ago, in the Organizzazione Giudiziaria only magistrates could become
dirigenti generali; today, in that branch of the Ministry we have two dirigenti generali,
coming from the ordinary manager career;
- Dirigenti - second degree managers, possibly divided in other
sub-classes, according to responsabilities, risks, income.
Usually, the official appointment as a manager is reached competitively within an
examination conducted by a mixt commission; another way is to partecipate to the
selections for a course of studying at the Public Administration High School, lasting two
years and ending with public exams.
The manager is head of the administrative offices, in all the branches of Italian judicial
system.
Nevertheless, the title of managing director is actually set in the chief magistrates.
The law 300/1999, in reorganizing both the Presidency of the Council of the Ministries and
the Ministries, made possible that also administrative managers can get the highest
position in the Ministry of Justice.
Italian government decided to introduce in every ministry the SeCIn, Servizio di Controllo
Interno - Internal Auditing Service -, to promote the technical method of the Management
by Objectives (MBO), that requests serious evaluations of the achieved goals, every year,
at the end of the institutional activities.
The administrative manager of the judicial or ministerial bureaux should check the motives
of malfunctions of his organizational micro-system, to define the adequate objectives for
the future, remove criticisms and increase continuous improvement .
This process requests continuous and high level training of the management: Italian
Ministry of Justice began to organize courses for his dirigenti. That was good and must
never stop. Enduring training is an irremissible need.
What has been done cannot make forget what there is yet to do and in this specific matter
one can never stay still: the knowledge is in continuous evolution.
7. OTHER PROFESSIONAL CATEGORIES
Direttore di Cancelleria - Manager of the administrative office
(Position C3, a hierarchical classification) He manages the administrative sections of a
court or tribunal, in the functions not reserved to the Dirigente. He can be charged of
the deputy direction of an office.
He has the direction of special sectors in the biggest judicial offices and may manage
also plus sections simultaneously.
Cancellieri - Registrars of the courts
There are three positions:
C2 - chief registrar that manages single section or plus little sections.
C1 - registrar that works with his superiors in the area to which he is assigned.
These two positions have much in common and the different role depends on the dimension of
the office, on the number of employees, on the lack of personnel, so that sometimes there
is exchange and alternance of functions among those positions.
They both receive documents for the trial dossiers, check their formal correctness and
store them.
They authorize and supervise the personnel who work with them and ensure that
certification activities suit to the rules.
These cancellieri are responsible for the exchange of trial correspondence between the
parties, supervise the taxation about the acts to be paid.
Sometimes, they take part in commissions or commettees of some interest for the
Administration (test commissions; study groups, and so on).
B3 - court assistant: civil servant subject to direction.
Very requested role, mostly by the judges and public prosecutors: he is the employee with
the aim to assist them in the hearings, in the cross examinations of defendants and
witnesses and in the other trial activities, both in criminal and in civil proceedings. He
keeps records of the sittings and sign them.
He is appointed to a section and attends supervisory duties not exclusive of the higher
level; he can issue certificates and can take part in commissions as a secretary.
These three positions can (and must) act with the aid of ICT .
Operatori giudiziari (personale esecutivo) - Judicial operators
Positions B2 e B1: the other employees, less qualified, to do the simpler, even if
essential, job in the offices: computer operator, front office employees and so on.
Autisti, car drivers, are to be placed at this level, because they have position B1, even
if they a distinct classification.
Ausiliari - Auxiliaries
Positions "A": lobby employees, internal deliverymen, etc.
There is something to say about the specialized groups of professionals mentioned above:
In the hierarchical scale, they usually belong to the area C, which request the degree
(laurea).
Specially some of them represent a peculiar and essential resource to improve efficiency.
In general, in the old Italian public administration, the approach to organizational
problems was to fill offices with a lot of people (a quantitative solution).
At the present time, the vision is changing and there is a search in progress, to find out
the professionals who can bring inside the public services the proper skills to improve
efficiency (a qualitative method).
In the Italian Ministry of Justice this path has been taken up since a few years.
More specifically, trainers of the personnel, organization analysts and experts in
communication can make changes in the widespread bureaucratic vision; information
technology experts can bring the organization the advantages of the ICT instruments;
accountants and statisticians give scientific precision to the manage of the budget (and
in the evaluation of the judicial productivity) and develop a desirably propensity to
managerial control, auditing and cost accountancy.
In the Workers National General Contratc there is also the prevision of the
"organizational positions", employees who should assist the judges in collecting
legislation and jurisprudence, in researching documents both in the scholars and in the
courts, in preparing schemes of simple sentences. It should be a sort of "office of
the judge", supporting the decisions.
8. RECRUITMENT AND STATUS
In Italian Public Administration, according to the Constitution, recruitment in the civil
service positions is realized through state competitive examinations.
