The Governments of Europe

by Frederic Austin Ogg

420. General Aspects.—The provisions of the Statuto respecting the administration of justice are brief and general. Justice, it is declared, emanates from the king and is administered in his name by the judges whom he appoints. These judges, after three years of service, are irremovable. Proceedings of courts in civil cases and hearings in criminal cases are required to be public. No one may be withdrawn from his ordinary legal jurisdiction; and no modification may be introduced in respect to courts, tribunals, or judges, save by law.[559] On the basis of these principles there has been built up a system of tribunals which differs in but few important respects from the systems in operation in the other Latin countries of Europe. It consists, in part, of courts which have been carried over from the period preceding Italian unification and, in part, of courts which owe their existence to legislation subsequent to 1861. The model upon which the system has been developed is the judicial hierarchy of France, and it differs from this system in little save the existence, as will appear, of five largely independent courts of cassation instead of one.

421. The Ordinary Courts.—For purposes of justice the kingdom is divided into 1,535 mandamenti,[560] 162 tribunal districts, and 20 appellate court districts. Within each mandamento is a pretura, or magistracy, which exercises jurisdiction in civil cases and in cases of misdemeanors (contravvenzioni) and offenses (delitte) punishable by imprisonment not exceeding three months, or banishment not exceeding one year, or a fine not exceeding 1,000 lire. In minor civil cases, involving sums not in excess of 100 lire, jurisdiction is vested in justices of the peace (giudici conciliatori) who likewise, upon request, act as arbitrators in cases involving any amount. In each of thirteen of the largest towns there is a pretura which exercises penal jurisdiction exclusively. Next above the pretori stand the penal courts, one in each of the 162 tribunal districts. These exercise jurisdiction in the first instance in offenses involving a maximum imprisonment of ten years or a fine of more than 1,000 lire. To them appeal may be carried from the decisions of the pretori. Closely associated are the courts of assize, which possess original jurisdiction in cases involving a penalty of imprisonment for life, or for a period longer than a minimum of five, and a maximum of ten, years. Save when the Senate is constituted a high court of justice, these tribunals have exclusive jurisdiction of all press offenses and of all cases involving attacks upon the security of the state. As a rule, the courts of assize make use of the jury. From their decisions there is no appeal, save upon a point of form, and appeal lies solely to the court of cassation at Rome. From the penal tribunals appeal lies, in cases not dealt with by the assize courts, to the twenty courts of appeal.

At the top of the system stand five largely independent courts of cassation, located at the old capitals of Turin, Florence, Naples, Palermo, and Rome. Each of these exercises, within its own territory, final jurisdiction in all cases involving the ordinary civil law. The court of cassation at Rome, it is true, has been given exclusive jurisdiction in conflicts of competence between different courts, conflicts between the courts and the administrative authorities, the transfer of suits from one tribunal to another, writs of error in criminal cases, and a variety of other special matters. But, aside from this, the five tribunals are absolutely equal in function; there is no appeal from one to another, and the decisions arrived at by one do not constitute precedents which the others are obligated to recognize. One of the most striking aspects, indeed, of the Italian judicial system is its lack of centralization; though it should be added that the centralizing principle which, since 1870, has dominated so notably all other departments of the government has been gradually winning its way in the judiciary.

422. The Administrative Courts.—In Italy, as in continental countries generally, there is preserved a sharp distinction between public and private law; but the separation of functions of the ordinary and the administrative courts is much less clear-cut than in France and elsewhere. In 1865, indeed, the surviving administrative courts of the states which had been drawn into the kingdom, were abolished and it was arranged that the ordinary courts should exercise unrestricted jurisdiction in all criminal cases and in all civil cases in which, by the decision of the Council of State, a civil or political right was involved. The system worked poorly and by laws of June 2, 1889, and May 1, 1890, a special section of the Council of State (composed of a president and eight councillors named by the king) was set off to serve as an administrative court, while at the same time an inferior administrative jurisdiction was conferred upon the giunta (prefect and certain assistants) of the province. In practice to-day, when the legality of acts committed by the administrative officials is called in question, the ordinary courts exercise jurisdiction, if the question is one of private right; if it is one merely of private interest, it goes for decision to an administrative tribunal. In most continental countries all cases involving the legality of official acts fall within the domain of the administrative courts.[561]

