The Court in the"bad palace" - Corte Suprema di Cassazione in Rome

Photograph by Sergio D’Afflitto, CC BY-SA 3.0 it, https://commons.wikimedia.org/w/index.php?curid=16021795

Based heavily on the French legal system’s approach, Italy, also a civil law system, has different court hierarchies for ordinary (civil and criminal) and administrative (actions brought against the executive branch of the Italian government) matters, as well as a separate Constitutional Court.

As you will see on our visit to the Court of Cassazione, this court’s building is a magnificent palace in the Prati district of Rome. The building is nicknamed the palazzaccio. It was constructed over a period of 22 years, starting in the late 19th century. This period in history was a Roman building boom because Rome had recently become the capital of Italy.

The word cassazione means breaking. The appeal in cassation, whether civil or criminal, can be errors of law or procedure in a judgment, or against the grounds for jurisidiction. The Court of Cassazione can quash the decision of a lower court judge and also state the principles of law that must be observed by lower courts. The Court of Cassazione does not ordinarily adjudicate facts but determines whether the judges of the Italian courts of first instance and the courts of appeal have correctly applied the law. A centrally important myth of both the French and Italian legal systems is that judges simply apply the codes; they do not make law, and hence there is no doctrine of stare decisis. The modern reality does not always accord with this myth because there are, in reality, lacunae in the codes. In practice many Court of Cassazione decisions have persuasive weight as jurisprudence constant, though they are not binding on other courts.

Most appeals to the Court of Cassazione come from second-tier courts of appeals but it is possible to appeal directly from first instance courts. Art. 111 of the Italian constitution gives very broad rights of appeal against all sentences and measures affecting personal freedom pronounced by ordinary and special courts. There have been some calls for amendment to this constitutional provision on the grounds that the Court of Cassazione must hear more appeals than is reasonable. The situation is in stark contrast to the quite small number of cases heard by the United States Supreme Court each year.

A significant function of the Court of Cassazione is to ensure the uniform and correct application of Italian law. This concern is a legacy of the French system, which developed its own Cour de Cassation at the time of the French Revolution because of revolutionary concerns about the lack of uniformity in the French courts of the ancien regime.

Because the Court of Cassazione’s building is so close to the Tiber River, it has suffered subsidence problems that have given rise to major restoration efforts. The nickname palazzaccio is not a compliment. It uses a derogatory suffix to mean “bad palace” and refers to suspicions of corruption around the time it was built.

In legal systems like the Italian and French that have multiple vertical hierarchies of courts, there can be an issue as to which court has jurisdiction in a particular case. Unlike the French system which has a specialized Tribunal des Conflits to resolve such jurisdictional conflicts, the Italian Court of Cassazione has the power to determine which court, e.g. ordinary, administrative, or fiscal, has jurisdiction to hear a particular case.

There are over 350 justices of the Court of Cassazione. There is a chief justice (Dott. Pietro Curzio, a judge and noted labor law scholar), a deputy president, over 50 judges who preside over the various divisions (there are 6 civil and 7 criminal divisions), and over 280 Supreme Court judges. There are also around 30 judges from lower courts who serve as supporting judges of the Court of Cassazione.

A bench consists of 5 justices, including a presiding judge. 9 justice panels, including a presiding judge, decide cases about disputes over jurisdiction or cases involving a different interpretation of the law where the law has been settled, or cases involving discipline of justices, public prosecutors or lawyers.

There is a General Prosecution Office next to the court which provides opinions on civil and criminal law to the Court of Cassazione.

The Italian Constitution states at article 104 that the judiciary is an independent branch of government from the legislative and executive. The judiciary is also an autonomous branch of government: judges are appointed and disciplined by the judicial branch. Judges and prosecutors are part of the same branch of the profession (as in France) and supervised by the Consiglio Superiore della Magistratura. Most judges do not become judges after a distinguished career as an advocate, but, because the role of a judge is seen as quite different from the work of an advocate, judges start working as judges at a young age and are promoted to higher courts based on their work as judges. This is a common approach in other civil law systems including France and Poland.

Entry to the Italian judicial profession generally requires being an Italian citizen between the age of 21-30, a law school graduate, doing very well in difficult examinations, and having an unblemished moral reputation.

To be a judge of the Court of Cassazione requires at least 16 years of seniority as a judge or being a university professor or lawyer with at least 15 years of practice and registration to practice before the higher courts. No more than one tenth of the justices if the Court of Cassazione can be lawyers/university professors. The Consiglio Superiore della Magistratura is in charge of the selection process and its Evaluation Committee draws up a list of candidates, taking into account seniority, professional competence and publications. The High Council for the Judiciary considers the list and appoint the counsellors. Court of Cassazione judges do not have the celebrity of American Supreme Court justices and their names do not appear on the Court of Cassazione’s website.