judicial activity in the absence of "potestas iudicandi" that produces the absolute invalidity of the proceedings, which extends to the decision by March 8 Civil Cassation, sez. II, Case No. 4410
23/02/2011 Supreme Court
SECTION II CIVIL
Judgement of 3 February to 23 February 2011, No 4410
(President Triola - Rapporteur Carrato)
Conduct of case
Following appeal against the injunction n. 98/2003 proposed by VS against TM (registered at NRG729/2003), the magistrate of Rovigo, in sentence no 139, 2005 (filed February 21, 2005) stipulated under Article. 113, paragraph 2, Code of Civil Procedure, the opponent must pay on the contrary (such as creditor ingiungente) the sum of Euro 450.00, the balance for the purchase of a security door installed on September 5, 1996, partially offsetting the costs.
against the above sentence, which was served June 9, 2005, appealed to the Supreme TM (notified July 4, 2005 and filed July 21, 2005) based on a single plea of \u200b\u200bdeduction of the absolute lack of judicial authority, on the assumption that the magistrate who had investigated and decided the dispute, dr. G.. M. , After taking possession in the first appointment on April 3, 2000 (under Decree 27 March 2000), decaying to exercise his duties April 3, 2004, only to be subsequently confirmed in the same April 26, 2004 (by virtue of Ministerial Decree of 21 April 2004), had continued to unlawfully exercise its functions even in the time interval between 3 April 2004 and April 26, 2004, proceeding in the prosecution of the case which education the decision under appeal and, in particular, holding the hearing on April 5, 2004 during which it had rejected a request for relief of the defender of T. for the production of documents. As with much, asking the Court to declare null and void the entire proceeding No 729/2003 and, consequently, also declares void or annul the contested decision. The VS do not notice it is at this time.
Reasons Decision
1. With the only reason given to the applicant - to be deduced as shown also by the narrative - has raised the vice of nullity of the proceedings (in writing to the NRG 729 / '03) celebratio before the magistrate of Rovigo, dr. G.. M. And the consequent invalidity of the sentence handed down to his lack of success for the "potestas iudicandi" head in the same court in the time interval - during which he continued to practice the courts (taking issue with the hearing of judicial proceedings involving the non-acceptance of demands made in the interest of the applicant) - elapsed between the end of his first four-year term (April 3, 2004) and the beginning year (April 26, 2004) of the judicial office for the second term for which he was re-elected.
1.1. The reason (also cited in relation to art. 161, paragraph 1, Code and eligible to be considered even though filed against ruling of the magistrate issued an equitable basis, pursuant to paragraph 2 of art. 113 of the CPC, in the previous regime changes in legislative decree no. February 2, 2006, No. 40, since the introduction of a defect on the case: see, for all, Cass., ON, January 14, 2009, No. 564, and Cass., sect. II , May 13, 2010, No. 11638), is unfounded and must therefore be upheld and the ruling of the cassation appeal.
1.2. First, should precede the illustration of some considerations on the regulation regulated directions regarding the figure and the "status" of the justice of the peace.
The primary legal framework concerning the procedure for the appointment and confirmation of justices of the peace is established in Articles. 4a, 5 and 7 of the Law of 21 November 1991, n. 374, as well as art. 20 of the Law of 13 February 2001, n. 48, related to the extraordinary one-time confirmation. These legislative provisions (which must be added to additional sources of secondary importance, as the circulars of the Supreme Council of Magistracy, cf. Eg., On the subject, the circular CSM July 30, 2002) outline the procedural path to detect the substantive requirements che devono essere posseduti dagli aspiranti alla nomina ed alla conferma. In particolare, il procedimento di conferma risulta essenzialmente strutturato nei seguenti passaggi:
1) domanda dell'aspirante alla conferma;
2) acquisizione del giudizio di idoneità all'esercizio delle funzioni reso dal Consiglio Giudiziario in composizione integrata;
3) deliberazione del C.S.M., costitutiva dell'effetto giuridico e vincolante rispetto al successivo decreto ministeriale (cfr. Cons. Stato, sez. IV, 22 marzo 2005, n. 1144; Cons. Stato, sez. III, 24 agosto 2004, n. 8480);
4) decreto del Ministro della Giustizia, che esterna la volontà provvedimentale del C.S.M. in materia di status of judges. In this regard it is noted that, even today, the appointment and confirmation of justices of the peace as honorary judges compete, indeed, to the Minister pursuant to art. 4 bis, paragraph 1, of Law 374, 1991 (see Cons. State, sect. IV, November 6, 2007, n. 5729).
