[ccje2004/docs/CCJE(2004)13e] English only
CONSULTATIVE COUNCIL OF EUROPEAN JUDGES
QUESTIONNAIRE ON MANAGEMENT OF CASES,
JUDES’ ROLE IN THE PROCEEDINGS,
AND USE OF ALTERNATIVE DISPUTE SETTLEMENT METHODS
the delegation of Italy
The answers to the questionnaire are referred, unless otherwise specified (see administrative and tax proceedings), only to judges of the "ordre judiciaire". Royal Decree 30 Jan. 1941, n. 12, as amended, shall be hereinafter cited as "Rules governing the judicial organisation".
A. ACCESS TO JUSTICE
1. Have measures been taken, by legislatures and/or the court system, in order to inform the public on the functioning of the judicial system? If so, please comment on the impact of such actions on the amount of cases brought before courts.
In Italy there is no provision of an information system aimed at the general public concerning the functioning of the judicial system.
Art. 86 of the "Rules governing the judicial organisation", however, provides that "The Prosecutor general of the Republic at the Supreme Court of Cassation shall submit to the High Council for the Judiciary and the Minister [of Justice], for each judicial year, a general report on the administration of justice. The Prosecutors General of the Republic at the several Courts of Appeal shall submit to the Higher Council and the Minister a similar report for each single judicial district".
Art. 87 provides for a yearly general report from the Minister to the President of the Republic.
Art. 88 provides for the possibility for the Higher Council for the Judiciary to request the Prosecutors General at the Court of Cassation and at the several Courts of Appeal to report on the administration of justice during the opening ceremonies of each judicial year. In practice, the Higher Council always requests the Prosecutors General to report.
Dissemination through the media of the content of the above mentioned reports may provide an indirect source of information for the general public.
One should also consider that, in order to correspond to a request of the Senate in 1969, the High Council for the Judiciary periodically reports to the Parliament on the situation of justice in the country. Such a task for the High Council has been then provided for in art. 28 of its Internal Regulation.
2. Have measures been taken, by legislatures and/or the court system, in order to reduce the costs of bringing actions before the courts (e.g., by simplifying and/or standardizing legal documents to commence or continue litigation; by waiving, at least in some circumstances, the need to employ a lawyer; etc.). If so, please comment on the impact of such actions on the amount of cases brought before courts.
Simplification of legal documents to commence or continue litigation, as well as their standardisation, are debated issues. So far no actions have been taken.
The need to employ a lawyer is waived only in some civil matters (civil litigation, before the justice of the peace, when the case does not exceed the value of 516,46 Euros or the justice of peace grants a waiver even beyond that limit, but of course within the limited competence of that judge (small claims); litigation concerning traffic fines before the justice of the peace, and some other fines for violations usually of a limited value; some non contentious procedures before ordinary courts).
The areas in which employment of a lawyer is not mandatory is therefore extremely narrow. No actions seem to be foreseeable in this field to widen the scope of personal appearance of citizens before courts. No comment is therefore possible.
It may be argued, however, that wider exemptions from mandatory employment of a lawyer, or leaving the judge the discretion to waive this requirement, may result into a wider access to justice.
3. Have measures been taken to ensure an effective "legal aid" system? If so, please describe the system, with specific reference to:
(a) eligibility requirements;
(b) identification of authorities entitled to grant the aid;
(c) budgetary arrangements.
The Italian system of legal aid (based on a Royal Decree of 1923 and, for criminal actions, on a Law of 1990) has recently undergone significant modifications.
Until July 1, 2002 the system was as follows:
- for civil, administrative and tax litigations, with exceptions as specified by the law, assistance for the very poor was assured through the principle of the obligation of lawyers and experts to assist the indigents without charges, if a special Committee established at each Court recognized the claim not manifestly ill-founded; trial costs were anticipated by the State; both lawyers' and experts' fees, as well as costs could be recovered by lawyers and experts against the other party, if the indigent won the case;
- for criminal litigation, as well as for some specific areas of civil litigation (civil suits within a criminal trial; labour, alien expulsion, data protection, crime victim litigation; etc.), all costs, therein included lawyers and expert fees, were borne by the State.
The legal aid system was modified by law in 2001; the entire discipline of legal aid was then restated into a Unified Text approved through a Presidential Decree of 30 May 2002, n. 115, in force since 1st July 2002.
The new system extended also to civil, administrative and other fields of litigation the responsibility of the State for fees and expenses necessary for defence of indigent persons, previously limited to criminal litigation. For these other areas of litigation, different from criminal litigation, legal aid is granted only if the claim is not manifestly ill-founded.
Eligibility to legal aid is recognised to residents in Ital, even if foreign nationals (as well as to non residents subjected to an alien expulsion order) having an yearly income, as resulting from the last tax statement, not above € 9.692,22 (to be updated every two years with reference to the official inflation rate). If the party cohabits with a spouse or with relatives, income limit must include the possible incomes of the cohabitants, but the limit is elevated to € 1.032,91 for each of such persons.
For criminal litigation, applications for legal aid, containing a statement of the interested party concerning eligibility, are submitted to the court, that may order investigations on the conditions of the applicant. Denial of legal aid may form the object of an opposition before the Chief judge of the court.
