DRAFT CONSTITUTIONAL LAW OF SAN MARINO We the Captains Regent of the Most Serene Republic of San Marino Having regard to Article 4 of the Constitutional Law no.185 / 2005 and Article 6 of Qualified Law n.186 / 2005; Promulgate and publish the following Qualified Law approved by the Great and General Council at its meeting on 15 September 2011 with 47 votes in favor and 3 votes against: LAW QUALIFIED September 16 2011 Ranked # 2 NEW RULES ON JUDICIAL ORDER Art. 1 L ' Article 1 of the Qualified Law of 30 October 2003 n. 145 is amended as follows: "Art. 1 (Organization of the Court) The Court is internally divided, in relation to civil, criminal, administrative matters, the protection of children and the family, they are assigned to individual Commissioners of the Law by the Executive Magistrate. The judges of each role have the fullness of jurisdiction and therefore are freely exchangeable in the performance of duties and powers. The Appeals Judges can mutually replace one with the other in the event of incapacity or incompatibility of one of them. Substitutions are arranged according to predetermined criteria, established by the Judicial Council, in full respect of the principle of pre-establishes the Judge. Attorneys of the Treasury, in an equal position, are divided the work based on predetermined and shared criteria, inspired by the principles of equity and which will ensure the best efficiency for the rapidity of the proceedings; in case of disagreement such principles will be established by the Judicial Council, meeting in regular session. ". Art. 2 Article 2 of the Qualified Law 30 October 2003 n. 145 is amended as follows: "Art. 2 (Appointment and incompatibilities of judges) Magistrates are appointed after having completed the procedure laid down in Article 3, last paragraph, after passing a competition, or for transfer to higher judicial office. 2 Judges for the third instance, the Judges for extraordinary remedies and Judges for the action of civil responsibility of judges are appointed by the Judicial Council. The magistrates must demonstrate specific skills, objectivity and impartiality. engagement in the performance must always manifest sure doctrine and prudent balance and constantly keep un'irreprensibile civil and moral conduct. The Magistrate Office is incompatible with the assumption of positions and membership in political parties or movements or trade union membership, with the presentation of candidates in parliamentary and local elections, with the exercise of any trade or business, with the hiring of director and auditor in companies and, for Law Commissioners, the Prosecutor of the Treasury and to the Auditors, with the exercise of the profession and the hiring of additional offices and public or private employment is in the territory of Republic and abroad, excluding the post of lecturer, mutatis mutandis. The Magistrate Office of Appeals or above, is incompatible with the exercise of the profession in the territory of the Republic. And 'forbidden spouse, cohabiting partner and relatives and relatives up to the 3rd grade of Judges to exercise legal defense before the Single Court. The legal status of the Magistrate is governed by ordinary law. The pay treatment of Judges shall be determined by ordinary legislation. In accordance with article 4, paragraph 2, of the Declaration of the Rights of Citizens and Fundamental Principles of San Marino order, the citizens of San Marino is guaranteed the possibility of access to the judiciary. The magistrates assume the position by taking an oath in the hands of the Most Excellent Regency. ". Art. 3 Article 3 of the Qualified Law of 30 October 2003 n. 145 is amended as follows: "Art.3 (Recruiting of judges) Judges for the third instance and the Judges for extraordinary remedies, two in number for each office, and the six judges for the action of civil responsibility of magistrates, a holder and a deputy to every court, are appointed by the Judicial Council, by a majority of two thirds. The Appeals Judges are appointed following a special competition for forward securities at a Selection Committee composed of three members, one appointed chairman, appointed by the Judicial Council from among eminent personalities in the law, even external San Marino to the judiciary, which is among the Appellate Judges or above. They can not be part of the Commission members of the Bar and notaries, accountants and doctors
accountants of the Republic, the spouse, cohabiting partner, the relatives and relatives up to the 3rd degree of professional members of such systems. The Commissioners of the Law, the Prosecutor of the Treasury, the commissioner's auditors are appointed following a competitive examination, to be held by means of a written test and an oral interview, forward to a Selection Committee consisting of three members appointed by the Judicial Council of the clear personality fame in the law also external to the judiciary or the San Marino among the Appeal Judges and above, one as chairman. They can not be part of the Commission members in the Lawyers and notaries, accountants and accountants of the Republic, the spouse, cohabiting partner, the relatives and relatives up to the 3rd degree of members of such registers. The ranking formed as a result of the competitions, with the indication of the winners, is transmitted to the Great and General Council which shall take note. The rules for selection of candidates and the conduct of the test procedure are held, to the extent compatible with the present law, as provided by the Qualified Law May 4, 2009 # 1. 