We start from the comparison of the proposals and regulations.
proposed
Article 1 Amendment of the Constitution art.87
Article 87 of the Constitution, the tenth paragraph after the word "courts" are added following: "Judges and the Superior Council of Magistracy prosecutor."
existing
(about the President) chairs the Higher Judicial Council.
Comment: E 'consequential to the proposed establishment of two councils for the two careers in the judiciary and prosecutor.
proposed
Article 2 amends Title IV of the Constitution
1. Title IV of the Constitution takes the following headings: 'Justice';
2. Section I of Title IV of the Constitution takes the following name: "The bodies'
3. Section II of Title IV of the Constitution takes the following headings: "The jurisdiction."
existing
TITLE IV THE JUDICIARY The Judiciary Section
Section II Rules on Jurisdiction
Comment : Given that the names were already sufficiently clear, I completely beyond the point of this change. So I think that does not unnecessarily change the Constitution a meaning and there will be consequences. Who knows how to tell her.
proposed
Article 3 amends Article. 101 of the Constitution
1. The second paragraph of Article .101 of the Constitution reads as follows: "The courts constitute an autonomous and independent of all power and shall be subject only to the law."
existing
Article 101. Justice is administered in the name of the people. Judges are subject only to the law.
Comment: disappears the concept that justice is administered in the name of the people. Then in the name of who will be administered? I like the most current.
proposal
Art amending Article 4. 102 of the Constitution
1. The first paragraph of Article. 102 of the Constitution reads as follows:
"The jurisdiction is exercised by ordinary courts are established and governed by rules of court."
existing
Article 102. The judicial function is exercised by ordinary magistrates empowered and regulated by rules of court. May not be established extraordinary judges or specialized courts. They can only be hosted ordinary judicial bodies specialized sections for specific matters with the participation of qualified citizens to foreign courts.
The law regulates the cases and forms of direct participation of the people in the administration of justice.
C omment : related to the separation of careers between judges and prosecutors.
proposal
Art 5 New Art. 104 of the Constitution
1. Article 104 of the Constitution reads as follows:
"104. Judges are distinguished judges and prosecutors. The law ensures the separation of the careers of judges and prosecutors. The office the prosecutor is organized according to the rules of the judicial system that ensures the autonomy and independence.. "
existing
Article 104. The judiciary is an autonomous and independent of all other powers.
The Superior Council of Magistracy is presided by the President of the Republic.
Members by law, the first president and the attorney general of the Supreme Court.
The other members are elected for two-thirds of all the ordinary judges belonging to the various categories, and one third by Parliament in joint session from among full professors of universities in the field law and lawyers with fifteen years of practice.
The Council shall elect a vice chairman from among the members appointed by Parliament.
Elected members of the Council remain in office for four years and are not immediately re-elected.
may not, while in office, be registered in professional rolls, nor serve in Parliament or a regional council.
C omment : the differences seem related to the change later.
proposal
New Article Article 6. 104-bis of the Constitution.
after Article 104 of the Constitution is included the following: "104-bis. The High Council of judiciary is chaired by the President of the Republic. It is part of the right first president of the Supreme Court. The other members are elected by all ordinary courts in the middle between the same type of eligible candidates after the draw and half
by Parliament in joint session from among university professors in law and lawyers with fifteen years of operation. The Council shall elect a chair from among the members
designated by Parliament. Elected members of the Council remain in office for four years and are not re-elected. They may not, while in office, be registered in professional rolls, nor serve in Parliament or a regional council, provincial or municipal level.. "
proposal
New Article Section 7. 104-b of the Constitution
after Article 104-bis of the Constitution is included the following:
"104-b. The Superior Council of Magistracy prosecutor is chaired by the President. It is part of law the attorney general of the Supreme Court. The other members are elected by all the prosecutors half among those who belong to the same category
after the draw of the candidates, half by the Parliament in joint session from among university professors in law and lawyers with fifteen years of operation. The Council shall elect a chair from among the members appointed by Parliament. Elected members of the Council remain in office for four years and are not re-elected. They may not, while in office, be registered in professional rolls, nor serve in Parliament or a regional council, provincial or municipal level. "
proposal
New Article Article 8. 105 of the Constitution Article 105 of the Constitution is replaced by
following: 105. The High Council of the judiciary and prosecutor at the Supreme Judicial Council, under the rules of the judiciary, recruitment, assignments, transfers and promotions in respect of the ordinary courts and prosecutors. The Councils can not adopt a measure of political orientation, nor perform any functions other than those provided for in the Constitution. "
existing
Article 105. The High Council of Magistracy, under the rules of the judicial system, recruitment, assignments and transfers, promotions and disciplinary measures for judges.
