That is, how a subjective public right of constitutional rank has become a mere allocation of workloads among magistrates, oscillating between vertense instances, abstract models of administrative organization and lack of transparency.
“The guardianship of the natural judge is considered one of the greatest and most valuable for the freedoms and rights of citizens“: this is how the distinguished jurist, magistrate and lawyer, Lodovico Mortara, expressed it even in 1929.
This principle of legal civilization, now transfused into Art. 25, paragraph 1, of the Constitution (“No one can be diverted from the natural judge pre-established by law“)[1] sees its expression not only in the necessary compliance with the rules on jurisdiction and competence and in the prohibition of establishing extraordinary judges or special judges, but also in ensuring certain and predetermined criteria regarding the allocation of judicial business to individual judges.
These distribution rules are known in the Italian legal system as “tables” or the locution “tabular system,” and they implement – through the general regulatory and connecting work carried out by the Superior Council of the Judiciary, participated in at various levels by individual judicial offices – a model that tends to guarantee the independence of individual judges within the office and, on the other hand, would like to ensure compliance with the constitutional principle of the judge pre-established by law.
However, there is an irreconcilable contrast between those (criminal trial scholars, lawyers, and constitutionalists) who believe that the system is a functional expression of a constitutional right and those (the judiciary), on the contrary, who identify it as a mere organizational tool, an internal matter within the category that does not need public observation, knowledge or control. And hence also the general lack of verifiability that -in concrete terms- characterizes the subject matter. Suffice it to observe with what difficulty the tables of many judicial offices can be found and consulted, sometimes hidden in the maze of poorly indexed websites, other times completely absent: an expression of a general lack of transparency.
Moreover, a constant debate has developed over time around this system, fueled by its complex (and sometimes cumbersome) procedures, until it recently led to an attempt at an organic reform of the judicial system, aimed at solving some of its structural criticalities, but which still does not touch the heart of the matter.
Alongside it, there remains the judiciary’s strenuous defense of a principle of their own devising (but which finds no support in the norms and scholarly opinion), namely that that of the judge pre-established by law is a precept applicable only to the judicial office and not to the individual judge as a natural person.
judge as a judicial office and not as an individual, lack of transparency and verifiability in practice, compounded by the nonexistence of procedural remedies for violations and the provision of mere and theoretical disciplinary sanctions. This is the framework of the idea that the choice of judge should in no way be verified, as an internal (almost secret) matter of judicial offices.
The natural judge pre-established by law and the system of assignment to individual judges.
The current procedure for assigning trials to individual judges is the result of a stratification of primary and regulatory rules, in which the role of the Superior Council of the Judiciary, a body of self-government and guarantee of judicial power, is central. This articulated regulation had, in our system, a genesis dating back to the early 1970s and has experienced a progressive evolution, both in legislative and jurisprudential terms, which has come down to recent reform projects and the ensuing debates.
What, in the eyes of most, appears to be an exquisitely technical issue and the exclusive preserve of legal practitioners, actually has a deep-rooted connection to the rights and guarantees of all citizens. In concrete terms, the discipline (which might be perceived on the surface as a mere automatic mechanism for dividing the workload of a judicial office) represents-particularly in the criminal sphere-a delicate and fundamental moment for respecting the fundamental rights of the accused and other parties.
In these terms, the SCM itself – in one of the first circulars introducing an embryonic procedure of “tabular” allocation of cases among judges in individual judicial offices[2] – stated that the allocation model was “aimed at ensuring at one and the same time the internal independence of judges and the principle of judicial pre-establishment […]“.
It was, therefore, openly evoked Art. 25, Paragraph 1 of the Constitution, according to which “no one may be diverted from the natural judge pre-established by law.”[3] The principle of pre-establishment of the judge, contained in the part of the constitutional charter relating to the rights and duties of citizens and also referred to by Art. 6 of the ECHR[4] and 47 of the EU Charter of Fundamental Rights[5], underlies the guarantee of a fair trial, as it ensures impartiality[6] and, consequently, the credibility and reliability of the judiciary in a democratic system.
In fact, this guarantee has an origin well before its inclusion in our Constitutional Charter and, even, dates back to the revolutionary constitutions in late-18th-century France and later resumed in the French Constitutional Charters of the mid-19th century,[7] which saw the affirmation of the aforementioned principle as a reaction to the sovereign’s interference in judicial affairs.
In other words, the aim was to entrust only the law with the power to regulate the judiciary and its organization, thus preventing, for example, the sovereign from being able to ad libitum establish a new extraordinary judge (who would adjudicate specific facts or well-identified persons) or special judges (who would know and adjudicate a generality of disputes pertaining to matters normally falling under the aegis of ordinary jurisdiction).
The ensuing normative evolution led to the introduction of the same provisions in the Statuto Albertino (first)[8] and in the Constitution (later): moreover, a corollary of today’s constitutional principle is also expressly stated in Article 102, Paragraph 2 of the Constitution,[9] which provides for the prohibition of establishing “extraordinary judges or special judges.”
Net of this pacific prohibition, the interpretative development of the principle of judicial pre-establishment contains within itself a further and broader scope, which was well clarified by the Constitutional Court in a pivotal pronouncement on the subject: in ruling no. 88 of 07.07.1962, the Constitutional Court affirmed that the pre-establishment of the judge by law is realized in the “prior determination of jurisdiction, with reference to abstract cases that can be realized in the future, not already, a posteriori, in relation, as they say, to a reigiudicanda that has already arisen” through the identification of a jurisdiction immediately and exclusively fixed by law, without the possibility of a “alternative between one judge and another, provided for by law, but resolvable ex post facto, by individual measure, in relation to a given proceeding“, as “pre-establishment of the judge and discretion in its concrete designation are criteria between which there is no possible reconciliation“.
In these terms, the Law Judge identified in Art. 25, para. 1 Const. a reservation of the law regarding the jurisdiction of the court, hence the unconstitutionality of any provision that gives executive and judicial bodies the power to modify post factum the jurisdiction of the court[10]; on the other hand, the same Court has remarked on the substantive scope of the principle of the natural judge pre-established by law: it meets the need to assure every individual that his or her actions will be judged by a pre-established body, “i.e., identifiable on the basis of rules that pre-existed the reigiudicanda and are such as to preclude any discretion on the choice“.
