Administrative Justice in Italy

Italian law is based on Roman law, particularly its civil law, and on French Napoleonic law (itself based on the Roman model).

The codes of the Kingdom of Sardinia in civil and penal affairs were extended to the whole of Italy when Italy was unified in the mid-19th century. The revised 1990 penal code replaced the old ‘inquisitory’ system with an accusatory system similar to that of common-law countries.

Besides the codes, there are innumerable statutes that integrate the codes and regulate areas of law for which no codes exist, such as public law. Under the Italian constitution, the judiciary is independent of the legislature and the executive, and therefore jurisdictional functions can be performed only by magistrates and judges cannot be dismissed.

The Italian judicial system consists of a series of courts and a body of judges who are civil servants. The judicial system is unified, every court being part of the national network.

The highest court is the Supreme Court of Appeal, which has appellate jurisdiction and gives judgements only on points of law. The 1948 constitution prohibits special courts with the exception of administrative courts and military court-martials, although a vast network of tax courts has survived from an earlier period.

The Italian legal system is inordinately complicated and most lawyers ( avvocato) and judges ( giudici) are baffled by the conflicts between different laws, many dating back centuries, and EU directives serve to complicate matters further.

There are literally thousands of laws, most of which are ignored, and newcomers must learn where to draw the line between laws that are enforced and those that aren’t or are only weakly enforced. It sometimes appears that there’s one law for foreigners and another for Italians, and fines ( multe) are commonplace.

The legal system grinds very slowly and it takes years for a case to come to court; the average time between indictment and a court judgement is ten years, and eight out of ten convictions involving prison terms never take effect. This means that you should do everything possible to avoid going to court, by taking every conceivable precaution when doing business in Italy, i.e. obtaining expert legal advice in advance.

If things go wrong, it can take years to achieve satisfaction and in the case of fraud the chances are that those responsible will have gone broke, disappeared or even died by the time the case is decided.

Even when you have a cast-iron case there’s no guarantee of winning and it may be better to write off a loss as ‘experience’. Local courts, judges and lawyers frequently abuse the system to their own ends and almost anyone with enough money or expertise can use the law to their own advantage.[1]

Appello (appeal): for almost all courts in Italy (except very minor cases), it is possible to appeal the ruling, both for disagreement on how the court appreciated the facts or on disagreements with how the court interpreted the law.

Avvocatura dello Stato: the public organ, composed of lawyers, which represents the State, whenever it is plaintiff or defendant in a lawsuit.

Cassazione: the Court of Cassazione acts as cassation jurisdictions, which means that it has supreme jurisdiction on quashing the judgments of inferior courts if those courts misapplied law. Generally, cassation is based not on outright violations of law, but on diverging interpretations of law between the courts. Cassation is not based on the facts of the case. Cassation is always open as a final recourse.

Codice ("law code"): collection of enacted statutory law or regulations relating to a single topic. Modern Italian law codes date back to the 19th century (Pisanelli Code, the first civil code of the Kingdom of Italy and Zanardelli Code, the first penal code), though all codes have since been abolished and substituted.

Contraddittorio (due process)

Contravvenzione ("misdemeanor, summary offence"): lowest kind of crimes punishable by fines or at most short jail sentences.

Delitto (felony): more severe crimes, punishable by fines, prison sentences or life imprisonment.

Giudice monocratrico (solo judge).

Giudice collegiale (panel of judges): it is important to note that, in this case, Giudice (Judge) refers both to every single person composing the panel and to the panel itself.

Giurisprudenza (jurisprudence). While Italian judges, in keeping with the civil law tradition, do not create law, and thus there is no case law properly said, the decisions of the higher courts are of great importance and may establish long-lasting doctrine. While there is no stare decisis rule forcing lower courts to decide according to precedent, they tend to do so in practice, because, should they not do that, the higher court might quash their judgements, in keeping with its jurisprudence.

Inamovibilità  (security of tenure): Judges cannot be removed from office, except through specific disciplinary proceedings (conducted by the Consiglio Superiore della Magistratura, an independent tribunal), for infringements on their duties. They may be moved or promoted only with their own will. These protections are meant to ensure that they are independent from the executive power.

