A. Marini
Italian Constitutional Justice

1. The Constitutional Court is placed in a position of absolute importance within the institutional framework outlined by the Italian Constitution, insofar as especially incisive powers are attributed to it, such as the control of constitutionality of the laws, with the possibility of annulling those laws held to be in contrast with the Constitution, as well as the resolution of the conflict between the powers of the State and between the State and the Regions.

This position is safeguarded by special guarantees both of the Court, as a body, and also of the judges, as members of the latter.

From the first point of view, (the guarantee of the independence of the Court) the varying backgrounds from which the judges come should be emphasized together with the methods used to compose the Court as a corporate body, and to elect its President. In the same way, autonomy of regulation and of accounting, as well as domestic jurisdiction play their part.

From the second point of view (the guarantee of the independence of the judges) the evaluation of the subjective qualifications of the judges, the institution of unappealable decision, the system of incompatibility, the discipline of removal, suspension and forfeiture and that of authorization to proceed with reference to criminal proceedings stand out in importance.

2. The composition of the Court reflects its shape as a jurisdictional body even though it is of a very special kind.

It may be recollected in this regard that during the proceedings of the Constituent Assembly (1946-47) there were two main contrasting opinions.

There were the supporters of the thesis of a nomination coming exclusively from Parliament or in any case from the elective assemblies, including the regional ones; this thesis moved from the assumption that in the judgement of constitutionality of the laws the Constitutional Court would exercise a public function so that its composition could only derive directly from Parliament and therefore be in accordance with the principle of popular will. Seen from this point of view, there were even proposals that the length of the nomination of the judges should be connected to the term of office of the Parliament.

In contrast to this proposal was the second, according to which it was necessary to bear in mind that the function of the Court would be of essentially jurisdictional character. The Constitutional Court – was the observation – must not be political since it must judge, pronounce on the law, in other words to see that the norm of the ordinary law corresponds to the norm of constitutional character.

The debate between the two theses was resolved in favour of a mixed solution which reached a mean between the fundamental character of jurisdiction of the activity of the Court and the need for political-institutional sensitivity inherent in the balancing of the values subtended to the constitutional norms, which the Court is often called on use.

3. The requirement of a specifically technical-juridical capacity in order to be a constitutional judge precisely corresponds to the need for a bona fide, impartial judge, by means of fixing certain determined subjective qualifications. Since the Court is not set up as a centre of arbitators for the composition of interests of the community of associates(or of political, as understood in the broad sense, interests), a representative investiture is not enough, but, precisely in order that the judge may from his own conviction above all on the basis of canons of hermeneutics and of legal logic, he must be a particular authority on legal matters. Indeed article 135 of the Constitution states that the judges of the Constitutional Court should be chosen from: a) judges (even if retired) of higher, ordinary and administrative jurisdictions b) full university professors of law c)advocates with a minimum of twenty years’ standing.

The need to guarantee the independence of the body is also reflected in the norm according to which the assessment of the above qualifications is reserved for the Constitutional Court itself which decides its members by absolute majority.

4. Constitutional jurisdiction is however absolutely particulur, since – as has been said – it often implies the balancing of constitutionally protected values and therefore requires, over and above technical-juridical expertise, a special political-institutional sensitivity.

This is essentially mirrored by the mixed composition of the Court which is provided for by the same article 135 of the Constitution. The judges of the Constitutional Court - fifteen in number - are in port nominated and in part elected: five judges are nominated by the President of the Republic; other five judges are elected by the Parliament in a joint sitting of the two Chambers; the remaining five are elected by the high, ordinary and administrative magistracies.

