Italian Legal System: How Courts and Judges Are Organized

Justice administered in the name of the people

Article 101 of the Constitution opens the title dedicated to the judiciary this way: justice is administered in the name of the people, and judges are subject only to the law. Two short lines, but they carry the rest of the system: no judge answers to a boss, a party, or another branch of the state when deciding a case. The only constraint is the law itself.

This framework is tied to the rules of the Italian Constitution: the legal system isn’t a self-contained body of rules, but flows directly from the principles the 1948 Charter sets out, which define who can judge, under what guarantees, and within what limits.

Two paths in the Constitution: ordinary and special

Article 102 establishes that judicial power is exercised by ordinary magistrates, appointed and regulated under the rules on the judicial system, and it bars the creation of new extraordinary or special courts. Only specialized sections within ordinary judicial bodies are allowed, and even those may include citizens who are not magistrates.

Article 103, however, sets three exceptions directly in the Constitution, which sit outside the ordinary judiciary:

Every “rule” that governs these bodies is, in a sense, a legal norm: a general and abstract rule, backed by the state, different from good manners or social customs precisely because breaking it carries consequences set by law.

The three levels of judgment

The Italian Ministry of Justice’s glossary describes the Italian system as built on the principle of the “double level of judgment,” structured into three levels: a first-instance trial, a second-instance (or appeal) trial, and a legitimacy ruling, which takes place before the Court of Cassation.

Practical example: a civil case begins before a trial court (first instance). Whoever loses can appeal the ruling before a court of appeal (second instance), which re-examines the facts and evidence again. If the appeal still doesn’t settle the matter, one path remains: an appeal to the Court of Cassation, which does not, however, revisit facts already established. It checks only whether the law was applied correctly.

Here lies the distinction a class assignment asks about most often: the first instance and the appeal are courts of merit, because they weigh the facts of a case. The Cassation is a court of legitimacy. According to its own institutional website, its task is to ensure the law is correctly observed and uniformly interpreted, to preserve the unity of national law, and to respect the boundaries between different jurisdictions: it rules on errors of substantive or procedural law and flawed reasoning, setting principles that bind the court the case is sent back to. Beyond this, the Cassation also has non-judicial duties, such as determining which court has jurisdiction over a case or weighing in on legislative elections and abrogative referendums.

Who judges and who prosecutes: judging and prosecuting magistrates

Within the ordinary judiciary lies another distinction, often mistaken for a rank but not one at all. Article 107 of the Constitution states it directly: magistrates are distinguished from one another only by function. On one side is the judging magistracy, the judges who decide cases. On the other is the prosecuting magistracy: the public prosecutor, who represents the accusation in a criminal trial, organized into public prosecutor’s offices attached to the Cassation, the courts of appeal, the ordinary trial courts, and the juvenile courts.

What sets the Italian public prosecutor apart from those in some other countries is Article 112: the public prosecutor is required to bring criminal charges. Prosecutors cannot decide, out of convenience or expediency, not to proceed: if the elements of a crime emerge, they must act. It’s a duty, not a discretion.

The justice of the peace

Alongside career magistrates, who enter the profession through a competitive exam, another figure operates: the justice of the peace. The Italian Ministry of Justice’s glossary defines it as a lay magistrate, temporarily assigned judicial functions. The role carries no employment relationship with the state, and the term lasts four years and can be renewed once.

The justice of the peace began operating on May 1, 1995, replacing the conciliating judge, whose office was abolished. Its civil jurisdiction is much broader than that of the former conciliating judge; from January 1, 2002, criminal jurisdiction was added as well, for minor offenses that don’t require complex investigation.

Judicial self-governance: the CSM

The independence of judges would count for little without a body to safeguard it from within. That is the task of the Superior Council of the Judiciary, established by Article 104: the judiciary is an autonomous branch, independent of every other power, and the CSM is its self-governing body.

The Council is chaired by the President of the Republic. Its ex officio members are the first president and the prosecutor-general of the Court of Cassation. The other members are elected: two-thirds by all ordinary magistrates, from among their various categories, and one-third by Parliament in joint session, chosen from among tenured university law professors and lawyers with at least fifteen years of practice. Elected members serve four-year terms and cannot be immediately re-elected. The exact number of members is set by ordinary law, not by the constitutional text, and it has changed more than once over time.

Independence, tenure, and a fair trial

Three articles round out the guarantees. Article 104 sets the judiciary’s independence from every other branch of the state. Article 107 adds security of tenure: magistrates cannot be transferred, suspended, or dismissed from service except under the guarantees the rules on the judicial system provide, or with their own consent; the power to bring disciplinary proceedings belongs to the Minister of Justice.

Article 111, finally, describes the fair trial: jurisdiction is exercised through a fair trial regulated by law. Every trial takes place in an adversarial process between the parties, on equal terms, before a third-party and impartial judge, and the law guarantees its reasonable length. These are the minimum conditions for a trial, at any level, to be called fair.