3 The start of the procedure for the appointment of Judges is required to the Great and General Council with a reasoned report by the Executive Magistrate upon advice of the Judicial Council. The Great and General Council took note of the request, acting by an absolute majority. The recruitment of new magistrates should be preferentially through internal career. Judges into permanent service who are appointed to higher functions are not subject to probation. ". Art. 4 Article 4 of the Qualified Law 30 October 2003 n. 145 is amended as follows: "Article 4. (Duration of appointments of judges) Judges for the third instance, the Judges for extraordinary remedies and Judges for the action of civil responsibility of judges are appointed for a term of five years and they can be renewed. The Appeals Judges, Commissioners of the Law, and auditors, after the appointment, subject to a probationary period of three years. II Judicial Council shall evaluate the activities carried out on the basis of a detailed report prepared by the Executive Magistrate and deliberates confirmation indefinitely or termination from office and shall inform the Great and General Council for the acknowledgment. The magistrates confirmed in indefinitely remain in service until the age of sixty-eight; this period may be extended for two years by the Judicial Council of the request in case of proven service requirements attested by a detailed report of the Chief Judge. The magistrates cease from office by resignation, forfeiture, waiver, or inclusion in public administration. The resignation of the Magistrate, which must be submitted in writing to the Regency, constitute a unilateral act, not recettizio and take effect immediately. As President of the Judicial Council, the Regency informed of the resignation, decadence or waived by a Magistrate the Great and General Council for their acknowledgment. The Law Commissioners who have exercised judicial office for at least ten years may ask, for serious personal and family reasons, to the Great and General Council to be included in the public service. The Great and General Council, after consultation with the Judicial Council and the State Congress, shall take a decision within three months of submission of the application. ". Art. 5 Article 5 of the Qualified Law of 30 October 2003 n. 145 is amended as follows: "Art. 5 (Requirements for appointment of judges) The two Judges for the third instance and the two Judges for extraordinary remedies are chosen among experts in law clear fame of having the minimum requirements for appellate judges, so that one has specific expertise in the civil and the other in criminal matters. Judges for civil liability of judges are chosen from among experts in law clear fame of having the minimum requirements for appellate judges. The competition is for Judge of Appeal in criminal matters, civil and administrative judges with at least the qualification of magistrate of appeal, or those who have acquired the status of an ordinary university professor of law and who have reached the forty-fifth year of age. 4 may be appointed Judges of Appeal, the Stewards of the law at least ten years of service. The acquired professional assessment is made by the Council
Judiciary in plenary session, at which the Chief Judge must submit a special report. The competition for the Law Commissioner judges and law graduates who have acquired the status of a university professor or as a result of competition are part of the university's teaching staff for legal matters, as well as lawyers who have practiced profession for at least six years. They may be appointed as the auditors of the Law Commissioners commissarial with at least four years of service. The assessment of the skills acquired is performed by the Judicial Council in plenary session, at which the Chief Judge must submit a special report. The competition is open to the Prosecutor of the Treasury lawyers who are at least thirty years of age and law graduates who have acquired the status of a university professor or as a result of competition are part of the university's teaching staff for legal matters . They may be appointed Prosecutor of the Treasury also the auditors commissarial with at least two years of service. The assessment of the skills acquired is performed by the Judicial Council in plenary session, at which the Chief Judge must submit a special report. The competition for Auditor Commissarial law graduates who have passed the qualifying examination to the profession and have not completed the thirty-sixth year of age. ". Art. 6 Article 6 of Qualified Law 30 October 2003 n. 145 is amended as follows: "Art. 6 (Judge of the Court Manager) The Chief Judge of the Court shall be appointed for a term of five years by the Judicial Council in plenary session from among the Law Commissioners with at least five years of service and Judges of Appeal confirmed in their office, or between Third Instance judges. The Judicial Council, in extraordinary circumstances where the administration of justice sector contingent manifest the need to make use of expertise and particular experience and specific, as the Manager may appoint an outside personality to the Judiciary of San Marino clear reputation and proven experience in the management of structures and judicial bodies, for periods defined by the judicial Council, also lower than five years. In this case, the manager performs only the tasks of organization of the Court and the judicial division of labor required by law. Apply to it all conditions, power, prerogatives, Guarantees and incompatibilities prescribed by law for the magistrates of the Republic. The wage treatment is fixed at that for the figure of the Law Commissioner, with the exception of special benefits. Executive Magistrate are attributed to organizational powers and the judicial work distribution according to predetermined criteria, as well as surveillance, without prejudice to the decision-making autonomy of each judge, coordination and supervision of the courts, apart from purely administrative functions. The Executive Magistrate shall ensure the attribution of the work to the Commissioners of the Law, to the Auditors commissioner, taking into account the acquired professionalism, experience, service and securities. It also ensures the establishment of criteria for the allocation of work between the Appeals Judges, in agreement with them. If it were not possible to reach this agreement, the division of labor will be ordered by the Judicial Council, meeting in regular session. 