The nomination and election then present some particular features, the purpose of which is to create a constitutional body placed in a position of marked independence.

a) The nomination by the President of the Republic can be an autonomous presidential act, in the sense that it departs from the rule of ministerial proposal which in this case is missing. Therefore there is not, as is the rule, the proposal of a Minister who assumes the responsibility of the presidential act, as it is a question of an act coming directly from the President of the Republic.

b) The election of the judges by Parliament is also characterised by different profiles: the Chamber of Deputies and the Senate meet in a joint sitting (as in the case of the election of the President of the Republic); the voting is carried out secretly; the majority is qualified (two thirds of the members of the assembly for the first two ballots; three fifths of the latter from the third ballot on). This guarantee of a qualified majority is not actually provided for by the Constitution, but was first introduced by an ordinary law (art. 3 of law no. 87 of 1953), which establishes a majority of three fifths of the voters after the third ballot. At present, then, an ordinary majority is not enough for the election of the constitutional judges, but instead requires a wider consensus than that sufficient for common parliamentary resolutions. It is consequently possible and actually happens that there are further ballots until a wider consensus is reached.

c) the election of the judges by the high, ordinary and administrative magistracies is carried out by a board restricted to judges coming respectively from the Court of Cassation, the Council of State and from the State’s Auditors’ Department (as well as magistrates from the Public Prosecutors Offices of the two Courts). An absolute majority is required of members of the electoral board and in the case of a second vote, a ballot between those who gained the greatest number of votes is foreseen, in order that the elections always finish after two votes.

5. In order to guarantee the independence of the judges and of the Court there is in addition the rule of a term of office for the judges, although not for life as in other orders (such as the American one), which is particularly long (nine years), even longer than the term of office of the President of the Republic (seven years) or of the ordinary length of the Parliament.

As the posts of the judges fall vacant, the composition of the Court changes gradually, either because the posts fall vacant at the end of the nine years period, or for other reasons. This guarantees a gradual, never sudden change in the composition of the Court.

The judges can never be re-elected or re-nominated. At the end of the nine-year tenure they leave their posts and stop working. Therefore there is no extension of powers. Any eventual delay in the nomination or election of the judges-which in practice has sometimes happened regarding the election of the judges by Parliament because of the difficulty of reaching the prescribed qualified majority-does not prevent the functioning of the Court which is guaranteed by the rule according to which it can in any case work with at least eleven judges, so that there is always a judge for each of the possible provenances (Presidential nomination, parliamentary election, election by the Supreme Magistracy). In other words there is no actual practical risk that the Court can be paralysed because of a possible inertia on the part of the body appointed to nominate or to elect the substitute. Initially the rules of the Court established that the judge should remain in office until the date on which the judge called to substitute him was sworn-in; but art. 135 of the Constitution, as substituted by a constitutional law in 1967, excluded this extension and successively the Court received this measure modifying its rules.

6. It is the same Constitution (in art. 135) which imposes a rigid rule of incompatibility on the judges. The position of judge of the Court is incompatible with that of Member of Parliament, of Regional Council, with the exercise of the profession of lawyer and of every appointment or office indicated by the law. Moreover, the judges cannot be candidates in political or administrative elections, nor carry out activities concerning associations or political parties. Nor can they take on or keep other offices or private or public positions, nor exercise professional, commercial or industrial activities. Judges and university professors elected constitutional judges are placed off the list of permanent staff and cannot continue to exercise their functions for the whole period of their appointment. It is therefore a question of limitations which are still more rigorous than the ones provided for the judges belonging to the legal order and which aim at creating a sort of curtain of protection from any possible external interference.

7. In the framework of the guarantees of independence one finds in criminal affairs a peculiarity of the Italian order as compared to those of other countries (Germany, Spain), insofar as the judges of the Constitutional Court have a similar immunity applied to them by the Constitution as is applied to the Members of Parliament. This is again a guarantee justified by the need to preserve the sphere of independence of the Court, even if in practice there have not been any occasions when it has operated. It is expressly provided for by a norm of constitutional law (art. 5 law no. 1 of 1953) that the judges of the Constitutional Court are not censurable, nor can they be persecuted for opinions expressed or votes given in the exercise of their functions. Moreover, in general, as long as their appointments last, they are awarded application of the immunity accorded by the Constitution to Deputies and Senators by art. 68, paragraph 2, of the Constitution, namely that where they are subjected to criminal procedure, authorization to proceed given by the same Court is prescribed.