Magistrato (judicial officer): general term encompassing Judges (Giudici) and prosecutors (Pubblici Ministeri); the Magistratura, or judiciary, is a collective term for all judicial officers. Magistrati are government employees, but statutorily kept separate and independent from the other branches of government. Magistrati are expected to maintain a certain degree of distance (as is the case with all government employees); that is, they must refrain from actions and statements that could hinder their impartiality or make it appear that their impartiality is compromised, e.g., refrain from making public political statements.

Magistratura amministrativa (administrative courts, administrative stream): courts of this order judge most cases against the government.

Magistratura ordinaria (judicial courts, judicial stream, literally ordinary judiciary): courts of this order judge civil and criminal cases.

Procura della Repubblica: the Ufficio del Pubblico Ministero attached to the Courts of first instance; it is headed by a Procuratore della Repubblica and composed by many Procuratori Aggiunti, Sostituti Procuratori and Vice Procuratori.

Procura Generale della Repubblica: the Ufficio del Pubblico Ministero attached to the Corte d'Appello; it is headed by a Procuratore Generale della Repubblica.

Presidente di Sezione (presiding justice): chief Judge of a division of a court.

Presidente di Tribunale or Presidente di Corte d'Appello or Primo Presidente della Corte di Cassazione: the Chief Justice of a given Court.

Pubblicità. All civil, administrative and criminal justice, as well as all financial cases where individuals may be fined, end up with audiences open to the public. There are narrow exceptions to this requirement: cases involving national security secrets, as well as cases of rape and other sexual attacks, may be closed or partially closed to the public, respectively in order to protect the secret or in order not to add to the pain of the victim. Cases with minor defendants (or rather, defendants that were minor at the time of the crime) are not open to the public and the names of the defendants are not made public, so that they are not stigmatized for life.

Pubblico Ministero (public prosecutor): this office can be translated into prosecutor but the functions of a Pubblico Ministero also include the general monitoring of the activity of the court in both criminal and civil cases (say, to see if Judges apply the law in a consistent manner).

Sentenza (Judgement): it is composed of two parts; the first, the parte motiva contains the written explanation by the Judge of how and why he decided in that particular way; the other, the dispositivo, contains the Judge's orders to the parties.

Sezione ("division"): subdivisions of a large court of general jurisdiction.

Sezione specializzata (specialized division): a sezione, which is specialized on a specific area of law.

Ufficio del Pubblico Ministero, (Office of the Prosecutor): responsible for the prosecution of cases. It requests enquiries to be made; during court hearings, it brings out accusations against the suspect. In addition, it has a role of general monitoring of courts.

Tribunale: generally refers to a court of record of first instance having original jurisdiction and whose judgments are appealable; it is the only Court that can be either monocratica or collegiale, that it is to say that it can be composed of one or three Judges, according to the case it is dealing with.[2]

The status of this branch of the judiciary is determined by the free set of laws of the State Council (Law of 1924) and the Establishment Act of regional administrative tribunals in 1974 an indication of the regional administrative courts is contained in Part 2 of Art. 125 of the Constitution. High Court of Administrative Justice is The Council of State.

This function is performed by three of its offices with judicial powers. 
The general meeting of the Council may formulate legal principles to the activities of administrative tribunals.

Administrative jurisdiction: exercised by the Tribunali Amministrativi Regionali – TAR (Regional

Administrative Courts), whose decisions may be appealed before the Consiglio di Stato (Council of State).[3]

Administrative courts have two functions: the protection of legitimate interests ( interessi legittimi), i.e. the protection of individual interests directly connected with public interests, and the supervision and control of public funds. Administrative courts are provided by the judicial sections of the council of state, the oldest juridical-administrative advisory organ of government.