5 periodic reports to the Judicial Council about the proper completion of the work assigned to the magistrates, both in qualitative and quantitative terms, and shall propose the adoption of appropriate measures. The Commissioners of the Law, the Conciliators Judges and auditors commission offices are required to promptly and timely fulfill the office duties and to comply with the regulations issued by the Executive Magistrate; without prejudice to the incompatibilities provided by law, any other positions may be taken only in compliance with the Office and with the approval of the Judicial Council ordinary meeting needs. Any shortcomings or the loss of the requirements and professionalism referred to in article 2, paragraph 3 shall be reported to the Judicial Council in plenary session for the feedback and the necessary steps, which will be governed by a special ordinary law. The Executive Magistrate is held annually to submit to the Great and General Council, through the Secretary of State for Justice, the report on the state of justice,
including the reliefs on the judicial work of the judges in each grade. ". Art. 7 Article 7 of the Qualified Law of 30 October 2003 n. 145 is amended as follows: "Art. 7 (Judicial Council) The Judicial Council has a representative function and the judiciary guarantee. The Judicial Council shall meet in ordinary session and in plenary. The Judicial Council is composed of the ordinary meeting of the Law Commissioners, the Appeal Judges and Judges for the third instance. And 'it chaired by the Captains Regent, or, by delegation, by the Executive Magistrate. The Secretary of State for Justice attends the meetings without voting rights. The Judicial Council ordinary meeting approves the criteria for the allocation of powers laid down in Article 1, paragraphs 3 and 4, and Article 11, paragraph 6; It can activate the action of trade unions in the manner prescribed by the Constitutional Law; may make requests and give advice on the organization of the courts, examines general questions concerning the administration of justice, with the authority to make requests and give advice; It shall decide on any other matter relating to the organization of judicial work which is submitted by the Executive Magistrate or by the Secretary of State for Justice. The Judicial Council in plenary is composed of the members of the Council Commission for Justice Affairs, the Secretary of State for Justice, by the Judges for the Third Instance, by three Judges of Appeal, five Law Commissioners and the Executive Magistrate . The Law Commissioners and the three Appeals Judges are selected from among those confirmed indefinitely with greater seniority in the role; in the event of equal seniority prevails most registry seniority. The number of Judges must always be equal to that of the other components; if by reason of the requirements the number is less, the Council is integrated with the magistrates of same grade than the role in which there has been a lack, or, in the further defect, by the Law Commissioners, including temporary, identified according to the criterion of seniority greater role, or, in the case of equal seniority, by most registry seniority. And 'it chaired by the Captains Regent, or, in their absence by the President of the Council Commission for Justice Affairs. During the debate about the Magistrate's Annual Report Manager, participate, without vote, the President of the Order of Lawyers and Notaries. The Judicial Council shall meet in plenary session for all the resolutions set out in Article 3 of this law on procedures for the appointment of judges to the confirmations in his role under Article 4 of this Act, and for the designation of the Magistrate leadership; take the decisions referred to in Article 9 of this Act; 6 evaluates the professionalism acquired by the Magistrates in accordance with Article 5 of this Act; under constitutional law, it may temporarily suspend the judge subjected to action of the union and declare the forfeiture or relief in accordance with the decision of the Guarantors of the constitutionality of the rules; It receives and evaluates the annual report of the Chief Judge; It examines issues related to the relations between the judiciary and other state bodies with the authority to suggest guidelines and proposals; may, exceptionally, delays to the judges to issue rulings, decrees and judicial measures, in accordance with Article 2, paragraph 4, of Law 5 June 1923 n. 13; perform such other functions delegated to the Judicial Council by law not expressly mentioned among those for ordinary session. The Judicial Council shall meet in regular session at least twice a year, every six months, and in plenary session at least once a year to discuss the report of the Chief Judge; They can still be called ordinary or plenary sessions whenever necessary. In both meetings it shall be convened by the Captains Regent on their own initiative or at the request of the Secretary of State for Justice, the Executive Magistrate or at least one third of the members. For the validity of the constitution of the Judicial Council in both sessions you have always required the presence of at least half of the members. The resolutions shall be adopted by the affirmative vote of a majority of those present. The work of the Judicial Council sessions shall result from the minutes, drawn up by the secretary to be designated at the beginning of the session. In those minutes it will be sent a copy of the Order of Lawyers and Notaries.