In civil, administrative, and tax litigation, applications are submitted to the Bar Association, that admits the applicant provisionally to legal aid if the affidavit filed by the applicant concerning his or her economic conditions proves possession of the eligibility requirements and the claim to be brought does not appear manifestly ill-founded. Denial of legal aid may form the object of an opposition before the judge of the case. Revenue services perform subsequent investigations on the economic conditions of the applicant, if necessary starting a criminal action for false declarations.
The judge of the case may always revoke admission to legal aid in case of non existence of the eligibility requirements.
A special Committee grants admission to legal aid in tax matters.
Admission to legal aid makes it possible for the interested party not to bear procedural costs, that are waived by the State; lawyers and experts fees are borne by the State; the State may, under some conditions, recover costs waived and fees paid.
The legal aid system impacts on the State budget. At the moment, since no limitations to admissions to legal aid are provided for with reference to budget apportioned, the State will be held responsible even if budget funds prove not sufficient.
4. Have other measures been taken? For example,
a) conditional fee agreements (“CFAs”), whereby a party does not have to pay his or her lawyers if he or she loses, but his or her lawyers are entitled to charge the losing party up to a multiple of the normal fee if her or she wins;
b) legal costs insurance for
- a party’s own legal costs and/or
- any costs which if her or she loses he or she has to pay to the winning party;
c) fixed costs, so that the winning party can only recover a limited amount from the losing party, whatever he or she may have chosen to pay to his or her own lawyers.
No such measures have been taken in Italy, except for what will be mentioned hereinafter in reference to question c).
One should consider that in civil litigation the fundamental principle is that lawyers' fees and procedural costs of the winning party, as calculated by the judge, be paid by the losing party. This means that the winning party may recover only the amounts as awarded by the judge (therefore, this system is not a "fixed costs" system as in question c), whatever he or she may have chosen to pay to his or her own lawyers. The judge may, if both parties bring claims before the court and both lose, or if only one party loses but "reasons of fairness" so impose, order that each party pays his or her lawyer's fees and procedural costs.
In criminal matters, procedural costs are borne by the State except if the accused is found guilty; in this case he or she will have to reimburse the State of the costs incurred (included costs for custody in jail). As for fees of defence lawyers, in no case (i.e., even in case the accused person is acquitted) the State will be responsible for them.
B. REDUCTION OF EXCESSIVE WORKLOADS IN THE COURTS
1. Have measures been taken to relieve judges from non‑judicial tasks such as those listed, as examples, in the Appendix of Rec. No. R (86) 12 concerning measures to prevent and reduce the excessive workload in the courts? Please give comments as to any other tasks performed by judges that, according to the particular circumstances of the country, could be assigned to other persons or bodies; please identify tasks that could be entrusted to administrative court staff, whose jobs would thus be enriched.
In Italy some of the tasks listed in the Appendix of Rec. No. (86) 12 are still performed by judges:
dispensing with the publication of marriage bans;
change of family names and first names;
recognition of paternity (in case this is of a contentious nature);
administration of the property of those lacking legal capacity;
appointment of a legal representative for legally incapacitated adults and for absent persons;
judicial interventions in elections and referenda;
appointments in committees;
measures relating to estates of deceased persons;
civil status documents and registers;
land registry (in some regions only);
appointment of arbitrators.
According to the requests of the Italian Judges' Association, judges should be relieved - as a priority - from a number of tasks that they (as well as lawyers) are obliged to perform due to the permanent lack (especially in some geographic areas and in some sectors, such as the civil sector at large) of adequate support staff and equipment, as well as due to the fact that existing "chancellor" staff do not have the legal obligation of personally assisting judges, but have their own, often burdensome, tasks relating to administration and information of lawyers and the general public. As a result, most civil judges in the courts other than the Court of Cassation personally control summons of parties, write (often, hand-write) minutes of trials (or have them written by lawyers) as well as type on personal computers their decisions and other measures, even if such acts are standardised and could be easily prepared by assistants. Even simple researches of documents, publications and legal precedents, as well as relations with the public and other similar inappropriate tasks, also rest with the judge personally.
Governments so far have proposed, but not realised, on a collective contract or a legislative base, the establishment of an "Office of the Judge".
A clerkship structure, directly responsible to the judge, could easily be assigned, on a formal basis, some of the above mentioned tasks. As for other tasks that, in the circumstances of the country, still are to be performed by the judge, a clerkship structure could co-operate on an informal basis with the judge, under his or her responsibility.
2. Are there bodies, outside the judicial system, at the disposal of parties to solve specific "small claims" disputes? If so, please comment on the impact of the availability of such procedures on the amount of cases brought before courts.
The most important experiences of small claim procedures outside the judicial system may be considered:
- the establishment of conciliation panels at each Chamber of Commerce, in order to solve consumer disputes;
- the establishment of an "Ombudsman" at the Bankers' Association, in order to solve banking disputes;
- the establishment of regional conciliation panels, for tele-communication disputes;
- some conciliation procedures established by Town administrations.
Other than the above, mainly voluntary, arrangements, that are indeed not limited to petty claims although they mainly concern such disputes, no general legal framework exists for resolution of small claims outside the court system.
3. Is there a regular review of court workloads, and are consequent measures (i.e. changes in courts' geographical distributions; variations in the territorial, monetary and subject matter competence of courts; variations in the court personnel) taken to ensure a balanced distribution of the workload? Please identify bodies responsible for such review and for consequent policy choices; please also describe the role of the judiciary in this process.
Variations of the geographic distribution of courts on the territory and in the competence criteria of courts may be made through the legislative process.
Unfortunately so far decisions in this field have not been based on a regular review of court workloads.