As anticipated, this rule constitutes the basis on which the guarantee of impartiality of the court is rooted, as it excludes that its designation (as well as the determination of its competencies) can be conditioned by external factors, subsequent to the facts to be judged[11]. In other words – and borrowing the thinking of authoritative doctrine – “Art. 25, paragraph 1 Const. responds to the fundamental right to have an independent and impartial judge, who, in the conflict between opposing claims submitted to his or her judgment and between the parties to the trial, cannot give rise to the doubt that he or she has been specially established for that dispute and for those parties”[12].
To summarize, the principle of judicial pre-establishment thus guarantees the right to be judged impartially and free of bias or conflict of interest, according to a system that prevents the possibility of choosing the judge or influencing his or her appointment process in any way on the basis of contingent convenience. In addition to being fundamental to ensuring the functioning of justice and the fair treatment of citizens, the knowledge that they are being judged by a judge chosen by law according to objective and impartial criteria is also fundamental to nurturing individuals’ confidence in the judicial system.
But if it is clear from the beginning that Art. 25 of the Constitution is the cornerstone of the rules of jurisdiction with a view to the allocation of business among the various judicial offices, however, it is more difficult to determine whether the same principle of pre-establishment should also refer to the judge as a natural person.
In other words, should the certainty of a pre-establishment of the judge (even if only in the criteria of allocation and distribution) concern only the deciding body objectively understood (i.e., the office) or also the individual judge as a natural person, within that body? This is one of the most controversial issues in the field and one that, to this day, has not found a definitive solution.
The majority doctrine holds that the natural judge should be identified with the magistrate who is a natural person[13]because only this approach allows for the full and concrete realization of judicial preconstitution; on the contrary, excluding from its application the allocation of cases among individual magistrates within the same judicial office would deprive the aforementioned guarantee of effectiveness. In terms as hyperbolic as they are concrete is expressed the famous adage that “To prevent a given trial from being tried by the Court of Catania instead of the Court of Ragusa is worth nothing if it does not remain prevented from being constituted by the Court of Ragusa by applying to it the judges of the Court of Catania.”[14].
The issue has also long been debated in jurisprudence, especially constitutional jurisprudence: if, in fact, the Supreme Court, in a tranchant manner and contrary to the doctrine’s position, has referred the cited principle to the adjudicating body only and not to the judge as a natural person[15], the Constitutional Court has examined the issue more penetratingly, making various pronouncements not immediately subsumed into a single, clear-cut stance on the issue.
In summary (and in the knowledge that the issue pertaining to the determination of the boundaries of the concept of “judge” would require a monograph-length study), the Constitutional Court has oscillated between the majority doctrine’s reading[16] and the more restrictive one expressed by the Supreme Court: according to some commentators, this apparent discrepancy stems from the Consulta’s need to “combine the most guaranteeing interpretation with the need to ensure the good performance and efficiency of the judicial system.”
Accordingly, “Indeed, the constitutional judge is aware that only by identifying the natural judge with the natural person is the guarantee contained in Article 25, Paragraph 1, Const. fully protected. However, he is equally aware that such a strict approach may undermine the proper organization of the justice service, an interest also worthy of attention. Ultimately, the need for careful balancing of the different values at stake emerges from constitutional jurisprudence.”[17]
In any case, net of interpretative uncertainties as to the actual extent of the principle in Art. 25, paragraph 1 Const. it is the Superior Council of the Judiciary itself that anchors its own regulatory provisions on the criteria for the assignment of proceedings within individual judicial offices to the guarantee of the natural judge pre-established by law. And in fact, as anticipated, the so-called “tabular system” is based on this principle: according to other scholars, it was precisely the spread of the “tabular system” and the subsequent introduction of the rules in Articles 7 bis and 7 ter in the Law on Judicial Order (R.D. No. 12 of Jan. 30, 1941, discussed below) that more clearly linked the assignment of judges to individual offices with the principle of judicial preconstitution. Evidence of this would be the fact that the Constitutional Court’s most guaranteeing interpretation would reside in pronouncements following the enactment of the aforementioned provisions.
However, the relevance of the correct and certain identification of the judge as a natural person appears even more evident on the basis of a statistical consideration.
In fact, within the Italian legal system (with particular reference to criminal justice), through the different stages and degrees of proceedings, the “moments” during which a single individual rather than a college decides are clearly predominant, partly because of the inverse proportion between the seriousness of the facts of crime and the frequency of their commission. Where in the presence of a collegial judge we might consider “diluted” the risks associated with a deviation from the rules in the identification of one or more judges, in the case of monocratic composition the trust placed by users of the justice system would be far more exposed to danger.
In fact, criminal proceedings in the Ordinary Courts in the first quarter of 2023 totaled 1,005,982, of which 57.47 percent are pending before the Court in monocratic composition, 39.03 percent before Judges for Preliminary Investigation or Judges for Preliminary Hearing (both monocratic), while only 3.45 percent and 0.4 percent are pending before the Court in collegiate composition and the Assize Court, respectively.
To these numbers, moreover, can be added 72,040 proceedings under the jurisdiction of the Justice of the Peace. Including the latter, we reach a percentage of 96.73 percent of proceedings that are handled, in at least one of their stages and degrees, by a monocratic judge. Consider, finally, that during the same period the proceedings pending in the Courts of Appeals and the Court of Cassation are naturally much lower, 247,588 and 17,697 respectively[18].
The tabular system
Originally, the “tabular system” had its source exclusively in the secondary discipline of SCM circulars, but in 1988 it was then followed by the introduction into the Judicial System Act of Art. 7 encore (now headed “Tables of Judicial Offices”) and 7 ter (now headed “Criteria for Assignment of Business and Replacement of Impaired Judges”) and their subsequent reforms.
According to these provisions, the assignments, therefore, are defined according to a system of organization tables made for each office, which are determined every four years (previously every three years) by decree of the Ministry of Justice, based on the deliberations of the Superior Council of the Judiciary (Circular on the formation of the organization tables of judicial offices), in compliance with the rules of judicial order.
In fact, the role of the SJC in determining allocations(under Article 105 of the Constitution[19]) is an expression of guarantee vis-à-vis the judiciary, which in the absence of this power would lose its autonomy vis-à-vis the other powers of the state, and in particular the executive; the latter, in fact, could otherwise decide on appointments, transfers, and promotions of magistrates, undermining their independence.