This is the rule also for the "internal career", even if in every public
examinations a certain percentage of posts is reserved to the internal employees and other
civil servants in general, who fulfil the requirements.
During the last years, accordingly to the more recent public Workers National General
Contracts, it has been given the opportunity to move upwards in the profession without
taking external exams, but only through training and a brief final interview
(riqualificazione).
In the Italian Ministry of Justice, the personnel is still waiting for the accomplishment
of this kind of career upgrading, because there have been a lot of difficulties and
lawsuits against the method which had been planned (too favourable to seniority, to the
detriment of the effective skills).
The requirements for the different roles described above:
Area C (cancellieri and professionals): one must hold a degree, in law, economics,
statistics, or comparable qualification.
Exam: written and oral tests, in many matters (cancellieri: constitutional and
administrative law; civil and criminal law and proceedings, commercial law, legal system,
court services and related taxation, court statistics; contabili: bookkeeping, economics,
statistics, etc.).
Area B : one needs a high school diploma.
Exam: two written tests and an oral one, in knowledge of court rules and organization.
The examination is more selective for the court assistant (B3), very simpler for the
position B1 and B2.
The salary (monthly approximate sums in €, income tax detracted):
Dirigente: there are 4 different salaries, accordingly to the importance of the office and
the level of responsibility it request: from 2.300 to 2.800;
Direttore C3:
1.550
Cancelliere C2: 1.400
Cancelliere C1: 1.300
Cancelliere - Court Assistant B3: 1.200
The liability of the officer:
Every officer is responsible in execution of his duties, in the various sides, civil,
criminal, disciplinary and towards the Court of Account.
It depends on the sort of the violated rules and duties.
The disciplinary system has a graduation, from the lightest sanction of the verbal
reproach, to the written caution, etc., till the dismissal upon or without notice.
As told before, Dirigenti, with the new regulations, can be sent to other charge and even
lose the post, if they repeatedly don't get their objectives.
The managers evaluation system is not completely effective: in the Italian Ministry a
special Commission studied a specific method, to value the results of the action of the
single dirigente, yearly. It is based on modern management criteria and it is still in a
monitoring phase.
In the meantime, the SECIN began to operate and is promoting the method of the Management
By Objectives.
Ordinary leave: civil servants benefit by 36 holidays. They can take them also in
different periods of the year, accordingly to the needs of the office they belong to.
On the opposite side, some officers, at the higher level (cancellieri, professionals) or
in special circumstances must be on call; for some kind of judicial services in the Public
Prosecutor Offices, also lower employees have to grant the pubblico ministero to intervene
in urgent cases after hours (discovery of corpses, urgent cross examinations, etc.).
Special leave for sickness and various motives.
Every civil servant is granted a short period of leave for various reasons: training,
bereavement, wedding.
In case of illness, his position is reserved for up to 18 months within a period of three
years (with gradually reduced payment).
For special personal reason, one can ask to leave for up to one year, without salary.
Law 1204/1984 about motherhood (recently extended in part to fatherhood) grants female
civil servants maternity-leave, during the two months prior to delivery and three months
thereafter, for childbirth and care. This leave can be extended during pregnancy, in case
of difficulties. Anyway the full salary is granted.
Either the mother or the father can take six months leave (total amount) during the first
year of child's life and, for the case of child's illness, they can leave as they need
during the first three year.
Trade union rights: these rights are recognized to all workers by Italian Constitution.
They concern working conditions (and the observance of the law 626/94 about safety of the
workers), trade union freedom, strike right for political and economical reasons, right to
negotiate agreement with the Ministry.
Rights relating to the industry workers have been extended to the civil servants: freedom
of opinions, assurance from illegal investigations or privacy violations, right of free
assembly.
As told before, Workers National General Contract and connected special agreements rule
the work relations inside the Ministry.
Termination of employment can be related to retirement, or to particular reasons or
attitude incompatible with the condition of public employee, or to serious and extended
illness that obliged to interrupt the relation, or to professional inadequacy or serious
carelessness up to the firing of the worker.
SOURCES
1) Rechtspfleger. Statute and duties. Comparative study, European Union
of Rechtspfleger (E.U.R.), Eigenverlag, 2001
2) www.giustizia.it, web site of the Italian Ministry of Justice
3) www.dirigentigiustizia.it, web site of the Associazione Nazionale
Dirigenti del Ministero della Giustizia
4) www.justice.rechtspfleger.org, web site of the European Union of
Rechtspfleger (E.U.R.)
5) www.coe.int, web site of the Council of Europe
6) www.europa.eu.int, web site of the European Commission
Daniela Intravaia
Dirigente C.I.S.I.A. Milano - Ministero della Giustizia
daniela.intravaia@giustizia.it
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