In particular, geographic distribution of courts results from stratified (even century-old) choices of the legislative. Despite repeated requests of judicial and lawyers' associations, only minor changes in the judicial geography have been possible in recent years, since those changes affect local interests. A proposal pending in Parliament, aimed at delegating the Cabinet the power to review court geography, has been recently given up.
The Ministry of Justice has the power to propose such variations as a Cabinet's proposal in Parliament; the Ministry also decides on court personnel.
The Higher Council for the Judiciary has the task to "make proposals to the Ministry on modifications of judicial districts and on all matters concerning organisation and functioning of services relating to justice" (art. 10 of Law 24 March 1958, n. 195 on the "Establishment and Functioning of the Higher Council for the Judiciary"). The Council has repeatedly accomplished this task and has appointed representative on joint committees.
4. What role do judges (especially chief judges) play in the management of judicial infrastructures, human resources, information and technology equipment? Do they receive regular training in management techniques? What role, on the contrary, is played by administrative top officials?
Please refer to answers for Italy to questionnaires prepared in view of the Opinion n. 2 of the CCJE for the limited role of the Judiciary in all decisions implying costs, that are still mainly centralised with the Ministry.
The Higher Council for the Judiciary in recent year is providing management courses for Chief Judges, concerning however mainly their organisational tasks within the judicial function, and not infrastructural decisions, to which Chief Judges participate in a very limited way.
C. QUALITY OF JUSTICE AND ITS ASSESSMENT; QUANTITATIVE STATISTICAL DATA; MONITORING PROCEDURES
1. Is there any system in operation in your country having the aim of assessing quality of judicial activity? Please comment on indicators chosen for such assessments, as well as on results obtained.
No such general system concerning qualitative assessment exists. A proposal concerning the general assessment of "efficiency" (not involving quality as such) is underway on the basis of the results of the work of a Joint Committee established by the Ministry of Justice and Higher Council for the Judiciary.
2. Please describe the operation of quantitative statistical data collection concerning judicial activity. Please identify, in particular:
(i) institutional subjects (centralised and/or decentralised) in charge of data collection, data analysis, as well as receiving follow‑up;
(ii) judicial activities that form the object of data collection and analysis;
(iii) relevance of statistical data in professional evaluation of individual judges;
(iv) relevance of statistical data in evaluation of performance of judicial offices and/or chief judges.
Please see answer to no. 4 below.
3. Please describe monitoring procedures in operation in your country that, employing assessment data as above, may result into actions aimed at a better control of reasonable duration of proceedings or better allocation of resources (such as variations of judicial and/or administrative staff, revision of territorial or subject matter distribution of cases, "performance contracts" and the like);
Please see answer to no. 4 below.
4. In case that some or all of the above actions are the task of agencies other than the judiciary, what is the role played by the judiciary in the same actions?
Collection of statistical data involve the Ministry of Justice (a Directorate General of which is directly competent for statistics and monitoring), the National Institute for Statistics, as well the administration staff of the several courts.
Data are analysed and disseminated among the subjects involved, as well as the general public through bulletins of the National Institute for Statistics.
The Higher Council for the Judiciary, not having direct competencies in this field, makes proposals to the several actors and is involved in data analysis in order to accomplish its tasks.
The present system of judicial statistics, albeit improved in recent years, is still viewed as "weak and poor", as well as influenced by "cultural and bureaucratic limitations connected with the traditional and inefficient system of manual and paper-based data collection" (Higher Council for the Judiciary, Circular Letter n. P-13899/2002 of July 16, 2002). The data collected mainly consist of the numbers of cases started and pending, as well as the number of cases defined, in each period (normally, a semester). Subdivisions of data are by subject matter of the case (within a "code" system which has been in force for a few years only) and by court, chamber, and judge involved.
Technological innovation and growing awareness of the importance of knowledge of data for a better organisation of justice have recently motivated the Higher Council of Justice (having a consultative role in this field) - through the above mentioned resolution - to propose the establishment of a unified system ("Monitoring system of judicial case flows") available to the several institutions having competencies in the field of justice.
The system aims at obtaining a "real time" knowledge of the main variables that influence, directly or indirectly, the progress of judicial cases as well as the general performance of the justice system, both from a functional (progress of cases in reference to the different activity of judges, lawyers, administrative staff, tax offices) and structural points of view (different rules concerning different trials, numbers of staff, logistics, availability of new technologies). The philosophy behind the proposal is that only the joint consideration of such variables, so far not considered, may help in deciding organisational measures.
Present monitoring is, on the contrary, very limited in view of the limited significance of statistics available.
As mentioned above, a number of practical and legal constraints limit the possibility that assessments, as they are possible already today, result smoothly and continuously into actions aimed at a better control of reasonable duration of proceedings or better allocation of resources.
No "performance contracts" are known in the Italian practice.
D. ALTERNATIVE DISPUTE RESOLUTION
a) in general
1. Please produce a list of ADR schemes in operation in your country, identifying private and public schemes, generalist and specialised schemes (both according to qualities of litigants and subject matter, with especial reference to family mediation, criminal mediation, administrative and civil mediation), voluntary and mandatory schemes (please clarify whether your system bars access to a court or allows a judge to stay court proceeding, in respect of some disputes, either in favour of ADR or pending ADR). Please specify if the parties or the State bear the costs of ADR.