It is useful to remember that in its original formulation the above mentioned norm of the Constitution, laid down for Members of Parliament (namely the one quoted in its preceptive content to fix a similar immunity for the judges of the Constitutional Court), in general prescribes the need for authorization to proceed in order to be subjected to criminal procedure. Recently (1993) this immunity was modified in a reductive sense for Members of Parliament: the unquestionable nature of the opinions expressed and the votes given in the exercise of their functions, the necessity of authorisation to proceed by the Chamber to which they belong is limited for Members of Parliament to subjection to temporary measures which liberty. It was consequently modified for Members of Parliament, but not for the judges of the Constitutional Court for whom the disposition of the penal code which disciplines the authorization to proceed remains unchanged.

8. It is still only the Court which can order the removal or the suspension of the single judge for unforeseen physical or civil incapacity or for serious deficiencies in the exercise of his function (one hypothesis for the forfeiture of office is that of failing to exercise one’s duties for six months). In this case the resolution of the Court is taken by a majority of two thirds of its members which participate in the assembly. There is in this way a double guarantee: on the one hand, it is the Court itself which takes a decision regarding the continuance of tenure of the judges; on the other hand, the same resolution of the Court is taken with a qualified majority.

9. Differently from some Constitutional Courts, which see their Presidents nominated by other constitutional bodies (for example, in France the Conseil constitutional), it is the same Court which elects its President in its bosom by secret ballot and by absolute majority of its members in the first two voyes; in the third vote a ballot is proceeded to. He has tenure of office for three years and can be reelected; an event which up now has in practice seldom happened as the criterion of seniority of the nomination to the position of judge is almost always followed in the nominations (for President).

The powers of the President are various and influential, but do not distort the nature of the markedly collective character of the Court.

The President summons the Court and presides over its assembly; the Court however when pronouncing its sentences and ordinances always decides as a corporate body by absolute majority of its voters (namely of the judges which compose the board, since abstention is inadmissible) and only in case of an equal vote the vote of the President of the board (who normally-but not necessarily- is the President of the Court, who in case of impediment can be substituted by the Vice- President or of the most senior judge).

However every decision is referred to the Court as a whole, since dissenting opinion is not provided for. According to some-but this opinion is not shared by all and this is a controversial and much-debated on the lack of a manifestation of the reasons which in the collective body have led to the formation of a majority or of a minority further guarantees the independence of the Court and strengthens its corporate nature.

The President secondly exercises police powers which in the context of the headquarters of the Court are reserved for the Court itself. In particular the Public Police Force cannot enter the headquarters of the Constitutional Court unless it has been specifically ordered to by the President.

We should then recall that contempt of the Constitutional Court constitutes a crime(art. 290 of the criminal code) and where the matter is committed within the headquarters of the Court, the President can order the arrest of the author of the crime and his delivery to the judicial authorities.

10. A further very significant expression of the independence of the Court is the recognition, on an equal level with other constitutional bodies (but differently from the bodies of ordinary jurisdiction), of it regulatory power of jurisdiction which concerns not only its organization, but also the rules of procedure regarding itself. The rules of the Court are approved by the majority of its members and are published in the Official Gazzette of the Republic. Among these stands out the Set of Rules concerning the supplementary rules for the judges within the Court itself. This ruling power is actually provided for by an ordinary law, while the ruling power of the Chambers is provided for by the Constitution. It has no less in practice guaranteed and guarantees ample independence of the Court so much so that when(in exceptional cases) the legislator is called upon to intervene to modify a ruling norm (such as on the extension of the term of office of the judges whose term has expired, which we have spoken of above) this was carried out by constitutional law and not by ordinary one.

It is then a ruling norm which states that the judges of the Court, in their decisions before the same Court; cannot be challenged,nor can they abstain.

In a parallel fashion to its regulatory autonomy, the Court enjoys an autonomy of administration and of accounts. It has at its disposition a fund which is established by law, based on its autonomous budget and not subject to controls generally used for public spending.

In the same way the regulatory power of the Court allows it to discipline work relations with its own employees in an autonomous manner and in this regard the Court has a domestic jurisdiction, since it has the authority to judge any possible appeals by its own employees according to rules of procedure which are in their turn set up by an internal set of rules.