The court of accounts has both an administrative and a judicial function, the latter primarily involving fiscal affairs. The losing party has the option of requesting a review of the entire case by the council of state ( consiglio di stato) in Rome, whose judgement is final.[1]

Administrative Court of First Instance is the district administrative tribunal. Although the creation of regional bodies of administrative justice was initially envisaged by the Constitution, their legal status was defined only in 1974, and at the end of that year they began to function. The regional administrative tribunals sit in sections, and decisions are made by panels of three judges. Jurisdiction of the courts does not extend beyond the area in which they are located. Typically, in each region there are one or two administrative tribunal (the country is divided into 20 regions). Conflicts between regions are solved by the tribunal of Lazio. Appeals on the decisions of these tribunals are sent to the Council of State (in practice about 15% of contested decisions of regional administrative tribunals). Special status in the field of administrative justice enjoys Sicily: administrative court of second instance is the Council for Administrative Justice Sicilian Region established here in 1948.

Reform of local administration of justice was foreshadowed at the time of drafting the Constitution in connection with the adoption of a new regional structure of the State (1947). The interest of the legislator on this issue is seen in the art. 125 of the Draft Constitution: the control of the legality of administrative acts is carried out in a decentralized agency of the state in the form prescribed by laws of procedure and limits. In certain cases the law may allow the control, in fact, with the one purpose - to cause, by a reasoned request reconsideration of the decision by the Council of the district. In accordance with the law of the Republic, administrative courts of first instance are established. Offices can be formed outside the main city of the district area. "

In the long term establishment of these institutions can personalize the two phases that characterize the diverse work of lawyers and politicians, aimed at realization of the constitutional principles of life. In the first phase, which includes the entire period of the 1950s, almost everywhere there is a tendency and spread beliefs that  in the doctrinal sense criticized the system of provincial administrative Giunta (councils), showing (a hard argument rebuttable) low efficiency of the system and the lack of real independence of its components . There was the idea of ​​creating regional administrative tribunals in order to overcome an archaic unit of local administrative court and argued that such a reform could and should be done independently of the creation of regional bodies. During these years a series of projects was published (mostly coming from the government), which, however, were never approved by parliament.

In the 1960s, it seemed, even criticism was exhausted. Interest in reform of administrative justice weakened due to the futility of efforts to amend it in any "nongovermental" inclusions.

Despite the fact that the legislator was deaf to the voices of lawyers, the signal was received by the Constitutional Court, which through a series of solutions destroyed the foundation of the peripheral administration of justice:  this reorientation of the Constitutional Court began with the decision № 93/1965, declaring the unconstitutionality of municipal and provincial councils as bodies to consider disputes relating to the electoral law. The next stages are: a) the decision № 55/1966 (the illegal composition of the councils of prefecture), and b) the decision № 30/1967, relating to the provincial administrative Giunta, etc.

Then the second and final phase prior to the reform begins the problems of which were solved with unprecedented before scope and activity.

Attention was focused on two projects - one proposed by the Government, the other – by the Parliament, both of them gathered in a consolidated text were approved by the Chamber of Deputies. Procedure for approval of the project in other branches of Parliament met with some difficulties, merging with the discussions on other projects and amendments that led to the adoption of the amended text of the Senate at a meeting of November 18, 1971. The text in the full version passed the House of Deputies on December 6, 1974 was law providing the establishment of TAR.

Thus, on the one hand, a gap in the administration of justice at the local level was completely filled, on the other hand, it was realized a double degree of jurisdiction, the appellate court was introduced, through which the Council of State opposed the decisions of TAR in the first instance.

The law has improved the earlier procedural system, has created an alternative claim of jurisdictional to claim hierarchical, but overall it was merely a technical improvement, unrelated to the nature and object of the administrative process, which according to the prevailing doctrine remained unchanged. In the address of the reform was voiced numerous criticisms. According to many authors, the reform has not led to a global restructuring of the administrative process, which is expected to practice. The nature of the administrative process of the first instance seemed to be copied from the traditional structure of the usual administrative court, which occurred in one instance.

Considering the administrative justice system and administrative process, it must be emphasized that the term "administrative justice" has a complex nature and involves heterogeneous remedies, only some of which are jurisdictional in nature. This explains why the set of instruments to protect against acts of public administration prefer to call "administrative justice" instead of "administrative process", leaving only the last set of responses of a jurisdictional nature. But the system is designed so that even considering only the administrative process, i.e. that particular segment, which includes only the jurisdictional means, you will notice that they are not uniform. This is due to the need to distinguish three specific functions: a) the jurisdiction of the cancellation, and b) special (exclusive) jurisdiction c) jurisdiction on the merits.