Public ADR schemes
a) possibility for the litigants to request the justice of the peace to call a conciliation session, in a non contentious framework (generalist and voluntary scheme, based on the law, for civil litigation, usually for petty claims; operation of the scheme is basically by the State, although the parties bear some costs);
b) mandatory attempt to mediate labour disputes before local Offices of the Ministry of Labour (specialised scheme, based on the law, accession to which is a pre-requisite to then bring the case to the court; the court will otherwise stay the proceeding; operation of the scheme is basically by the State, although the parties bear some costs);
c) conciliation and arbitration before panels at the Chambers of Commerce (for some controversies the scheme is provided for by the law; for some other subjects, the scheme must be viewed as voluntary; the scheme usually is adopted for consumer and trade civil disputes; costs are borne by the parties, although they are limited in amount);
d) conciliation panels established by some town administrations (voluntary schemes, funded by the town administrations, to solve petty civil disputes);
d) conciliation panels established by some Bar Associations, considered in Italy public entities (voluntary schemes, with different arrangements as to costs);
e) mandatory attempt of conciliation before regional panels to be established to solve consumers disputes in the tele-communication field (specialised scheme, based on the law, accession to which is a pre-requisite to then bring the case to the court; the court will otherwise stay the proceeding; operation of the scheme is basically by the State, although the parties bear some costs).
Private ADR schemes
a) a few ADR-specialised private companies (voluntary schemes; the parties bear the costs);
b) the so-called "Banking Ombudsman" established by the Bankers' Association (voluntary scheme, operated by the Association, to solve banking disputes with customers);
In the field of family mediation, in the practice of some courts the judge may invite the parties of a family dispute to consult with a specialised structure (an association, a department of psychology at the local university, etc.) in order to attempt a consensual solution of the case (separation and divorce).
Experiences in criminal mediation are limited to:
- competencies of police in trying to settle disputes before they are officially brought;
- possibility for the public prosecutor to hear the victim and the accused in order to have the claim given up, for those criminal claims for which charges may be brought only upon request of the victim (mainly violations against property); the same mediation may occur before the judge;
- contacts between victims and the accused promoted by the Supervising Judge for Criminal Enforcement, in order to tailor measures concerning execution of the penalty.
In tax litigation some forms of agreement between the Administration and the taxpayer are possible, to avoid litigation or stop litigation already started.
Within administrative litigation, a number of legal obstacles (connected with the need of special deliberations of public bodies to settle controversies on an amicable basis) limit the scope of ADR. However, the law provides for "amicable agreements" to be reached in controversies concerning public contractors.
As for legislation not yet enforced, one should consider that Legislative Decree 17 January 2003, n. 5 (in force since 1 January 2004) has granted to private and public bodies, with requisites of seriousness and efficiency, the possibility to establish bodies, to be registered at the Ministry of Justice, to manage a conciliation attempt only in corporate, banking and financial services litigation. Such bodies are required to file with the Ministry a "Regulation of Procedure" and a Chart of Fees. The conciliation procedure is tax-exempt and the conciliation agreement is exempted from registration fee within the value of € 25.000. The procedure must be confidential and statements made by parties cannot become evidence in the possible following court case. The conciliator must be impartial. If the parties reach an agreement, this agreement may be endorsed by the Chief Judge and it becomes enforceable. If one of the parties does not appear, the procedure ends with a statement of non appearance. If both parties appear and they do not reach an agreement, the conciliator issues a recommendation, and the parties express the different conditions at which they were available to settle. Non appearance, as well the settlement conditions indicated by the parties in case of failure of the procedure, are evaluated by the judge when deciding on costs and fees of the following trial.
This latter provision has been criticised as it limits confidentiality and penalises a party for not having accepted a settlement.
A Chamber of Deputies Bill of 5 March 2002, not examined yet in Parliament, provides for the establishment of a general discipline to promote mediation in civil matters.
2. Are there legal provisions ensuring State supervision over ADR agencies, as well as training of mediators?
No. Please see answer to no. 1 above for the provisions of Legislative Decree 17 January 2003, n. 5 (not enforced yet) in the field of corporate, banking and financial services litigation.
3. Is legal aid applicable to all or some ADR procedures?
4. Is confidentiality protected? Is any document of the ADR procedure apt to be produced in court, in case mediation failed?
The only legal discipline of confidentiality may be found in Legislative Decree 17 January 2003, n. 5 (not enforced yet) in the field of corporate, banking and financial services ADR. See answer to no. 1 above. This discipline, however, is criticize as, while it protects confidentiality, "imposes" to the parties the obligation to state in the minutes a conciliation proposal, which will later be comparatively evaluated by the judge in order to decide on fees and costs.
In other ADR procedures confidentiality may be protected on a contractual basis, which may not be a sufficient restriction for production of evidence in court.
5. May the judge consider refusal to access ADR or to accept an amicable settlement when making orders relating to trial expenses or costs?
Please see answer to no. 4 above.
b) in‑court ADR
1. What is the role of the judge in mediation during a court proceeding? May the judge recommend or order that the parties appear before a mediator, even without their consent? May the judge serve himself or herself as a mediator or a conciliator, or is a conflict of role envisaged? If so, please indicate solutions found. Please give details as to costs of the in‑court mediation.
A role of the judge in in-court ADR is to be referred almost exclusively to civil litigation.