With regard to personnel requirements, the legal framework that provides for usage: 1) the candidate, not only in the election but also the confirmation, possesses qualities of independence, balance and prestige derived from these legal and cultural experience make him worthy to perform the functions of court fees (see, Cons. State, sec. Ili, January 23, 2001, n. 2073);
2) these skills are assessed primarily by the CSM attraverso l'acquisizione dei pareri redatti dai capi degli uffici di Tribunale e di Procura, nonché dal Coordinatore dei giudici di pace;
3) l'idoneità alle funzioni, requisito necessario autonomo ai fini della conferma, sia oggetto specifico del parere reso dal Consiglio giudiziario e venga accertato sulla scorta dell'esame a campione delle sentenze e dei verbali d'udienza, nonché della quantità statistica del lavoro svolto.
L'art. 5, comma 3, della citata legge n. 374/1991 specifica che la nomina deve in particolare cadere "su persone capaci di assolvere degnamente per l'indipendenza e prestigio acquisito...le funzioni di magistrato onorario". Da tale contesto può, quindi, desumersi che anche independence and prestige of office are numbered among its requirements for the appointment of honorary judges, constituting a feature essential for those who exercise judicial functions, and not being able to shrink those requirements to the subjects listed in paragraph 1 of the same rule ( relating to the possession of Italian nationality and qualifications, lack of criminal history, the physical and mental fitness to hold between the ages of 30 and 70 years, cessation of employment of any employee, possession of certificate of competency to practice law, not special exceptions) (see Cons. State, sect. IV, July 16, 2007, n. 4017).
Just because the assessment of the merits of the CSM to direct injection or confirmation in his role as justice of the peace is not limited to the establishment of formal requirements, but it's just once, on the basis of a wide discretion to investigate the ability of candidate, the degree of independence and prestige, as well as its professional preparation, it is objectionable only to the extent of ab externo manifest abnormal and illogical as well as the misrepresentation of the facts (see Cons. State, sect. IV, 28 January 2008 , No. 270).
Under the Administrative Court has also clarified that the council refused to confirm in his role as peace has not, however, disciplinary nature, and can, therefore, apart from verification of subjective culpability of specific adverse events attributed to the person (see Cons. State, sect. IV, 14 April 2006, n. 2126; Cons. State, sec. III, 23 January 2001, n. 2073). Having to institutionally prevent any situation detrimental to the function to be given, the CSM can therefore take account of any element that could result in actual adverse effect on the image of the magistrate honor: in this perspective, the denial of confirmation, therefore, does not require proof of full ' been compromised well protected, since this tool can also be used when the prestige of the Office is only jeopardized.
As with the given arguments show that the measure of confirmation in his role as justice of the peace can not be reduced to a mere acknowledgment of the existence of the original appointment and the simple acknowledgment of service and lack of any obstacles to continuing the engagement, by contrast, is confirmed in the final act of a whole new procedure paraconcorsuale (see, in this sense, Cons. State, sect. IV, 29 January 2008, No 270, cit.), which has no connection with the original nomination, and does not constitute, therefore, to continue, subject to the priority given by law to examine applications of the aspirants to the same confirmation (and therefore the new entrustment) than those who could not boast a previous post in place. Although the justices of the peace confirmed continue to play without apparent interruption of their functions at the same locations, they are obliged to submit applications for re-appointment and are - as highlighted - subject every time a re-evaluation about the possession of the mentioned subjective and objective requirements of Article 5 of the Law of 21 November 1991 (see Cons. State, sect. IV, July 12, 2007, n. 3970). In substance, the justice of the peace lasts four years but, after four years, has the right to request to be maintained for a similar period. At the end of secondo quadriennio egli può ancora essere confermato per un ultimo quadriennio, sicché la durata ordinaria massima dell'incarico si può protrarre per dodici anni. A tal fine, il giudice di pace è tenuto a presentare, almeno sei mesi prima della scadenza dell'incarico quadriennale, domanda di conferma diretta al C.S.M. e al Presidente della Corte di appello nel cui Distretto è compreso l'ufficio per il quale la conferma è richiesta. Durante l'esame dell'istanza la sede dell'aspirante alla conferma non si considera affatto vacante, così spiegandosi la disposizione contenuta in apposita circolare del C.S.M. (del 1 agosto 2002, n. P-15880/2002) secondo la quale le domande di conferma devono essere valutate con priorità rispetto applications for admission to the training and transfer to another office.