Moreover, while based on the guidance of the Circular, the process of forming the tables of each judicial office thrives on a wide-ranging comparison that starts from the reports made by the managers of the judicial offices and is enriched – among others – by the contributions of all the magistrates working there, the Bar Councils, the Public Prosecutors’ Offices and the administrative managers, and the opinion of the Judicial Council.
Therefore, the tables are the result of an expanded implementation process, which, however, is inspired by a principle of certainty and stability of the magistrate’s assignment: and in fact, once the table is approved, a reasoned decision is required to allow its modification, which severely limits the possibility of arbitrary intervention in the Office’s choice of judge.
On the other hand, also crucial within the tabular system is the issue of the assignment of managerial and semi-managerial positions, which has become a highly debated issue in recent years. In fact, on the one hand, news cases concerning the work of the SJC have ignited debate in the public opinion, fueling fears of “piloted” choices in the selection of appointees and, consequently, of their work in the exercise of the judicial function[20]. On the other hand, the system has proven fallacious where contrasts between the SJC and the administrative jurisdiction have become apparent: the Council of State’s annulment of some of the apex appointments made by the judiciary’s self-governing body (First President and Deputy President of the Supreme Court) have raised important questions about potential conflicts of powers and the reviewability of some of the latter’s decisions[21].
Compliance with the table: poor verifiability in practice and lack of protective tools
The Italian legal system has given the principle of the natural judge a role of absolute importance in the construction of its model of a democratic judicial system: the tabular system itself, albeit with its perfectibilities, is a concrete manifestation of the search for full implementation of the principle set forth in Art. 25 of the Constitution[22].
A preeminent and laudable attention to the formal datum, however, has never been followed by an effective and shared publicity of the tables adopted by individual judicial offices: from a practical point of view, the subjects entitled to the right to a natural judge (i.e., citizens) have no real knowledge of the criteria and logic of the allocation and assignment of trials to individual judges.
The tables, in fact, are not the subject of a structured and shared work of publication on the Web: these sometimes cannot be found, in other cases they are not properly indexed and, therefore, cannot be searched easily by the individual user. A transparency flaw in complete contrast to the current (regulatory and technical-organizational) setup of public administrations, which through the use of IT resources allow clear and unambiguous information accessibility to individual private users.
The origin of this shortcoming must be found in the very thought that animates the relevant case law: the tabular system is only an organizational tool and is not an expression of any constitutional principle.
If this were the case and such a reading were correct, the need to allow for concrete verifiability of citizens’ compliance with the tables would obviously be negligible.
It should therefore be made clear that the perspective of observation must be reversed: the tables are not a mere internal matter, resulting from the interpretation that is made of the legislative and constitutional dictates; on the contrary, it is the latter orientation that is a slavish consequence of the desire to keep the table system – in application – as much as possible under the exclusive control of the judiciary itself.
This deficiency is further and consistently exacerbated by the lack of effective procedural remedies, through which the subject party to the court proceedings can concretely enforce his or her right to a natural judge: as a result, the latter now emerges “as the most classic example of a‘paper right‘“[23].
In other words, although there is an abstract guarantor model, which ensures in its principles respect for the pre-establishment of the judge, there is no concrete and full visibility of the model adopted by the individual office and, from a technical-legal point of view, there is no remedy that allows the citizen to activate this right in its “strong conception”[24].
Indeed, where there is participation even from outside the judiciary that allows for (more or less efficient and virtuous) sharing at the approval stage, it is precisely at the application stage, as mentioned above, that the most critical issues become apparent.
From the point of view of the citizen, understood as the user and recipient of the justice “service,” what is most important is not so much that the table meets efficiency requirements, but to know that it will actually be met[25] or-alternatively-that there will be a procedural means to claim respect for one’s right to a natural judge.
This principle, therefore, would be guaranteed, on the one hand, by the cognizability of the tables (to verify compliance) and, on the other hand, by the provision of appropriate remedies.
Otherwise, the assignment of judicial business to individual judges can only remain a mere internal “organizational fact”-the preserve of “assignees” only-and not a constitutional right of individuals.
According to the most authoritative scholars of constitutional law, this impasse (and, in particular, the absence of procedural remedies) originates from a multiplicity of factors, intersecting with each other: some related to the interpretation of the concept of “natural judge,” others connected to the necessary balancing act (which the Constitutional Court has made itself the bearer of in numerous pronouncements) between guarantees in the exercise of the judicial function and good performance in the administration of justice.
Among these profiles, there is one that assumes absolute centrality: the absence of agreement on the principle of the identifiability of the natural judge with the judge-person (as already described) prevents, as a result, the jurisdictional protection-in terms of full protection-of the right to the pre-establishment of the judge.
And in fact, if it is not pacifically recognized that Art. 25 of the Constitution is also concerned with the assignment to the judge-person of the specific dispute (and thus the table and its compliance), it will be impossible to admit that a trial party can act to demand compliance with the table criterion when denied or pretermitted.
Coming to the normative datum, today the law does provide that the revocation/amendment of allocation orders must be justified, and the Constitutional Court itself has, in the past, intervened on the point, stressing that any amendment of an allocation order should be limited “to objective needs of the organization of judicial services. Nor should the duty of adequate justification be precluded, so that these requirements are adequately stated, for the purpose of possible review of the measures themselves“[26].
Nonetheless, Article 7a of the Judicial Order.[27] – following the 2007 reform – stipulates that “violation of the criteria for the allocation of affairs, except for possible disciplinary relief, shall in no case result in the nullity of the measures taken“: therefore, it is possible for the criteria for assignment to be bent to the contingent needs of the office, resulting, however, in the loss of the objectivity of the method of choice that is a guarantee of the constitutional principle of the natural judge pre-established by law, without there being any procedural consequences for the acts and measures that will be taken by the judge. Here is the lack of protection of the “strong conception” of this right.
This issue is, in fact, at the heart of the current debates regarding the effectiveness, certainty, verifiability and transparency of the allocation criteria: in fact, as anticipated, the use of a predetermined tabular system responds, yes, to an organizational need (e.g., to allow the workload to be distributed fairly and as efficiently as possible), but it should also be a direct application of the principle of preconstitutionality of the judge. Principle that would be denied, if, although there is a clear rule, there is a discordant and uncertain application of it, realized – for example – through the frequent use of allocations in derogation of the ordinary provisions.