Leaving aside some exceptional hypotheses in which the judge must control that a mediation has been attempted before the trial, having otherwise to stay the procedure (see above), in the ordinary civil proceeding, according to art. 183 of the code of civil procedure, the judge has to attempt to persuade the parties to amicably settle the dispute. This rules often remains not applied due to non appearance of parties in person (especially banks, insurance companies, etc.) and to the (probably unjustified) conviction of some judges they are in a conflict of role. In addition to that, mediation techniques are not a common knowledge for judges. Training actions have been started by the Higher Council for the Judiciary.
Some specific application of the above procedural rule takes place, by virtue of other provisions, in separation or divorce of spouses.
Other than the above attempt to persuade the parties within the trial heard, the judge cannot personally serve as a mediator or conciliator in other pending cases. A private (on a volunteering basis or against remuneration) activity as a conciliator in cases that he or she would not hear as a judge (as is common in other systems) would be considered in Italy as a non-judicial task, that the present legal framework does not encourage, and would need a special derogation by the Higher Council.
The law does not assign the judge the power to appoint a mediator or conciliator. Some proposals have been formulated in Parliament to achieve this goal. Please see below for an example introduced by court practice in family mediation, on the basis however of the consent of the parties.
The above situation results into a very limited role for the judge in in-court mediation.
2. If the judge is entitled, by law or court practice, to appoint a mediator or a conciliator, what qualifications do these subjects have? What training have they received? What responsibilities do they incur? How is their independence guaranteed? Is equality among the parties guaranteed, so that no unfair agreement is concluded?
Reference is made to those limited experiences, mentioned above, in which in the practice of some courts the judge may invite the parties of a family dispute to consult with a structure specialised in the field of family mediation in order to attempt a consensual solution of the case. Usually the structure is chosen for the reliability of professionals therein operating (e.g. a department of psychology at the local university, etc.).
Other than the above, no wide-spread experiences exist in in-court ADR, so that arrangements concerning independence, responsibilities, etc. of mediators have not been taken.
3. What legal relevance does an in‑court conciliation or mediation agreement have (in particular, as to its enforcement)? Are there specific provisions for agreements reached before certain accredited mediators and/or endorsed by a judicial homologation?
Please see above, where reference was made to the new discipline to be found in Legislative Decree 17 January 2003, n. 5 (not enforced yet) in the field of corporate, banking and financial services ADR. This is the only piece of legislation providing for judicial homologation of agreements reached before accredited mediators and their enforcement.
Otherwise, agreements have the force of a private contract, if reached out of court.
The settlement can also have the form of a "conciliation agreement" before the judge (art. 185 of the code of civil procedure and some other specific provisions); in this case, enforcement is granted although the agreement maintains the nature of a private contract.
c) out‑of‑court ADR
1. What kind of judicial control is possible on out‑of‑court ADR agreements?
In the present circumstances in Italy, no judicial control is possible, since the judge shall only record - in its decision - the fact that the interest of the parties to a judicial decisions no longer exists.
d) ADR in administrative law disputes
1. Is it possible under your system that a public entity participates in an ADR procedure? Does the person representing the entity have the power to settle the dispute, or is an administrative proceeding needed to conclude the amicable settlement?
Within administrative litigation, a number of legal obstacles (connected with the need of special deliberations of public bodies to settle controversies on an amicable basis) limit the scope of ADR. However, the law provides for "amicable agreements" to be reached in controversies concerning public contractors. Aside from that, seldom are controversies involving public entities solved by amicable settlement.
e) criminal law and ADR
1. Please describe the role and extent of ADR proceedings vis‑à‑vis criminal investigations and/or criminal proceedings in your country. What are the respective roles of police, public prosecution and the judge?
Please see above for the few experiences in the field of ADR in criminal law.
E. CASE MANAGEMENT
a) in general
1. Please give details as to the average duration of a civil and a criminal proceeding (where charges are brought against an identified individual) in your country, with separate figures as to first degree and appellate proceedings, as well as Supreme Court proceedings. Please provide relevant information as to data used to calculate the average. Please also give details as to duration of simplified and accelerated procedures. Please state the source of data.
According to data appearing in the "Report on the administration of justice in the year 2003" by the Prosecutor General at the Court of Cassation, with reference to the year period ended on 30 June 2003, cases had the following average duration (in days):
CIVIL CASES - FIRST DEGREE
Before the Justice of the peace: 315;
Before the Tribunal: 879
Before the Court of appeal: 501
CIVIL CASES - APPEAL PROCEDURES
Before the Tribunal: 1.073
Before the Court of appeal: 774
CRIMINAL CASES - FIRST DEGREE
Before the Judge for Preliminary Investigations: 324
Before the Tribunal: 341
Before the Court of Assize: 398
CRIMINAL CASES - APPEAL PROCEDURES
Before the Court of appeal: 543
Before the Court of Assize of appeal: 203
CASES BEFORE THE COURT OF CASSATION
In civil matters: 1.120;
In criminal matters: 216.
The average duration of proceeding is calculated through the following formula:
D = 365 * (Pi + Pf) / (S+ E)
Pi is the number of cases pending at the beginning of the period;
Pf is the number of cases pending at the end of the period;
S is the number of newly registered cases;
E is the number of defined cases.
The data show an improvement in civil litigation, due to reforms of 1995-1999 that are now producing their effects.
2. Does in general the judge have sufficient powers to control the parties' activities, to choose between written or oral procedures, to resort to a summary judgement, to determine the calendar and the time‑limits for presentation of arguments and evidence, to sanction delaying tactics and/or abusive behaviours?