The most important and extensive sector a jurisdiction is invalidation the legal consequences of an administrative act or transaction that is not relevant legal norm. In this sector there are administrative and jurisdictional ways of protection  . Some refer to it as administrativisty jurisdiction of legitimacy. But this term limits the content, since the use of administrative remedies allows proceedings, which may go beyond the simple legitimacy, then there is agreement or disagreement of the law an individual administrative act, and also applies to the merits of the case - that is, assessment its compliance with the public interest. Traditionally, the textbooks explained that the jurisdiction to cancel the complex includes a response in the possession of private individuals against administrative acts that violate the legitimate interests of citizens.

We return to the administrative process. Parties in litigation are the plaintiff, i.e., entity (natural or legal person under public law), arguing the violation of his legal interest, as well as in exceptional cases provided by law, violation of subjective rights (special administrative jurisdiction), and, on the other hand - the state (public) administration. Recall that the first point of administrative justice are the TAR, the second - the State Council and the Council for Administrative Justice. Protection of subjective rights and legitimate interests can also be produced in special organs and Administrative Justice (the Chamber, the Regional Tribunal for public water and Tax Commission).

Regional Administrative Tribunals are in the main city area and in areas of Lombardy, Emilia Romagna, Lazio, Abruzzo, Campania, Puglia, Calabria and Sicily were created separate sections RAT. Tribunals have jurisdiction over cases:

1) set out earlier in the competence of the Provincial Administrative Giunta of respective judicial district;

2) disputes over jurisdiction, abuse of authority and violation of the law in respect of administrative acts that are created by : a) peripheral state agencies and public institutions of region-wide scale, and b) the territorial government acting in a judicial district TAR; c) territorial (local) government agencies, set forth in this judicial district.

In addition, the RAT were transferred to disputes over jurisdiction, abuse of authority and violation of the law in respect of acts issued by central government agencies, and the consequences of action are geographically limited scope of this judicial district.

RAT also has jurisdiction over cases concerning the election campaign and the work of electoral commissions for election to the Municipal council, provincial and regional councils, as well as citizens' complaints against administrative acts regulating the right of access (reference) to administrative documents. In the exercise of jurisdiction to annul ("the legitimacy of law"), the judge must determine whether the challenged act was published in compliance with the principles of jurisdiction, if there was any abuse of power and violations of the provisions of the law of the state administration, which issued a legal act. If the judge admits the claim invalid, then explains it by a court decision (Maxim), if it finds the claim unfounded - rejects it, processing it as the imposition of maxims, but if taking action based on breach of competence, it cancels itself a legal act and sends the case to the authorities of the jurisdiction. If the judge grants the claim on other grounds, that cancels all or part of the act of state administration (Art. 26, first paragraph of the law of 6 December 1971, № 1034).

We must bear in mind that a complaint may be submitted also to the omission in the work of administrative bodies (e.g., when the administration does not read (not promulgate) in a timely filed petition for a decision or a statement - the "silent refusal", or does not take an act which would have to accept, despite the formal retention). A special court jurisdiction on the merits of the case allows the judge to assess in addition to the legality of administrative acts as its timeliness and administrative feasibility, ie, use of discretionary power by the state administration. This type of jurisdiction shall be permitted only in cases prescribed by law, in particular Art. 27 of the Decree of June 26, 1924, № 1054 (for example, disputes, conflicts between the provinces and municipalities, the debate about the classification of provincial and municipal roads) and Art. A decree of June 26, 1924, № 1058 (for example, disputes relating to the work of consortia involved in hydraulic works in the field of public water use complaints to the legal acts issued sindako (Mayor), concerning the sanitary condition of the settlement). When these judicial functions as a judge may cancel a legal act, and transform (improve) his or replaced, as well as to force the administration to pay amounts outstanding become apparent (Article 26 of the Law № 1034/1971).