Abstract

Judges’ privilege

The article discusses general issues concerning effectiveness of the Italian regulation concerning protection of legal professional privileges and judges’ privilege (duty of confidentiality) (other legal professional privileges will be analysed subsequently). As regards the currently applicable regulations, it is impossible to compile a universal definition of a notion of privilege, and in some case we deal with a combination of notions. It was traditionally considered that the object of privilege is „communication” given that penal provisions do not indicate documents as direct objects of legal protection. Such traditional opinions have to, however, be matched with the new law of 2007 on state secrecy which extends direct protection to files, documents and information the disclosure of which could be directly detrimental to the state. There are also opinions that in order to evaluate whether we deal with a notion of confidential communication, it is decisive to state whether a given piece of information is already known to a larger number of people or not. This does not mean that such an opinion was not objected by those who believe that there still is a need to protect information despite the fact that it has become public (e.g. re-publication in the press of information which was previously covered by medical confidentiality). The latter part of the article is dedicated to judges’ privilege considered as official confidentiality protected by the Penal Code. The analysis of judges’ privilege starts with the provisions of the Act on common courts of 1941, and then focuses on the provisions of the Penal Code and the new 2006 decree which explicitly refers to official confidentiality resting on judges.