In civil cases, only upon request of the plaintiff can the judge resort to a summary judgement.
As for control of the parties activities, although the judge has the power to decide the calendar and even decide the case if evidence is sufficient, the judge does not have discretion over a number of activities that the party may repeatedly choose to postpone, obtaining adjournments of the case (that the judge can avoid only with the agreement of the parties).
No specific sanctions are provided for delaying tactics.
In criminal cases, powers of the judge are also limited. Delaying tactics and abusive behaviours are connected with the complex and inefficient system of summoning the parties and witness, as well as with the wide-spread proposition of remedies. As an example, one may remember that the Prosecutor General, in his Report for 2003 (see above) has once more indicated the distorted use of recourse before the Court of Cassation: two thirds of the criminal cases brought to the Court are based on reasons that cannot be examined by the Court. 11% of the cases concern plea bargaining decisions (based on the agreement of the parties), 85% of which are declared not receivable. Such cases are brought to the Court by the accused, even after plea bargaining, in order to benefit of statute of limitations provisions.
3. Have measures been taken to assure that most cases are adjudicated by a single judge, rather than by a panel?
Since 1995 in civil matters, and since 1999 in criminal matters, most cases are tried by a single judge, leaving the panel decisions only to difficult subjects or serious crimes provided for by the law.
b) in civil disputes
1. Please describe, in general, implementation in your country of Recommendation No. R (84) 5 concerning principles of civil procedure designed to improve the functioning of justice. Some specific aspects will be dealt with by following questions.
The Recommendation is at present little known in Italy. Its principles have been considered during the Civil Procedure Reform of 1990, which however entered into force only in 1995 with relevant modifications that limited the role of the judge originally provided for by the Reform.
Current political debate - which already resulted into a procedural reform concerning controversies in corporate, banking and financial services in force since January 2004 - goes well beyond, since propositions are pending to establish a procedural model that provides for judicial intervention, also in ordinary cases, only when evidence must be collected (if not collected before) and the decision rendered. All the previous development of the case would take place through exchange of declarations between lawyers, that would have control of procedure. The Higher Council for the Judiciary and the Italian Judges Association have expressed concern and criticism on such model of procedure.
2. Please specify characteristics of procedures existing in your country that may qualified as accelerated, simplified, and/or summary. Please refer to materials (available on the Council of Europe's website) presented during the European Conference of Judges on the theme "Early settlement of disputes and the role of judges" held in Strasbourg, 24‑25 November 2003.
Please see answer to no. 3 below.
3. As to simplified procedures, please indicate (and provide details) if law or court practice, even if on the basis of "protocols", allow in your country:
(i) simplified methods of commencing litigation;
(ii) no hearing or convening of only one hearing or, as the occasion may require, of a preliminary preparatory hearing;
(iii) exclusively written or oral proceedings, as the case may be;
(iv) prohibition or restriction of certain exceptions and defences;
(v) more flexible rules of evidence;
(vi) no adjournments or only brief adjournments;
(vii) the appointment of a court expert, either "ex officio" or on application of the parties, if possible at the commencement of the proceedings;
(viii) an active role for the court in conducting the case and in calling for and taking evidence;
(ix) the rendering on the part of the judge of a mere "oral" judgement.
A simplified method of commencing litigation (oral claim) is provided for only for cases before the justice of the peace. It is almost never used, also due to the rather general obligation to hire a lawyer.
Aside from areas of litigation of little relevance (fines for traffic violations and similar cases), the Italian system does not provide for procedural simplifications through the measures mentioned.
4. As to summary proceedings (in which the examination of the case on the part of the judge is done on the basis of what is only evident), please indicate if in your country:
4.1 the judge has the power to decide summarily on:
(i) disputes on which an early decision is required (urgent cases procedure);
(ii) disputes concerning recovery of certified uncontested debts;
(iii) small claims (please specify monetary limit);
No. The justice of the peace may decide "on equitable grounds" as to the merits, but respecting all procedural rules (including taking of evidence), cases within the value of 1032,91 €. The decision cannot be attacked in appeal, but only in cassation.
(iv) employer‑employee relations;
(v) landlord and tenant relations;
No. A summary decision is possible, however, if after a request of termination of lease, the tenant does not appear before court or appears without contesting.
(vi) questions of family relations (divorce, custody of children, maintenance);
(vii) disputes involving consumers;
No, except for matters involving abusive clauses in contracts.
(viii) disputes relating to road accidents;
(ix) manifestly ill‑founded claims.
4.2 a summary judgement has or does not have the force of "res judicata";
Does not (with exceptions: e.g. summons for termination of lease followed by no opposition of tenant; injunction to pay followed by no opposition of debtor).
4.3 a summary judgement is liable to determine rights and obligations of the parties even if a procedure on the merits is not initiated.
With some exceptions (e.g., provisional measures issued to temporarily govern use of family home and custody of children of separating or divorcing spouses; provisional measures in corporate, banking and financial services as regulated by the above mentioned Legislative Decree of 2003), measures granted provisionally lose their force if a judgement on the merits is not started within a deadline set by the judge or by the law. The fact that the Italian legal system forces, through such provisions, the parties to come to final judgement has been criticised, and proposals have been made to modify the system.
It is also proposed that in some matters (possession cases) only a summary judgement should be issued, and parties should be free to then start litigation on property rights.
5. Please describe the extent to which injunction relief is available in your system (judicial orders of payment or to perform contractual obligations).