C omment Here, too, changes related to the separation. Repetition of a concept then obvious. If by "political" is any opinion even on technical standards in the pipeline. I do not like.
proposal
Art New Article 9. 105 bis of the Constitution
1. After Article 105 of the Constitution is included the following:
"105-bis. The disciplinary measures for judges for the Court of discipline of the judiciary and prosecutor. The Court of discipline consists of a section for
judges and a section for prosecutors. The components in each section are elected by Parliament in joint session half and half, respectively, of all the judges and prosecutors. The members elected by Parliament are chosen from among university professors in law and lawyers with fifteen years of operation. The members elected by the judges and prosecutors are selected after the draw of the candidates, including those in the respective categories.
The Court of discipline among the members shall elect a chairman appointed by Parliament and each
Section shall elect a chair from among the members appointed by Parliament. The members of the Disciplinary Court shall hold office for four years and are not re-elected. They may not, while in office, be registered as professional rolls, nor hold public office. The law ensures the autonomy and independence of the Court discipline and the principle of due process in carrying out its activities. Against the measures taken by the Court of discipline may be challenged in the Supreme Court on legal grounds.. "
proposal
Art amendment, Article 10. 106 of the Constitution
1. In the second paragraph of Article. 106 of the Constitution the words "for all functions by single judges" shall be deleted.
existing
Article 106. The appointment of judges for the competition take place.
The law allows the appointment of the judiciary, even by election, of honorary judges for all functions by single judges. On appointment of the Supreme Judicial Council may be called to the office of Supreme council for their outstanding merits, college professors in law and lawyers with fifteen years of practice and registered in special books for the higher courts.
C omment: being included in the prosecutors, judges, including what it means that someone may appoint prosecutors and fees? Before you appoint only judges.
proposal
Article 11 Amendment art. 107 of the Constitution Article 107 of the Constitution are made
the following modifications: a) in the first paragraph, the words "the Supreme Judicial Council" shall be replaced by "of Councils for the judiciary and prosecutor;
b) in the first paragraph shall be added in the end the following sentence: "In case of exceptional needs, identified by law, relating to the organization and operation of services relating to the Councils for Justice may assign judges to other courts." .
existing
Article 107. The magistrates are irremovable. Can not be dismissed or removed from office or assigned to other courts or functions unless following a decision of the Supreme Judicial Council, adopted or for reasons of defense and with the guarantees laid down by the judiciary or with their consent.
The Minister of Justice has the power to take disciplinary action.
Judges are distinguished only by their different functions.
The public prosecutor enjoys the guarantees established in his favor by the rules of the judiciary.
C omment: linked to the division of careers. Added noma transfer.
proposal
Article 12 replaces Article.
109 of the Constitution Article 109 of the Constitution reads as follows: "109. The judge and the prosecutor have the police in the manner prescribed by law.. "
existing
Article 109. The court has directly by police.