Asked follows a period of investigation by the Judicial Council district, the outcome of which the body makes the same opinion and forward it to the MSM, which occurs, depending on the confirmation, the permanence of the basic requirements needed to produce the appointment. In the event of a positive finding, the measure of confirmation, made by the plenum of the CSM is incorporated in the decree of the Minister of Justice. There may be, is not uncommon for pathological and delays in the process of confirmation, a break between the end of a four-year period and the beginning of the next. In such cases, if this procedural path ends favorably the magistrate, he remains in the right to exercise in full four-year, so the calculation is made for the new period from the date of taking possession of his new ministerial decree on the basis of confirmation - as previously pointed out - take effect constituent in relation to the continuation of the engagement. It follows that the interval between a four and one, pending the confirmation process must be regarded as unlawful the exercise of any activity by the judicial magistrate has not occurred until the new release for possession on Commons intervening issuance of the aforementioned Ministerial Decree (which can not recognize any effect retroactive).
1.3. In the light of the foregoing considerations, overall, it is indisputable that the dr. M. - As an assignee of the justice of the peace process to which this appeal the ruling, the first four-year appointment expired April 3, 2004 and had re-entered for the second term, in its capacity (in the same office) April 26, 2004 under the ministerial decree of confirmation of the April 21, 2004 (as inferred from statements obtained from the Administrative Office and the Office of the President of the Court of Rovigo) - has exercised, without the necessary endowment of its function, the 'judicial activity during the interval between the end of the first four and the beginning of the second, celebrating, in particular, the hearing on April 5, 2004, which was not limited to a mere postponement of the hearing, but had done so on specific instances of inquiry of the parties , including a request (rejecting) of the appellant to obtain a referral in accordance with art. 184 bis cpc, applicable at that time.
so doing (which, therefore, refrain from exercising judicial functions pending reappointed and taking possession of the new office, during which the judge should have informed the coordinator of peace - or even a competent President the Court - Of that fact in adopting any measures of organizational role assigned to him), dr. M. judicial review has worked in the real sense of ownership of the inherent defect in function, thereby engaging in an activity affected by a type extraformale absolute nullity. In other words, the exercise of the function in total lack of judicial authority has determined the configuration of a radical nullity of the proceedings from the moment when the business case was conducted "on non judice", as such inappropriate "ex if" to achieve the purpose and rilevatale office, as well as being deductible as a ground for appeal (as is, in fact, occurred in the specific case). The void - it (see, eg. Cass., ON, March 17, 2004, No. 5414, on the hypothesis of participation in the decision of a magistrate without the "potestas iudicandi" on account of its quality or appointment) , in terms of legal status, to that arising from the establishment of the court (under Article. 158 CCP), as due to the lack of a requirement of existence of the power exercised (the accused, indeed, to persons who lack legitimacy according to the functional ' judiciary and, therefore, temporarily outside it) - is, therefore, classify in the category of invalidity extraformali absolute and incurable (except judges). It applies the principle of the extension of Article. 159, paragraph 1, Code of Civil Procedure (see, for references, Cass., Sec. III, December 3, 2007, No. 25185) reported to the subsequent acts and employees, so even the sentence, as a measure affected by nullity derived as a result of assumed business case must be considered flawed which are inextricably linked and on which the decision itself was based on the definition of the dispute, without, therefore, that play no role in the fact that the magistrate, when he had to issue the decision itself, it was again placed in the exercise of judicial office as a result of supervening confirmed in the for the next four years.
1.4. Ultimately, depending on the reasons set out (and the rule of law under which enucleation the magistrate holding the judicial office after the expiry of the mandate pending the confirmation of the first new release for possession for the performance of the next assignment could be the lack of judicial activity "potestas iudicandi" that produces the absolute invalidity of the proceedings, which extends to the decision result), we must reach the acceptance of the application, hence the decision under appeal with the Supreme referral to the office of justice of the peace of Rovigo, in the person of another magistrate, who will anche sulle spese del presente giudizio.
P.Q.M.
La Corte accoglie il ricorso e rinvia, anche per le spese del presente giudizio, al Giudice di pace di Rovigo, in persona di altro magistrato.