In this sense, the lack of procedural sanctions for acts performed by a judge composed (or assigned) in derogation of the provisions and, likewise, the absence of remedies that can be exercised does not allow the substantive parties and the lawyers themselves to “demand” compliance with those rules that should have been introduced, at least in part, to guarantee their constitutional right. This, at least, according to the CSM itself.
The introduction of the quoted provision within Art. 7a has, in fact, cleared the field of doubts, lucubrations and attempts at systematic interpretations with which the protagonists of judicial activity had been confronted, in an attempt to identify a “minimum threshold” of protection of the principle of Art. 25(1) of the Constitution.
On this topic, the approach in criminal justice is particularly significant.[28]: such prominence in the debate on Art. 25 Const. does not originate only and so much from the general relevance of the constitutional goods involved in the criminal process, but must be traced to the fact that, in this area of justice, the aforementioned constitutional principle and its implementation model (the tabular system) had suffered substantial negation[29].
From a normative point of view, in fact, the introduction-with the 1988 Code of Criminal Procedure-of Art. 33(2) c.p.p. (according to which “Provisions on the assignment of judges to judicial offices and chambers, the formation of panels, and the assignment of cases to chambers, panels, and judges shall not be deemed to pertain to the judge’s capacity“) ruled out the possibility that any misassignment could call into question the judging authority and its capacity.
The strict interpretation of this rule by the Supreme Court had originally confirmed that the scope of Art. 25 Const. was related only to the rules of allocation of jurisdiction between judicial offices, never expressly recognizing the identifiability of the natural judge with the physical person of the individual magistrate.
A reading in open opposition to the main thesis of the doctrine, which led to a question of the constitutionality of Art. 33(2) c.p.c. in relation to Art. 25, paragraph 1 of the Constitution, resolved by the Constitutional Court in ruling no. 419 of 1998: in an interpretive rejection ruling, the Court had to specify that the indicated constitutional provision attributes to citizens “the assurance that the jurisdiction of judicial bodies is removed from any possibility of arbitrariness. In order to ensure its impartiality, it is ruled out that the judge may be designated both by the legislature with singular rules derogating from general rules and by other parties with acts referred to them, after the dispute has arisen”[30]; however, it ruled that the criteria for assigning individual proceedings “while they should be objective, predetermined or otherwise verifiable” were “notnecessarily configured as constituent elements of the judge’s general capacity, to the deficiency of which the legislature linked the nullity of the acts“[31].
Consequently, as relevant as any violation of the allocation criteria was, and as much as it should be the subject of appropriate protection mechanisms, it could not affect the judge’s ability. However, the same Consultation adds that “This does not mean that the violation of the business allocation criteria is irrelevant and that there are not, or should not be foreshadowed, appropriate remedies of which the parties can availthemselves.”[32].
This pronouncement, together with the affirmation of the principles of due process in Art. 111 of the Constitution, also fueled an attempt at change in Supreme Court jurisprudence, which sought to identify those “appropriate remedies” for the parties in cases where the violation of the allocation criteria was so significant as to achieve, in fact, “The establishment of an ad hoc judge to decide on a particular dispute” such as to impair the judge’s impartiality.
The specific case[33] concerned a precautionary proceeding in which, on a measure issued by the G.I.P. of Cosenza, the Court of Catanzaro had ruled (revoking the precautionary measures ordered), composed – after the adoption of a specific order by the President of the First Section of the aforementioned Court and after an extraordinary hearing had been set – of a specially constituted panel, from which all the judges assigned by means of the tables were unconnected (none of whom was missing or prevented from attending) and in which the President himself and two judges not assigned to the review participated. Underlying this measure was the significant burden of the review section.
In ruling no. 27055 of 7.05.2003, the First Chamber of the Supreme Court censured this measure, stating that “if it is true that violations put in place in “tabular” matters cannot be traced back to the alveo of absolute nullities -right the specific dictate of art. 33 paragraph 2 c. p.p.- it is equally true that there exist and can exist acts and/or measures that only formally can be ascribed to the scheme now cited, but which instead, precisely because they are carried out outside the same, are to be qualified as having been put in place “extra ordinem” and, as such, falling within the group of those nullities provided for by Articles 178 n. 1 lett. a) and 179 paragraph 1 c. p. p. as irreducibly in contrast with the constitutional precepts in question”[34].
However, this effective openness to the enhancement of the “strong conception” of the right to the natural judge was, in the following years, limited by the further pronouncements of the same court of legitimacy, which, on the one hand, rejected (or declared inadmissible) the subsequent questions pertaining to the issue of non-compliance with the allocation criteria, and, on the other hand, introduced additional requirements for identifying the “threshold of procedural relevance” of violations in the tabular system.
Summary of the long jurisprudential path since the 2003 pronouncement can be found in the recent Cass. Sez. IV, no. 32899 dated 8.01.2021, according to which violations of the rules on trial assignment “affect the capacity of the judge, resulting in nullity under Article 178 c.p.p., lett. a), only when their purpose is to circumvent or violate the principle of the natural judge pre-established by law […], that is, when extra ordinem situations result or are proven, characterized by arbitrariness in the designation of the judge and produced outside of any tabular provision, precisely to constitute an “ad hoc” judge, situations before which it can no longer be affirmed that the decision of the regiudicanda was issued by a judge pre-established by law […]. It is necessary, therefore, to bring about a distortion of the essential principles and canons of the judicial system, due to the violation of rules such as those concerning the ownership of the power to assign affairs in the heads of the offices and the obligation to state reasons for orders”[35].
Accordingly, the requirements introduced by way of interpretation pertain, on the one hand, to the absolute eccentricity of the measure with respect to the provisions of the law (e.g., absence of justification for the allocation measure) and total pretermission of tabular administrative rules, and not to their “mere violation”; on the other hand, with regard to the “distortion of principles,” this must constitute the pursuit of purposes outside the ordinary exercise of the function, similar to the category of “misuse of power” proper to administrative law.