V. Local Government

423. Historical Basis.—In her ancient territorial divisions Italy had once the basis of a natural and wholesomely decentralized system of local government. Instead of availing themselves of it, however, the founders of the present kingdom preferred to reduce the realm to a tabula rasa and to erect within it a wholly new and symmetrical hierarchy of territorial divisions and governmental organs. By a great statute of March 20, 1865, there was introduced in the kingdom a system of provincial and communal organization, the essentials of which were taken over in part from Belgium, but more largely from France. The functions and relations of the various local agencies were amplified and given substantially their present form in the law of December 30, 1888, supplemented and amended by acts of July 7, 1889, and July 11, 1894. So closely has the French model been adhered to throughout that the resemblance between the two systems amounts almost to duplication. The system of Italy calls, therefore, for no very extended independent description.

The units of local government are four in number—the province, the circondaro, the mandamento, and the commune. Of these, the first and last alone possess vitality, distinct interests, and some measure of autonomy; and throughout the entire series runs that same principle of thoroughgoing centralization which is the pre-eminent characteristic of the local governmental system of France. The circondaro, corresponding to the French arrondissement, is essentially an electoral division. Strictly, there are in the kingdom 197 circondarii; but 87 districts comprising the province of Mantua and the eight provinces of Venetia are, in all save name, circondarii also. The 1806 mandamenti, or cantons, are but subdivisions of the provinces for administrative purposes.

424. The Province: Prefect and Council.—There are in the kingdom 69 provinces, varying considerably in size but with an average population of 450,000 to 500,000. The Italian province corresponds closely to the French department. At its head is a prefect, appointed by the crown and directly responsible to the Minister of the Interior. Like the French prefect, the Italian is a political official, and the fact not merely influences his appointment but affects greatly his conduct in office. As representative and agent of the central government the prefect publishes and executes the laws, supervises the provincial administration, opens and closes sessions of the provincial council and sanctions or vetoes the measures of that body, and safeguards in general the interests of the Government in the province.

Within each province is a council of from 20 to 60 members, elected for a period of six years on a franchise somewhat broader than that which prevails in parliamentary elections. One-half of the membership is renewed triennially. The council meets regularly once each year, nominally for a month's session; but an extraordinary session may be convened at any time by the prefect, by the deputation, or upon call of one-third of the councillors. Aside from the voting of the provincial budget, the powers of the council are relatively meager. In part, e.g., in respect to the maintenance of highways, the control of secondary and technical education, and a share in the supervision of charity, they are obligatory; in part they are merely permissive. A deputation, or commission, of from six to ten persons, elected by the council from its own membership, represents the council in the intervals between its sittings and carries on the work which it may have in hand. The prefect is advised by a prefectorial council of three members appointed by the Government, and he is further assisted by a giunta of six members, four of whom are elected by the provincial council, the other two being drawn from the prefectorial council. It is the business of the giunta to assist the prefect and sub-prefects in the supervision of local administration and to serve as a tribunal for the trial of cases arising under the administrative law. The prefect and the giunta possess large, and to a considerable degree, discretionary powers of control over the proceedings of the council; and the prefect, representing as he does the central government exclusively, can be called to account only by his superiors at Rome.

425. The Commune: Syndic and Council.—As in France, the commune is the least artificial and the most vigorous of the local governmental units. In June, 1911, there were in Italy a total of 8,323 communes, besides four boroughs in Sardinia not included in the communal organization. Each commune has a council of from 15 to 80 members, according to its population, elected for a period of six years, one-half retiring every three years. The communal franchise is appreciably broader than the parliamentary. It extends to all Italian citizens twenty-one years of age who can read and write, provided they are on the parliamentary list, or pay any direct annual contribution to the commune, or comply with various other very easy conditions. The council holds two regular sessions a year, though in the large towns it, in point of fact, meets much more frequently. Between sittings its work is carried on by a giunta, which serves as a committee to execute the resolutions of the council and to draft its budget and by-laws. The powers of the council are comprehensive. It is obligated to maintain streets, roads, and markets; to provide for elementary education; to make suitable arrangements for the relief of the poor, the registration of births and deaths, and of electors; to establish police regulations and prisons; and, under varying conditions, to attend to a wide variety of other matters. The range of its optional activities is almost boundless. The council may establish theatres, found museums, subsidize public amusements, and, indeed, go to almost any length in the regulation of local affairs and the expenditure of local funds.[562]