—Judicial function

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—Judicial function

—The judiciary is all State bodies to which is awarded jurisdiction power, namely, the power to preserve and implement the legal system of the State.

—This implementation is accomplished either by eliminating the State of uncertainty, in a controversial rapport: civil or administrative jurisdiction; or is replacing the legal order violated: criminal jurisdiction.

—One of the features/structures of the modern State is to have distinct judicial function from the executive and attributed to distinct organs, unlike what happened in absolute States, in which the two functions were carried out by the executive bodies.

—As regards to the preposition of the judiciary organs, there are two different legal systems: the election and the appointment.

—The system of elective judges is adopted in Switzerland, Russia and the United States of America: voters are citizens of the College, where the judge performs functions and are eligible only citizens who have certain conditions of age, legal culture, capacity etc.

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—The system of appointment implies that the magistrate be appointed to his Office by an act of State, legislative bodies or Executive Directors, normally of the latter: in most States, the appointment emanates from the head of State on the proposal or, at least, with the participation of the Minister of Justice.

—The appointment is, however, surrounded by guarantees intended to exclude the intervention of organs of executive power: the aspirant to the nomination must have age conditions, morality and technical capacity established by law; These conditions must be screened by special commissions formed by magistrates in Office; the ranking of the candidates should be formed following the results of a rigorous competition; the commission's assessment of competition is absolutely binding on the organs of Government precedent to the appointment

—In modern States, the judiciary consists of a very large complex of courts whose competence is characterized by material (per materia), by value (per valore), for the land (per territorio) and for degree (per grado).

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—In all modern States there is the system that every contested relationship, both in the criminal and civilian, should be subjected to two or even three degrees of jurisdiction; the two first degrees are of merit and legitimacy, while the third degree is merely to legality.

—The organs of the courts are either acting alone or in College; as a rule, inferior judges are acting alone (like district courts and regional courts etc);. Collegial organs are acting in college and are superiors (like the Supreme Court, Appeal)'

—The main duty of the Judiciary is to implement the law, that is, to judge by following, the provisions of law;

—It is said then that, the Court interprets the rule, but does not create the norms at the basis of his judgment

—It says so, the principle of legality, in respect of which, the magistrate depends on law but not by the organ made.

—The measures adopted by the courts (whether they are judgments-sentenza- or rulings-provvedimenti di altra natura-) should be motivated to give their recipients aware of their legal justification and provide means for their appeal.

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—The concern of modern States in the field of Justice is the independence of the judiciary organs from legislative and executive functions.

—In accordance with the principle of separation of powers, it is enshrined or protected (e’ sancita) a rule (una norma) according to which it is forbidden to Parliament to enact judicial proceedings or to take effect to judgments of the judiciary (togliere efficacia alle sentenze della magistratura) or to edit the device/means ( modificare il dispositivo) on the other hand, the judges cannot replace the legislators, and create laws themselves; they can only interpret and apply existing ones.

—The organs of the executive power, and the central bodies (gli organi centrali) and those of the peripheral ones (quelli periferici), cannot claim to disputes referred to the judicial authorities, interfere in judgments or disappointing/unsatisfactory them, when the public administration is part in a dispute.

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—Indeed, when in a dispute is part the public administration, and a judgment now passed in judged (ed una sentenza ormai passata in giudicato) order it to a certain behavior, the government must execute the judged.

—In all modern legal systems applies the principle of the subordination of public administration to the judgments of the ordinary judicial authority;

—The independence of the judiciary is assured by various prerogatives which refer to the judicial body both in its complex, and in its individual components.

The prerogatives of the first kind concern (judicial body its complex):

a) -the inviolability of the organ: any attempt on the life, integrity/honor, the prestige/respect of the judiciary components, committed (commesso a causa) or damage ( a danno  dell’esercizio delle loro funzione) due to the exercise of their functions, is punished as a serious crime;

—b) –immunity of the seat: so, the police cannot get into the room where the court exercises its powers except at the request of the authority 'judicial same;

—c) -autonomy of the function: which not only allows the judge to adjust the hearing (regolare l’udienza) and the conduct of trials, regardless of any external interference, but also to be immune to orders, instructions, interventions of any kind of the courts themselves;

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—The main function performed by the courts is the maintenance and implementation of the legal system of the State.

—Mostly this function is carried out by the courts by applying the rule to the abstract disputed relationship, both criminal and civil matters, and issuing a final decision, the judgment (sentenza).

—The judicial function not only emanates from organs of the ordinary courts, albeit by way of exception (sia pure in via di eccezione) , judicial office also compete to organs of legislative power (eg., The Legislative Chamber sitting as High Court of Justice to try the offenses ministerial), and more still to bodies of executive power (eg., the authorities of judicial administrative (le autorita’ giurisdizionali amministrative), tax jurisdictions (le giurisdizioni tributarie etc.).

—It relates well to the judicial function the function of the prosecutor: this function is to promote the practical implementation of the law, penal processes and, also, in some civil cases, in order to realize the legal order (al fine di realizzare l’ordine giuridico) in the interest of the whole community '. The activity 'of the public prosecutor is part of the executive function and not in the judiciary; but as this function is performed by judges, appointed to that office and mostly covered all or part of the guarantee of unrestrainable' and immovability/fixedness of the judges, it is included in the judicial functions

—In some jurisdictions, some courts have the power not only to emit the decisions, but also to provide opinions at the request of organs or agencies e.g. , the opinion on the interpretation of a constitutional norm issued, at the request of the government, by a constitutional court.

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