C omment: the force is simple, clear and great warranty. The proposal refers to a law that may disturb. Because it guarantees that are now in the constitution could be changed monthly with a law. I see it.
proposal
Article 13 replaces Article. 110 of the Constitution
1. Article 110 of the Constitution reads as follows:
"110. Without the powers of Councils for the judiciary and prosecutor, the Minister of Justice, the inspection function, organization and operation of the services involved with justice. The Minister of Justice shall report annually to the Houses on the state of justice, concerning the prosecution and the use of means of investigation. "
existing
Article 110. Without the powers of the High Council of the Judiciary, the Minister of Justice, the organization and operation of the services involved with justice.
C omment: enters the responsibility of the Minister "means the use of investigation. What does it mean that the minister will ask for report to be informed about methods of investigation? Not good.
proposed amending Article 14 Article.
In Article 111 of the Constitution. 111 of the Constitution after the eighth paragraph, the following:
"against the judgments of conviction are always allowed the appeal, unless the law provides otherwise in relation to the nature of the offense and penalties and the decision. Acquittals can be appealed only in cases provided by law.. "
Article 111. Jurisdiction is implemented through due process regulated by law.
Each process takes place in between the parties, on an equal footing, before an independent and impartial court. The law provides for the reasonable duration.
In a criminal trial, the law provides that the person accused of a crime is, in the shortest possible time, confidentially informed of the nature and cause of the against him, has the time and conditions needed to prepare his defense, have the authority, the courts, to examine or have examined, the people who make statements against him, to obtain the attendance and examination of persons on their behalf under the same conditions as the prosecution and the acquisition of any other evidence in its favor, to be assisted by an interpreter if he can not understand or speak the language used in the process.
The criminal trial is governed by the rule that the parties in the formation of the test. The guilt of the accused can not be established on the basis of statements made by those who, by choice, it is always voluntarily avoided by the accused or his counsel.
The law regulates the cases in which the formation of contradictory evidence does not occur in the consent of the defendant or proven impossibility of an objective nature or effect of proven misconduct.
All judicial decisions must be justified.
against sentences and against measures on personal freedom pronounced by ordinary courts or special, it is always possible to appeal to the Supreme Court for violation of the law.
You can waive this rule only to the judgments of military courts in wartime.
against decisions of the State Council and the Court of Appeal in the accounts Appeal is permitted only for reasons of jurisdiction.
C omment: the miscarriage of justice also applies in case of acquittal of an accused. This is not to be absolutely fine.
proposal
New Article Article 15.
112 of the Constitution Article 112 of the Constitution reads as follows: "Article 112. - The office of the prosecutor
the obligation to prosecute under the criteria established by law.. "
existing
Article 112.
The public prosecutor has the obligation to prosecute.
C omment: even here the certainty of an obligation under the constitution is left to the usual law that any majority of members can buy to change.
proposal
New Section II Article 16-bis of Title IV liability of judges
In Title IV of Part II of the Constitution after the Section II, the following is inserted: "Section II-bis" Responsibility for magistrates' 113-bis. Judges are
directly responsible for acts committed in violation of the equal rights of other officials and employees of the State.
The law specifically governing the civil liability of judges for cases of wrongful imprisonment and other unwarranted restriction of personal freedom. The civil liability of magistrates extends to the State. "
C omment: is a clear rule that tends to affect the role of the magistrate. The rules of discipline are already in force. This is different. On this subject see the need for a large and serious debate.
proposal
Entry into force of the Reformation and its effect on pending proceedings
Article 17 1. The principles of this Constitutional Law shall not apply to criminal proceedings at the date of its entry into force.
Article 18 1. This Constitutional Act shall enter into force on the day following its publication in the Official Gazette of the Republic.
Final Comment:
do not see a single article that could lead to changes in the timing of processes.
do not see a single article that brings improvements to the organization of justice. Indeed liability rules could lead to new actions against judges for actions by the other party and thus increasing the number of cases.
An attempt to condition with ordinary laws principles and obligations laid down in the constitution. So a weakening of the rule of law.
Valerio Sichi
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