N 192/2007. Estensore: - FILIPPI Roma, 30/04/2007

Transcription

1 Consiglio Superiore della Magistratura Ufficio Studi e Documentazione N.fascicolo: V N 192/2007 Estensore: - FILIPPI Roma, 30/04/2007 Richiesta di predisposizione di risposta alla nota a firma Lusine Abgaryan del dipartimento cooperazioni internazionali della Corte di Cassazione della Repubblica dell Armenia, pervenuta via , diretta ad ottenere informazioni riguardo il sistema disciplinare italiano con specifico riferimento alle decisioni della Corte europea dei diritti dell uomo. I.- Il quesito. Con nota a firma Lusine Abgaryan del dipartimento cooperazioni internazionali della Corte di Cassazione della Repubblica dell Armenia, pervenuta via , è

2 pervenuta richiesta diretta ad avere informazioni riguardo il sistema disciplinare italiano con specifico riferimento alle decisioni della Corte europea dei diritti dell uomo. II.- Osservazioni dell Ufficio Studi. segue: Alla richiesta di informazioni inviata per via telematica può rispondersi quanto 1. Any judge, of course, could be held responsible of civil, criminal, accounting misdeeds and obviously for disciplinary misdeeds. No particular problems could be connected with criminal liability, so that the members of judiciary could be investigated and can be tried in case they were suspected guilty of crime like every other citizen. Obviously no problems arise in civil responsibility for misdeeds that are not involving judiciary function. For civil misdeeds those that are depending on judiciary function can be declared responsible of civil injuries only in cases of heavy guilt. Civil liability is the liability that a judge/prosecutor undertakes vis-à-vis the parties to the proceedings or other entities, and which results from any mistake or non-compliance affected in the exercise of his/her functions. The civil liability of judges and prosecutors, which is similar to that of any other public servant, is based on Article 28 of the Italian Constitution. After the outcome of a recent referendum leading to the repeal of some earlier rules that severely limited the cases of civil liability, the issue is now regulated by Law no. 117 of 13 th April Disciplinary liability is the result of a breach of the functional duties that a judge/prosecutor undertakes vis-à-vis the State at the time of his/her appointment. The judge could be tried for disciplinary misdeeds. (the normative grounds of disciplinary proceedings against the members are a Royal Legislative Decree no. 511 of 31st May 1946, the Constitution, and the recent law n. 109/06). Disciplinary liability is the result of a break of the functional duties a judge/prosecutor undertakes vis-à-vis the State at the time of his/her appointment.

3 The art. 1 of the low n. 109/06 fix establishes that: the member of judiciary have to exercise his/her function with impartiality, diligently, industriously, with discretion (reserve), with moderation an balance, respect of dignity of the person in exercise of his/her function. The member of Judiciary even out of the exercise of his/her function, have not to take a conduct that could compromise the personal credibility, the prestige and honour of the member of judiciary institution!. 3. Until recently, before the law that was promulgated last years, the disciplinary action was optional. On the contrary, in the current system the action is compulsory. The obligation to exercise the disciplinary action is attenuated (lessened) by the role (Art. 3 bis fix that the prosecutor could decide not to proceed disciplinarily when the fact is slight. Before the new law I mentioned before, the disciplinary misdeeds was atypical whereas now the member of the judiciary could be disciplinary persecuted only for typical misdeeds. The typical misdeeds have to be distinguished in disciplinary misdeeds committed in the exercise of the functions, and disciplinary misdeeds that are committed outside of the exercise of the functions. The disciplinary misdeeds committed during the exercise of the functions are twenty-nine (art. 2): They can consist in: a) Giving advantage or disadvantage to one of the part of the trial with a violation of the duties of his/her office; b) Omitting to communicate to the Council his/her incompatibility (the potential incompatibilities with any relative or spouse are written explicitly in the law); c) Failing to consciously observe the duty to abstain from trial when it is explicitly required by the law; d) the habitually and heavy unfair behaviour with the parts, with their defender, the witness, the persons in the office and any other member of judiciary and assistants; e) Unjustified interference in the activity of another member of judiciary;

4 f) Omitting to communicate to the Chief of the Office about the interferences of another member of the judiciary; g) heavily violating the law for ignorance or not excusable negligence; h) misunderstanding the facts for not excusable negligence; i) persecuting different finality not regarding his/her duties or his/her judiciary function l) Omitting to motivate the acts or motivating the only mentioned by the law when the motivation is request by the law; m) Adopting for heavy not excusable negligence an act that is not legally that injured in relevant way patrimonial interests of the part involved in the trial; n) the habitual and heavy violation of organization of the Office; o) Giving his/her own attributions to other person; p) The inobservance of the obligation to reside in the same town of the Office when there is not any authorization if this inobservance causes damages to the duties of diligences and functionality; q) heavy and unjustified delay in doing acts of the Office (unless contrary evidence it is not considered heavy delay a delay of less then three times the normal time required to complete an act); r) the repeated and unjustified habit of avoiding his/her job s) only for the Chiefs, avoiding to make the assignation of the affair of the other judges in the office and failing to do any act; t) The inobservance of the obligation to be traceable u) The divulgation of news v) The divulgation of secret acts z) To have relations with journalists about something of concern of the activity outside the cases in which such a relationship is possible according to the law aa) To press for publication of news bb) To make declarations in violation to his/her duties cc) To adopt international acts in which the decision is not the logic consequence of the motivation dd) For the Chief of the Office the omission to give information about the disciplinary misdeeds of judges of the Office;

5 ee) For the Chief of the Office the omission to give information about the existence of incompatibilities involving judges of the Office; ff) For the Chief of the Office the omission to give information about the existence disciplinary misdeeds of judges of the Office gg) the adoption of acts without trail and out of it or in ground of macroscopic error or heavy and inexcusable negligence. hh) the adoption of acts concerning the freedom of persons out of the Law for heavy or inexcusable negligence. In any case the interpretation of the Law out of the mentioned cases can be considered a disciplinary misdeed. Disciplinary misdeeds outside of the exercise of the functions are five. They consist of (art. 3): a. The use of the capacity of member of judiciary in order to obtain unjustified advantages for himself/herself or for other persons; b. The frequentation with a person involved in criminal trial c. To do activities that are not authorised by the Council d. To do activities that are not compatible with the judiciary function e. The obtain directly or indirectly financing or similar advantages from person involved in civil or penal trial in his/her judiciary Office or in the court in which is situated his/her Office or his/her defender ; the public manifestation of his/her assense or dissents about a trial when this manifestation can condition the exercise of his/her function The participation to a secret association with roles that are not compatible with judiciary functions the subscription or participation to a political party or activities in financial powers that can condition the exercise of function the instrumental use of the capacity of member of judiciary when this can make a perturbation of constitutional function Any other behaviour that can compromise independence and impartiality of a member of judiciary even if only in its appearance Disciplinary misdeeds for crime are: a. The fact for which there was definitive penal sentence of condemn for an intentional crime

6 b. The fact for which there was definitive penal sentence of condemn for guilty crime, if this is particular heavy The fact for which there was not a definitive penal sentence of condemn because the crime was for any reason extinguished or the action was not exercised when the fact could produce a damage to the image of the member of judiciary. 4. Judges or prosecutors cannot be accused only for decision of ECHR so if the European Court of Human Rights have overruled the decision of an Italian judges the disciplinary process cannot start against him /her only for that, but it is always necessary the evidence of a breach of the functional duties like one of the disciplinary misdeeds fixed by low. L UFFICIO STUDI DEL C.S.M. Dott.ssa Paola Filippi estensore