In Italy the judge may issue a judicial order for payment or to make available a specific thing the debtor is obliged to deliver to the creditor. The order may be issued after a simple procedure "ex parte", only on the basis of documents that give reasonable certainty as to existence of the obligation. Debtor can apply within a set time-limit to set the decision aside. In the case that such an application is filed, an ordinary proceeding starts and the judge will have to decide whether or not to grant provisional enforcement to the order, depending on the defences of the debtor. If the debtor does not file an application to set the order aside, the order is declared enforceable by the judge and acquires "res judicata".
6. Please describe the relevance of time‑limits and interlocutory judgements to assure a reasonable duration of ordinary proceedings.
Interlocutory judgements are possible in Italy and are sometimes used. However, it may be argued that they do not have an impact on duration of proceedings.
As to time-limits, the procedural reform entered into force in 1995 adopted the "forfeiture" solution ("forclusion"), providing by law that some activities should be mandatorily performed before or at the first hearing, while some other activities should be performed within strictly fixed time-limits imposed by the judge within time spans provided for by the law, after which the activity is barred.
From one point of view, this innovation of Italian civil procedure was weakened by the fact that "forfeiture" was not linked to a very limited number of hearings (one or two, as in the original Law of 1990, modified in 1995).
From the opposite point of view, effectiveness of forfeiture of procedural steps was guaranteed by the principle that forfeiture may be declared "motu proprio" by the court.
This quite significant characteristic of the system, that judges and the Higher Council for the Judiciary have underlined in many occasions, is now under review, since propositions have been made in Parliament to return to the principle, in force before 1995, according to which only the opposite party can request the court to consider procedural steps barred for the party that incurred in forfeiture.
The Italian Judges' Association, in 2003, has requested that Parliament considers the possibility, provided for by a Bill meeting general approval, to confirm the present model of procedure with some corrections that may make it closer to modern "case management" standards.
7. What protective measures are available in your system? You may refer to protective measures aimed to protecting the practicability of enforcement, or to anticipate enforcement; protective measures aimed to "freezing" a certain situation of fact pending the trial, e.g. through appointment of a receiver; measures that can be indicated as protective in a very broad sense, since they aim at anticipating the decision in the substance of the case. Please specify the cases in which urgency is required, and cases in which remedies may be granted without both parties having been heard.
The Italian system makes a sufficient range of protective measures available:
a) protective measures aimed to protecting the practicability of enforcement, or to anticipate enforcement (e.g. "sequestro conservativo");
b) protective measures aimed to "freezing" a certain situation of fact pending the trial, e.g. through appointment of a receiver (e.g. "sequestro giudiziario");
c) measures that can be indicated as protective in a very broad sense, since they aim at anticipating the decision in the substance of the case (e.g. "ordinanza interinale").
Art. 700 of the civil procedure code grants the judge the power to grant any protective measure to assure the safeguard of a right that may be jeopardised by the time needed to initiate ordinary litigation (so called "atypical protective measures").
In all cases, protective measures may be granted without the other party to be heard; in such a case, the other party must be heard within a very short time limit, and after the hearing the judge must confirm, modify or revoke the protective measure.
In all cases (with a few exceptions: e.g. measures in the field of possession) urgency (or "periculum in mora") is a requisite. This seems a limitation of the Italian system, so that there are proposals aiming at granting the judge the power to issue a measure if the existence of the claimed right is evident (with some reference to the French "référé" procedure).
8. Does your system provide, besides protective measures in view of the taking of evidence (provisional hearing of witnesses, experts reports, site inspections, taking of samples), also measures that enhance the possibility for the plaintiff to gather information before the trial (see the Anton Piller order in the English experience)?
9. In what circumstances is a first degree judgement provisionally enforceable? If provisional enforcement is granted by the judge or by the law, upon which conditions the party filing an appeal may obtain suspension of enforcement?
First degree judgements are always provisionally enforceable in Italy after the procedural reform of 1990. The losing party may apply to the Court of appeal to obtain suspension of enforcement for serious reasons.
10. Please describe implementation in your country of Recommendation No. R (95) 5 concerning the introduction and improvement of the functioning of appeal systems and procedures in civil and commercial cases. Under what circumstances, if any, is a court decision not subject to appeal? Is in your country in force a system that admits appeal, at least for some disputes, only upon court leave? If not, would such a system be desirable?
The only final decisions that are not subject to appeal are those of the justice of the peace, in the cases in which that judge decides on equitable grounds (cases within the value of 1032,91 €). The decision may however be attacked before the Court of cassation.
There might be grounds to believe that a leave system for appeals may be desirable.
11. Please express your view concerning measures to improve:
(i) enforcement of court judgements and effectiveness of the activity of enforcement agents;
(ii) transparency of information concerning assets of debtors;
(iii) recognition of judicial decisions rendered by judges from another Member State of the Council of Europe.
As for item (iii), the Italian system of recognition is quite satisfactory. As far as approximation and mutual reliability among systems progresses, one may think of automatic or semi-automatic recognition of decisions.
As for items (i) and (ii), the Italian system of enforcement may be improved by way of:
- introduction of "astreintes" according to the model of other systems (e.g. France), unknown in Italy with a few exceptions;
- introduction of transparency systems on the assets of debtors, according to the model of other systems (e.g. France), unknown in Italy.