In this sense, the very recent Cass. Sez. II no. 3534 of 2023, while acknowledging the hermeneutic effort of the Constitutional Court (first) and the court of legitimacy (later) to attribute endoprocessual relevance to the violation of the allocation provisions and the balancing of the provision in Art. 33, Paragraph 2 of the Code of Criminal Procedure and constitutional and supranational principles on the subject of the judge pre-established by law[36], essentially traced the orientation that it is true that “Violation of administrative “tabular” rules can also affect the ability of the court“, but only if “the same has the aptitude to distort the orderly structure, that is, to affect the independence and impartiality of the same, attributes that are decisive in defining the rationale of the protection of the right to the natural judge“. This aptitude is measured in relation to the aforementioned requirements ( extra ordinem nature of the measure and purpose of misuse of power).
In any case, the Cass. Sez. II no. 3534 of 2023, however, takes pains to reiterate that it can “be confirmed that the guideline that the constitutional guarantee of the natural judge concerns the judicial office, not the physical person of the judge.”
In more general terms, both of the above-mentioned pronouncements refer to the most recent rulings on the subject by the European Court of Human Rights (ECtHR) and the Court of Justice of the European Union (CJEU): the former, in ruling Gudmundur Andri Astradsson v. Iceland of 1.12.2020[37], stated “That the violation by a “judge” of provisions of domestic law governing the constitution and jurisdiction of judicial bodies entails in principle a violation of Article 6 § 1“, thus recognizing the relevance of the principle and claiming that the European Court has jurisdiction to decide on compliance with the relevant rules of domestic law. Nevertheless, the Strasbourg Court still recognized that “in light of the general principle that it is primarily up to the national courts themselves to interpret domestic legislation, the Court has also held that they can question their assessment only in cases where there is a clear violation of these rules“.
At the same time, the CJEU[38], aligning itself with Strasbourg jurisprudence, stated that although the right to a natural judge “guaranteed by both Article 6(1) of the ECHR and Article 47(2) of the Charter, is an autonomous right, it is nonetheless very closely linked to the guarantees of independence and impartiality arising from the two provisions in question“; on the other hand, it specified that “an irregularity committed during the appointment of judges within the judicial system in question entails a violation of the first sentence of the second paragraph of Article 47 of the Charter, particularly when such irregularity is of such a nature and seriousness as to generate a real risk that other branches of power, in particular the Executive may exercise an undue discretion such as to endanger the integrity of the result to which the appointment process leads, thus giving rise to a legitimate doubt in individuals as to the independence and impartiality of the judges concerned, which is the case where fundamental norms which form an integral part of the establishment and functioning of said judicial system are in question“.
Despite the evident openings of supranational jurisprudence, in the Italian legal system-and particularly in criminal justice matters-the cone of endoprocessual relevance of the effective activation of the right to the natural judge pre-established by law in relation to the rules (primary and regulatory) on the assignment to the judge natural person is largely reduced by the text of Art. 33, Paragraph 2 of the Code of Criminal Procedure and, also, by the requirements posed by case law in the constitutionally oriented interpretation of the same. This makes the upholding of procedural exceptions in connection with erroneous assignments a kind of “legal unicorn,” in fact.
At the same time, the tenor of the aforementioned Article 7 bis does not seem to leave room for different interpretations of a general nature, insofar as it categorically excludes the configuration of any nullity of measures adopted for non-compliance with the rules on allocation.
Current prospects for reform
The desire to reform the judiciary animated the work of the Ministry of Justice and Parliament for several years, until it underwent a decisive acceleration precisely because of the facts mentioned above, with the fear on the part of some that there might be a punitive logic towards the judiciary, originating in the particular historical moment[39]. Specifically, an initial bill was already presented in 2020 by then-Minister Bonafede, which focused on reforming the SJC[40].
Later, with Minister Cartabia, it came to materialize a delegation of authority for a broader reform, which would intervene in both the ordinary judicial system and the military system (granting a longer period of two years for the latter).
Thus, in 2022, Delegated Law No. 71, which gave the government a deadline until June 21, 2023 to reform the judiciary. However, this deadline was later extended by six months, given the need for additional time expressed by the current minister to make “corrections” to the original delegation of authority[41].
The law already contains rules of immediate application, particularly the elevation of the period of effectiveness of the tables to four years. This is a change that has already been welcomed, given the difficulty that the three-year period entailed for the realization of the objectives indicated by the organizational projects of the offices and the lack of alignment with the periods of tenure of the Presidents of Courts and Sections[42].
The reform should intervene in an organic manner, revising – among others – the criteria for the assignment of managerial and semi-directorial positions according to criteria of transparency and enhancement of merit, as well as to the modification of the procedures for the evaluation of magistrates and, of course, of the procedure for the approval of the organizational tables of judicial offices[43].
Regarding the formation of these, a central goal should be to simplify and speed up the process of formation and approval, while maintaining the possibility of taking action to change them during the four-year period. The latter provision is critical to adapting the tables to the evolving needs of the offices, which require immediate and effective action for the proper functioning of the system and reasonable duration of trial[44].
In fact, a tabular system with large margins of inefficiency may not allow the proposed goals to be achieved, especially with regard to the principle of natural justice. The enabling law addresses this problem and identifies two upstream tools for improvement: one concerns, as highlighted, the simplification of table drafting, stipulating that office organizational documents, tables and organizational projects must follow standard templates established by the SJC and transmitted electronically, along with the definition of standard templates for judicial council opinions, containing only critical data. The other tool concerns the simplification of council deliberations by allowing automatic approval of tabular forecasts unless the council expresses contrary opinions within a specified period.
Some commentators advocate a broad interpretation of the concept of “critical data,” which should be based on a thorough analysis of the office’s organizational choices, assessing their ability to qualitatively improve performance[45]. In other words, judicial councils should avoid merely reporting the absence of obvious problems.
In operational terms, it would be essential to simplify the regulatory apparatus, which currently appears too complex (the table-forming circular alone consists of 271 articles), and to consider normalization based on general principles for rules and procedures, rather than repeating similar principles for each aspect of the subject matter, as well as effective procedural remedies for any violations. In addition, it would be appropriate to provide an office file that would allow all stakeholders, including users of the justice system, to have a complete view of the office’s structure and performance, including through updated online statistical data.
