Judicial power, both ordinary and administrative, is entrusted to judges who are not San Marino citizens. These judges are nominated by the Grand and General Council. The only exception is for Justices of the Peace, who can be San Marino citizens.
The Ordinary Court justice falls under the Civil and Penal Tribune and is administered by a single body which includes: the Justice of Appeals, the Legal Commissioner, the Justice of the Peace, Uditore Commissariale. In some cases foreseen by law, the organ with jurisdiction is the Council of Guarantors for Constitutionality and General Norms; this Council has functions similar to the Italian Constitutional Court.
Administrative justice is carried out by the Administrative Court and, hence, by first instance and appeal Judges.
The present penal code dates back to 1865 and the Code of Criminal Procedure to 1878. Up to the present trials are carried out utilizing and investigative process; however, a reform is under study which will render the procedures similar to the accusatory system used in Italy.
College of Guarantors for the Constitutionality of the Laws and Procedures
The supreme court organ was instituted in 2002 (Law n° 36 of February 26,2002), to assume the powers of the ancient “Council of XII”. The Council of XII, composed of twelve members of parliament, was one of the original bodies of the San Marino national juridical order, which already existed in the period of the free cities (comune) and acted as a third-instance Court of Appeals. Today the College of Guarantors is composed of six judges, with a four-year mandate, and elected by the Grand and General Council with a majority of two-thirds of its components.
The functions of the College of Guarantors are:
- to pass judgement on the constitutionality of rules and procedures upon request of at least twenty councilors of: the State Congress, of five Municipal Councils, of 1,5% of the voters or, on request of the judges or of the parties to a case
- to have jurisdiction over conflicts of competencies among the constitutional bodies
- to determine if proposed referendums are admissible by law
- to exercise interventions of censure on the activities of the Regents