"Astreintes" have been proposed in a Bill before Parliament.
c) in criminal matters
1. Please describe, in general, implementation in your country of Recommendations No. R (87) 18 concerning the simplification of criminal justice and No. R (95) 12 on the management of criminal justice. Some specific aspects will be dealt with by following questions.
The Italian adversarial criminal procedure system, introduced in 1989 in substitution of the previous inquisitorial system, has been modified several times. It appears quite distant from simplification standards.
2. Please specify characteristics of procedures existing in your country that may qualified as accelerated, simplified, and/or summary. Please refer to materials (available on the Council of Europe's website) presented during the European Conference of Judges on the theme "Early settlement of disputes and the role of judges" held in Strasbourg, 24‑25 November 2003 (although these materials mainly concern civil justice).
The Italian system provides for:
- a plea bargaining system, entailing a reduction of penalty;
- an "immediate" judgement system, allowing the court to render the judgement after an ordinary trial, skipping the "filter" of the preliminary hearing before the judge in charge of preliminary evaluation of charges;
- a "direct" judgement system, similar to the above, for cases in which the accused has been arrested in flagrant commission of the crime or has pleaded guilty;
- an "accelerated" judgement, by which upon request of the accused, the judge in charge of preliminary evaluation of charges decides the case, with a few exceptions, on the only basis of the information as collected by the public prosecutors (that ordinarily would be of limited value as evidence, since evidence is otherwise collected in the adversarial trial); a reduction of penalty is granted in case charges are upheld.
Unfortunately, none of the above "alternative" procedures has proved successful; the accused still prefer the ordinary trial, enhancing the possibility of defence (as well as of delaying tactics).
One should also mention that, for less serious violations, the public prosecutors may request the judge to issue a "penal fine order", which will become enforceable if the accused party does not file an application to set aside, after which an ordinary proceeding is started.
3. Please indicate (and provide details) if in your country:
(i) discretionary decisions to waive or discontinue proceedings are possible, although adequate evidence of guilt has been found (please identify cases and competent authorities);
No, with the exception of juvenile minor crimes. In Italy, it is a constitutional requirement that criminal charges cannot be discretionarily waived.
(ii) mass offences such as road traffic, tax and customs law, if they are minor, are decriminalised;
Yes. Criminal punishment is maintained for serious violations (e.g. driving while intoxicated; tobacco smuggling).
(iii) out‑of‑court settlements are possible;
(iv) penal orders such as those described in Recommendation No. R (87) 18, or equivalent simplified proceedings are employed (please provide information as to percentage of crimes so tried);
Yes. Please see answer to no. 2 above.
(v) the procedure of "guilty plea" (whereby the alleged offender is required to appear at an early stage to declare whether he or she accepts charges, and court may decide the case in an accelerated way without investigations), or equivalent procedures are employed;
Italy does not have a "guilty plea" procedure. However, if the offender admits charges before the public prosecutor, then the public prosecutor has the choice to have him or her tried by way of a "direct" trial (see answer to no. 2 above).
(vi) declarations of voidness of proceedings are limited to cases in which failure to comply with procedural requirements have caused real damage to the interest of the defence or prosecution;
The Italian criminal procedure system is often criticised as many hypotheses of voidness of proceedings involve cases in which failure to comply with procedural requirements have not caused real damage, and yet they are relevant (e.g., formal requirements for summons and information to the accused, etc.).
(vii) notification of summons and decisions of the court is done through simple, rapid procedures, including by mail;
Mail notifications are possible. But the system is far from simple.
(viii) trial court is exempted, when parties agree or the case is not serious, from issuing the decision in writing (please also refer to simplified forms of written decisions).
No. Oral decisions are not possible.
4. Please describe the role of the bench in the several stages of investigations (concentrating on the three stages referred to Principle III, a.6 of Recommendation No. R (87) 18). Please also describe the role of the bench as to "guilty pleas" and sentencing, if such phases may take place out of court. Please describe the respective role of professional judges and juries in findings of guilt and determination of penalties, in those cases that are tried before a jury.
In Italy the bench plays a role in all stages of investigation. The police and the Public Prosecution have a very limited power to maintain in temporary custody an accused person; the police informs the public prosecutor of any police measure limiting the freedom of persons, with full right of defence; after a limited number of hours, the accused must be brought before the judge upon request of the prosecutor or released. Practically no investigation measure that may affect freedoms of the persons or availability of property may be taken without an application of the public prosecutor to the "judge for preliminary investigations", whose decisions may form the object of an appeal and even recourse at the Court of Cassation. A judge different from the one that will adjudicate the case is required, with some exceptions, to decide in preliminary hearing, upon a request of the public prosecutor and with full right of defence, whether or not grounds exists for the commencement of a trial. During the trial, then, the role of the judge extends, even in an adversarial system, to admission of evidence that parties have not requested, if necessary.
Italy does not have a "guilty plea" procedure (see above).
Italy makes use of juries only within the "Court of Assizes/Court of Assizes of Appeal" system. Those Courts are specialised chambers of the Tribunal (judge of first degree) and the Court of Appeal, located only in the main judicial offices and competent for serious crimes. The Court of Assizes are composed, in their vast majority (six jury members), by citizen randomly chosen from public registries. The adjudicating panel is also composed of two professional judges, one to serve as a Chairman during the public hearing, the other to assist the Chairman and usually to draft the judgement. Both professional and lay judges have an equal position and they decide cases and matters of procedure in chambers by equal personal vote. The majority of the whole panel therefore determines both the guilt and the penalty.