Such solutions could improve access to data and documents, promoting transparency in judicial organization and supporting the renewal of the judiciary, thus contributing to the overall improvement of justice and confidence in the goodness of the work of those working in it.
International context and examples from common law systems
It is also worthwhile to turn our gaze to the international context to observe different perspectives on the application of the principle of the court pre-established by law and its concrete declinations in the context of trial assignments. Interestingly, as will be seen below, these are sometimes a manifestation of the community’s confidence in its justice system.
There are numerous methods for assigning trials to judges. Depending on the court system, one can find “random” modes based on algorithms, periodic rotations, assignments based on the magistrate’s specialized expertise or the severity and complexity of the case at trial.
In particular, common law systems, supremely that of the United States, allow for an appreciation of the use of methods that introduce a greater degree of discretion for the Office in choosing the Judge.
In the federal context, for example, as is the case in our country, an attempt is made to effectively reconcile the needs for equitable allocation (in terms of workload) and cautions against possible “judge shopping”[46]. Unlike in Italy, however, there is more freedom in determining the actual manner of allocation, making the final choice fall to the chief judge.
Many offices resort to a random draw, others to a rotation of available judges.
What sometimes happens is that judges are selected for particularly complex cases who have gained specific experience and skills that make them more qualified in the subject matter.[47]
Interesting in this regard is a comparative research study that investigated the different ways in which judges are managed in six European countries: the Netherlands, Denmark, Germany, the United Kingdom (England and Wales), Italy, and France[48].
The allocation of judges and workload also differs greatly based on the characteristics of different judicial systems.
Specifically, with regard to the decision on the destination of the judge, in England and Wales this is made finally by the Lord Chancellor in agreement with the Chief Justice. In the higher courts (High Courts) transfer is possible at the request of the judge and in agreement with the Chief Justice. In France, the decision on the management of judges rests with the president of the individual judicial office through an organizational decree, which depending on the individual court may not contemplate that there is always a clear division between criminal and civil jurisdiction.
The use of establishing special task forces to deal with heavy workloads in certain courts or matters is also widespread. In France it was mainly to deal with immigration-related cases, in the Netherlands to clear the backlog, and in England and Wales to relieve the overload of specific courts.
The allocation of individual trials, however, varies widely, partly based on the relevance of this operation to the national system. In fact, the principle of the natural judge is not always regarded as a constitutional right as it is in Italy (albeit with the limitations that will be said, precisely in relation to the natural person judge). Indeed, among the countries surveyed, only Germany has constitutionalized a similar principle (of the judge subject only to the law[49]).
In Denmark, the assignment is formally the responsibility of the President of the Office, but in practice this is done by an automated system or by clerk’s office staff according to a “random” criterion. Germany, on the other hand, resorts to decisions of its local judicial council made annually in a process that lasts a few weeks. In France, by contrast, responsibility falls solely on the office manager, with no apparent external control. In the Netherlands, likewise, an even more decentralized system can be observed, in which the coordinators of the individual sections make the final allocation, with the assistance of the chancelleries.
Only in Germany, moreover, is the possibility of disciplinary intervention similar to that in Italy found in the case of deviation from what the Judicial Council determines for assignments.
What is predictably common to all the countries examined is the priority given to the best possible balance of workloads among judges. What is surprising, however, is that in many cases there is no use at all of a system of weighting the load arising from each individual trial (England and Wales, the Netherlands, Denmark with the exception of Copenhagen).
Curiously enough, the “informal exchange” of cases between judges is also common in the latter: should needs arise from workload or questions of expediency, it is possible for one judge to transfer the case to a colleague without any special formalities or external controls.
In general, where in Italy, Germany or France there is fairly consistent adherence to the allocation rules, in other countries there is considerable flexibility determined by contingencies.
This division is also seen in the level of detail and rigidity of the rules concerning incompatibilities and subsequent abstention of magistrates.
Germany and Italy, on the one hand, and England and Denmark, on the other, appear to be the extreme manifestations of two different manifestations of two different approaches with respect to mechanisms to guard the independence and impartiality of judges. In fact, where the former have felt the need-perhaps for historical reasons-to extrinsicate these principles in well-defined procedures, the latter see these principles as inherent and implicit in the very nature of judges, with a greater focus on aspects of organizational efficiency rather than on guaranteeing (un)constitutionalized rights.
Distrust of the system
In the Italian legal system, the relationship between the “tabular system” and the principle of the natural judge is pervaded by a dual soul.
For one thing, the constitutional guarantee is the basis on which the judiciary bases its work of certain, guaranteed and consistent allocation of affairs within individual judicial offices.
This need is complemented by the needs for the internal independence of individual judges and, likewise, the need for refinement of the administration of justice, in terms of resource allocation, efficiency and, in general, good performance of the administration itself. And it is in this direction that the most recent reform projects seem to be moving.
On the other hand, on the other hand, the law and even more so the jurisprudence does not embrace the more guaranteeing and constitutionally oriented view of the tabular assignment rules, ruling out the possibility that the actual holders of the right to the natural judge can in practice, except in exceptional cases, take action to have their prerogative protected, where disregarded.
In addition to this, the absence of a shared and stable transparency of the model tables adopted by individual judicial offices prevents, in any case, a verifiability of the specific rules adopted, thus making it difficult for the parties to a proceeding to find themselves even in the condition of recognizing and identifying the existence of a violation of the tables themselves (even in those hypotheses of relevance accepted by case law because they are extra ordinem and connoted by misuse).
This “paradox” leads, inevitably, to a progressive disinterest of citizens -end recipients of the concrete effects of these rules- in the rules that oversee the proper distribution of trials at individual offices and, consequently, the certain identification of the judge who will decide the fate of a dispute. Trivially, why should one bother to know a rule that one will have difficulty identifying and, where disregarded, will have no recourse whatsoever for the procedural party on whom it affects?
As a result, the debate on the perfectibility of the tabular model (and its concrete application) is increasingly the exclusive concern of magistrates, who are (legitimately) concerned with improving the administrative organization of the exercise of judicial power; on the other hand, there is no appreciable desire to implement the transparency and publicity of the allocation systems, if only because any violations are constantly relegated – pronouncement after pronouncement – to a disciplinary dimension of “mere administrative offence,” internal to the judiciary itself.