In all cases of responsibility, incompatibility and unsuitability on individual magistrates, these must be heard in person or through a special agent, but can not participate in or attend the discussion and deliberations. Likewise, in case of nomination of judges for appointment to higher judicial role or confirmation in his role and in all cases that affect them they may not participate in the discussion and deliberation the judges concerned and the Judicial Council members who have been part the competition Committee on the appointment of the same. ". Art. 8 Article 8 of the Qualified Law 30 October 2003 n. 145 is amended as follows: "Art. 8 (Council Commission for Justice Affairs) The Council Committee for Justice Affairs consists of ten members, appointed by the Great and General Council at the beginning of each term with a majority not less than two-thirds. And 'he chaired and convened by the President, appointed by the Commission itself in its first session. It is part, in full, the Secretary of State for Justice. The Council Committee for Justice Affairs relates to all its activities only to the Great and General Council. The Commission may meet before the Judicial Council convening in plenary to discuss the matters on the agenda; at least one third of its members can activate the action of the union of judges in the manner prescribed by the Constitutional Law; examine the annual report of the Chief Judge; as a coordinating body, supervises the execution of the Judicial Council deliberations in plenary session to be submitted to the Great and General Council or where administrative measures must be adopted; exercise the powers provided by law. The Commission may require references to the Executive Magistrate, which can also be called for hearings. For the validity of the Commission's deliberations it requires the presence of at least half plus one of the members. Resolutions are adopted by an absolute majority. 7 can not be part of the Council Committee for Justice Affairs Board Members enrolled in the Lawyers and notaries, accountants and accountants. ". Art. 9 Article 10 of the Qualified Law of 30 October 2003 n. 145 is amended as follows: "Art. 10 (Exclusion and objection) The magistrate is obliged to abstain if there are serious reasons, determined by interest in the proceedings, kinship, marriage, living together without being married, affinity, friendship, enmity, economic or working between the same or a Magistrate his next of kin, and one of the parties or the advocates of these in civil or administrative judgments, or the person accused or suspect in custody or the injured party, or defenders of them during criminal proceedings. The magistrate is also required to refrain in the case he has made recommendations, advice, or in the exercise of functions and before it is pronounced judgment has improperly expressed its belief about the facts object of the process. In the cases referred to in the preceding paragraphs, if the Magistrate not to abstain, the parties may object. The Magistrate may also refrain when there are reasons of opportunity, sufficient information to suggest compromised his impartiality and serenity of judgment. the objection on the court is not allowed to take a decision on the challenge. In criminal proceedings it is not allowed the objection of the Attorney of the Treasury. Procedures relating to the abstention and disqualification of Judges shall be governed by a special ordinary law. The magistrate who fails to fulfill its obligation to refrain, where it fulfills certain and objective requirements in the context of the grounds provided for in this Article, shall be liable to measures governed by a special law. " Art. 10 (Transitional and coordination Standards) The role of the Administrative Judge of 1st degree and that of the Justice of the Peace are eliminated. From the entry into force of this law all the functions assigned by the rules and regulations in force, of whatever nature, those courts shall be transferred to the Law Commissioner. From the entry into force of this Act, the Administrative Judge of 1st Degree and the Justice of the Peace who also acts in the service of the Pro-Tax functions take in effect the role, functions and status of the Law Commissioner . For the 1st Degree Administrative Judge who has yet to get confirmation, the three-year period is computed from the assumption of the original functions. The Justice of the Peace who plays
Also the Pro-Tax service functions assumes in effect the role, functions and status of the Commissioner indefinitely Act and is not subject to confirmation. The Justice of the Peace who shall act as the Attorney of the Treasury currently in service functions cease the functions of Conciliator Judge and he accepts all legal and practical effects the role of the Attorney of the Treasury indefinitely. The Justice of the Peace retains the Pro-Tax functions until the appointment of the new Attorney of the Treasury. The auditors of the commissioner's currently in service may be appointed Law Commissioner and Attorney of the Treasury by the Judicial Council on the basis of the report of the Chief Judge. Observe the ordinary trial. The provision of Article 4, paragraph 2, concerning the trial period, only applies to magistrates to enter service after the approval of this law. 8 The provisions of Article 9 of this Act and those of the relevant procedural law shall also apply to proceedings; until the entry into force of the law on the procedure for the abstention and objection shall continue to apply the provisions of the Qualified Law 25 April 2003 n. 55. Art. 11 (Repeals) E 'repealed the decree March 2, 2006 n. 55. Are repealed all provisions contrary to this law. Art. 12 (Entry into force) This Law shall enter into force on the fifth day following that of its legal publication. Our Residence, 16 September 2011/1711 THE CAPTAINS REGENT Maria Luisa Berti - Filippo Tamagnini THE SECRETARY OF STATE FOR INTERNAL AFFAIRS Valeria Ciavatta