This condition, moreover, risks exacerbating the general distrust of individuals in the functioning of the justice system, whose rules, in addition to their (physiological and pathological) inefficiencies and elephantine complexities, are increasingly perceived as distant, inaccessible and self-referential.
Well, the status quo photographed in this way does not originate from specific responsibilities on the part of individual actors in the justice system, but is the result of the apparent semantic uncertainty that seems to pervade the entire subject matter, which concerns the “boundaries” of the principle of the natural judge pre-established by law and its applicability (or not) also to the judge-person.
By clearly sanctioning an extension of this principle to the individual judge as well, a virtuous mechanism could be operated, whereby the individual’s right to the natural judge would be given new centrality not only in relation to the rules of jurisdiction relating to the judge-office, but also to the rules of assignment to the judge-individual.
Moreover, bringing within the procedural system the verifiability and possibility of intervention on assignments would not entail any injury to the autonomy of the judiciary. Instead, there would be a restitution to the citizen of a right that has always belonged to him and that – more or less consciously – has been compressed if not taken away, shielding itself behind the albeit legitimate needs of management efficiency.
“Power, without transparency, is no longer independent but more at risk of deviance and certainly does not engender trust in those subject to that power.”
Prof. Avv. Roberto De Vita
Avv. Antonio Laudisa
Avv. Marco Della Bruna
References
[1] For further discussion of the phrase “natural judge pre-established by law,” see Constitutional Court no. 29 of 1958, in which the Court recognized that the two expressions constitute for all intents and purposes an endiad.
[2] Cf. Circ. n. 7671, 14.05.1968.
[3] See note 1.
[4] Article 6 ECHR: “Every person is entitled to a fair and public hearing within a reasonable time, before an independent and impartial tribunal constituted by law, for the purpose of the determination both of his civil rights and obligations and of the merits of any criminal charge brought against him. (…)”
[5] Article 47 EU Charter of Fundamental Rights: “(…) Everyone has the right to have his or her case heard fairly, publicly and within a reasonable time by an independent and impartial judge, pre-established by law. (…)”
[6] “In the current textbook, until the eve of the entry into force of the “new” Article 111 Const. the reference to Art. 25, paragraph 1, Const. as the primary source of protection of the guarantee of the judge’s impartiality: the principle of the natural judge pre-established by law, it is noted, aims to guarantee the presence of an impartial judge in the individual trial.” (F. Zambuto, By whom are we judged? The natural judge pre-established by law between impartiality, third party and capacity, Right Path, January 15, 2016).
[7] R. Romboli, The natural judge. Study on the meaning and scope of the principle in the Italian constitutional system, Giuffrè, 1981.
[8] Article 71 Albertine Statute: “No one can be diverted from his natural Judges. Therefore, no extraordinary Tribunals or Commissions may be created..”
[9] Article 102 Constitution: “The judicial function shall be exercised by ordinary magistrates established and regulated by the rules on judicial system .
No extraordinary judges or special judges may be established. Only specialized sections may be established in ordinary judicial bodies for certain matters, even with the participation of eligible citizens from outside the judiciary.
The law regulates the cases and forms of direct participation of the people in the administration of justice.”
[10] S. Rovelli, Actionability of the Right to Natural Judge, Rule of Law and the Dignity of the Judicial Order, in Consulta Online, 2022, Ph. II, pp. 603, note no. 18, according to which the subsequent interpretive process of Art. 25(1) of the Constitution has led to a limitation of the absolute character of this principle, highlighting the need for a balancing of this requirement with those of continuity and readiness of judicial functions (cf. Const. court sent. n. 146 of 1969, taken up in Const. court sent. n. 272 of 1998, in which it stated that it is necessary to “balance the objectivity and impartiality of judgments with the requirements of continuity and readiness of judicial functions.”
[11] Cfr. Constitutional Court no. 502 of 1991.
[12] M. Chiavario, Criminal Procedural Law, Utet, Milan, 2009.
[13] Cfr. S. BARTOLE, Independence of the judge (general theory), in Enc. Jur. Treccani, Rome, 1989, XVI, 1 et seq.; R. ROMBOLI, Theory and practice of the principle of judicial preconstitution, in Jur. Const., 1992, 3268. With respect to the rulings of the Constitutional Court cf. A. AGRÒ, N. LIPARI, The jurisprudence of the Constitutional Court., in Quaderni del C.S.M., no. 66, Rome, 1993, 199 ff.; G. FILIPPO, The fair judge between the Constitution, the European Convention and the tabular system, in Dir. pen and Process, 2004, 12, 1523; M. SMIROLDO, The constitutional guarantee of the judge pre-established by law in judgments before the Court of Auditors, in Riv. C. conti, 2006, 6, 245 ff.
[14] G. Foschini, Judges in the name of the people, not already commissioners of the head of the Court, in Foro Italiano, 1963, II, p. 168.
[15] Holding, in fact, that “natural judge must mean the judicial body and not the individual member of the body itself.” See in this sense the famous Cass. pen., Sec. I, Sent. Nov. 22, 1983, No. 161727, but also more recently Cass. pen., Sec. IV, Sent. July 16, 2009, No. 35024.
[16] In particular, in judgments no. 272 and 419 of 1998.
[17] P. Villaschi, The principle of pre-established natural judge in accounting jurisdiction, Journal of the Pisa Group, 2021.
[18] Criminal justice monitoring – years 2003 – I quarter 2023.
[19] Art. 105 Constitution: “Itis up to the Superior Council of the Judiciary, according to the rules of the judicial system, to make appointments, assignments and transfers, promotions and disciplinary measures with respect to magistrates.”
[20] For a summary of the case see https://www.internazionale.it/notizie/2021/09/23/palamara-scandalo-csm. For further study, cf. A. Sallusti, L. Palamara, The system. Power, politics business: secret history of the Italian judiciary, Rizzoli, 2021.
[21] https://ilprocessocivile.it/articoli/news/il-consiglio-di-stato-annulla-le-nomine-dei-vertici-della-corte-di-cassazione
[22] For an excursus on the topic, S. Rovelli, Actionability of the Right to the Natural Judge, Rule of Law and the Dignity of the Judicial Order, in Consulta Online, 2022, Phases. II, pp. 600, note no. 5, in which R. Romboli, S. Panizza, Judicial Order, in Digest of Public Disciplines, Vol. X, Utet, Turin, 1995, 371.
[23] S. Rovelli, Actionability of the Right to Natural Judge, Rule of Law and the Dignity of the Judicial Order, in Consulta Online, 2022, Ph. II, pp. 601, note no. 7, which recalls G. Pino, Il costituzionalismo dei diritti, Il Mulino, 2017, p. 63 and recalls that the expression was introduced into the Italian debate by R. Guastini, Rights, Distinguendo. Studies in theory and metatheory of law, Giappichelli, 1996, pp. 142.
[24] S. Rovelli, Actionability of the Right to Natural Judge, Rule of Law and the Dignity of the Judicial Order, cit. p. 601
[25] G. Scarselli, The tabular system as seen by a layman, Questione Giustizia, 2014, para. 6.
[26] Const. court, no. 173, 2.12.1970.
[27] Royal Decree Jan. 30, 1941, no. 12.
[28] According to G. Lattanzi, The principle of judicial preconstitution in the criminal jurisprudence of the Supreme Court, in Quaderni del Consiglio Superiore della Magistratura, no. 66, 1993, p. 206, has always been considered a true “test case” of the protection of an individual party to a proceeding’s right to his or her own natural judge pre-established by law.
[29] S. Rovelli, Actionability of the Right to Natural Judge, Rule of Law and the Dignity of the Judicial Order, cit. p. 607.
[30] Const. court no. 419 of 1998.
[31] Const. court no. 419 of 1998.
[32] Const. court no. 419 of 1998.
[33] For an extended discussion, see S. Rovelli, Actionability of the Right to Natural Judge, Rule of Law and the Dignity of the Judicial Order, in Consulta Online, 2022, Phrase. II, pp. 612.
[34] Cass. Sez. I n. 27055, 7.05.2003.
[35] Cass. Sez. IV, no. 32899 dated.8.01.2021.
[36] See judgment for an extensive survey of the jurisprudence of the ECJ and the CJEU on the subject.
[37] Also anticipated by previous pronouncements of the same court, such as EDU Court, July 8, 2014, Biagioli v. San Marino, §§ 72 to 74, EDU Court, May 2, 2019, Pasquini v. San Marino, §§ 100 and 101 as well as the case law cited therein.
[38] CJEU, Grand Chamber, Feb. 22, 2022, Joined Cases C-562/21 PPU and C-563/21; CJEU, Mar. 26, 2020, Simpson v. Council Review
[39] G. Campanelli, S. Panizza, Some first-reading observations on the 2022 reform of the judiciary, between novelties and still open issues, AIC Constitutional Observatory, Fasc. 1/2023.
[40] “Bill delegating to the government the reform of the judicial system and the adjustment of the military judicial system, as well as provisions on the system, organization and discipline, eligibility and reinstatement of magistrates, and the establishment and functioning of the Superior Council of the Judiciary” (ddl AC 2861 of Sept. 28, 2020).
[41] https://ilmanifesto.it/ordinamento-giudiziario-slitta-la-riforma-cartabia
[42] F. Vigorito, Judicial judicial office tables and management programs in the “Cartabia project”. The opportunity for change, Justice Matters, 2-3 2022.
[43] In addition, there would be a restriction on the ability to move from adjudicative to prosecutorial functions and vice versa, limiting it to a single move to be made within the first 9 years of entering the role and, after that period, to one time only as long as one of the originating or transferring roles is not in the criminal field. In fact, they would be possible-after the first 9 years had passed-only:
– transition from adjudicative to prosecutorial functions, provided that the person concerned has never held criminal adjudicative functions;
– transition from prosecutorial functions to civil or labor adjudicative functions in a judicial office divided into chambers, provided that the magistrate is not, even as a deputy, in criminal or mixed adjudicative functions.
[44] Art. 2 para. 2 of the enabling act indicates the parameters on which the procedure is to be based, and in particular in sub-paragraph a, it indicates that:
“(a) to provide that the president of the court of appeals shall transmit the tabular proposals accompanied by general organizational documents, concerning the organization of resources and the planning of objectives for the proper functioning of the offices, including on the basis of the assessment of the results achieved in the previous four-year period; to provide that these documents shall be prepared by the heads of the judicial offices, after consultation with the head of the corresponding prosecuting office and the president of the Bar Council; to provide that the above-mentioned documents may be amended during the four-year period also taking into account the programs of annual activities, (…), and programs (…);
(b) provide that general organizational documents of offices, tables and organizational projects shall be prepared in accordance with standard templates established by resolution of the Supreme Judicial Council and transmitted electronically; also provide that opinions of judicial councils shall be prepared in accordance with standard templates, containing only data concerning critical issues, established by resolution of the Supreme Judicial Council;
(c) Simplify the procedures for the approval of the office organization tables provided for in Article 7-bis of the Judicial Order, Royal Decree No. 1941 of January 30, 1941. 12, and the organizational projects of the prosecutor’s office, providing that the proposed office organization charts and organizational projects of the prosecutor’s office and amendments thereto shall be deemed to be approved, if the Superior Council of the Judiciary does not express an opinion to the contrary within a time limit set on the basis of the date the opinion of the judicial council is sent, unless comments have been submitted by the magistrates of the office or the opinion of the judicial council is by a majority.”
[45] F. Vigorito, Judicial judicial office tables and management programs in the “Cartabia project”. The opportunity for change, cit.
[46] A. Botoman, Divisional judge shopping, Columbia, 07.2018.
[47] https://www.iand.uscourts.gov/content/how-are-federal-judges-assigned-cases
[48] https://cadmus.eui.eu/bitstream/handle/1814/7713/EJLS_2007_1_2_12_FAB_EN.pdf?sequence=1
[49] Art. 97, Section I, Grundgesetz:
“1. Judges are independent and subject only to the law.
2. Career judges permanently placed on the rolls may not against their will be relieved before the expiration of their period of service, nor may they be suspended from their office for an indefinite or definite period of time or be transferred to another office or retired, except by virtue of a judicial decision and for the reasons and in the manner prescribed by law. Legislation may set age limits, upon reaching which judges appointed for life are retired. In the event of a change in the order of the courts or their districts, judges may be transferred to another court or removed from office, but only on condition that they retain their full salary.”
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