Strasbourg, 1 February 2005
CCJE (2005) 9
Consultative Council of European Judges (CCJE)
Questionnaire on theme “Justice and society”: Reply submitted by the delegation of Italy
A. THE EDUCATIONAL ROLE OF THE COURTS IN A DEMOCRACY.
A.1. Please describe arrangements existing in your country aiming at informing justice users and/or the general public about the functioning of the judicial system. Please describe the specific information provided (nature of proceedings available; average length of proceedings in the various courts; costs and risks involved in case of wrongful use of legal channels; alternative means of settling disputes offered to parties; landmark decisions delivered by the courts) as well as the press resources used (printed citizen's guides, Internet facilities, information offices, etc.). Please also state which authorities provide such services, underlining the role of the courts themselves and/or of lawyers' associations (see paragraphs 12-15 of the CCJE's [Draft] Opinion on Fair Trial within a Reasonable Time and Judge’s Role in Trials taking into Account Alternative Means of Dispute Settlement). Please say whether a role is played by judges' professional associations and/or by the Judicial Service Commission/High Council for the Judiciary. Please say whether public interest organisations and universities have a role in the above.
Arrangements existing in Italy aiming at informing justice users and/or the general public about the functioning of the judicial system are quite limited:
- Internet facilities (of the Ministry of Justice, of the High Council for the Judiciary, of the Court of Cassation, of single lower courts) provide basic information on the justice system;
- some Bar associations and some Courts, with the support of local administrations or EU funds, have started "access to justice" projects, making some printed materials and legal information available.
Information on ADR resources is provided only by some Bar associations, town administrations, Chambers of Commerce, and the like.
On the other hand, detailed information is available on landmark court decisions, both on paper and on the Internet. However, presentation of such information is often not tailored for private citizens, but for legal professionals.
Information on average length of procedures is not provided to the general public on each access to justice; it is however available on the basis of national statistical service resources, as well as of yearly reports of the general prosecutor's offices in each judicial district and at the national level.
Both the Judges' Association and the High Council for the Judiciary do not have any information office open to citizens, or any other structure devoted to dealing with citizens' information needs.
A.2. Please describe the systems envisaged to satisfy the information needs of policy makers, academics, public interest groups and private citizens.
The data and resources available are basically the same as described under §A.1.
A.3. Please describe specifically the educational role of judicial decisions in your country. Please describe how judicial decisions are made known to the general public and how accurate such information is. Please consider that what is relevant is information provided to the public and not to legal professionals. Please also consider that the role of the press will be dealt with in a subsequent section (C.2) of this questionnaire.
Judicial decisions are made known to the general public only in a theoretical way, i.e. through their "publication" at the court's chancellor office, where they are available for citizens. The educational role of Courts toward the general public is not clear in Italy, since information (other than for legal professionals) on Courts decisions relies almost exclusively on the media.
A.4. Please say whether school and university education programmes in your country (even outside law faculties) include a description of the judicial system and visits to courts. Please specify outside actors that are employed by educational institutions (e.g. in classroom appearances) to provide programmes (judges, court staff, academics, lawyers, non-governmental organisations). Please say whether courts have staff specifically in charge of liaising with educational agencies (P.R. offices or the like). Please describe educational methods (e.g., role playing, attending hearings, etc.).
Some school and university programmes in Italy include a description of the judicial system, teaching being usually done by school law teachers or academics through traditional teaching methods.
Visits to courts are rare and organised on an "ad hoc" basis, usually for graduate law students.
Judges, lawyers and notaries participate as teachers, on a regular basis, only in post-graduate schools for the preparation to legal professions.
The High Council for the Judiciary has recently introduced heavy restrictions to the participation of judges and prosecutors in educational programmes, by denying authorisations - e.g. - if teaching and/or student tutoring in a regular university course exceeds 30 hours/yr.
No P.R. offices exist in court structures.
A.5. Please say whether courts in general, or some courts, have "outreach programmes" (see above) or at least regular programmes consisting in conducting surveys, holding focus groups, employing lawyers and academics for public forums, etc.
At the moment no such outreach programmes exist. Courts only organise legal fora, addressed to judges and lawyers.
B. THE RELATIONS OF THE COURTS WITH THOSE INVOLVED IN COURT PROCEEDINGS
B.1. Please provide detailed information on programmes with the above mentioned objectives being carried out or planned in your court system.
B.2. Please describe who takes part in programmes.
Some training initiatives on the themes of judicial impartiality and non-discrimination on the basis of race, gender, and ethnical background have been organised, for judges and prosecutors, by the High Council for the Judiciary.
Training of legal professionals in order to reinforce confidence and respect for the judge is presently limited to general courses of lawyers' deontology.
Some interventions on court infra-structures have been realised, some are still under discussion (e.g. removal of references to a specific religious creed from the court scene). Oaths have almost been completely removed from court procedures. Litigants or witness are usually not met by court officers giving them information on their procedure and/or court life.
In Italy access to justice programmes are limited to legal aid (for which see "Answers" to the CCJE's questionnaire handed out in 2004). Free legal counsel is in some cases provided by local administrations, family support centers, charities, etc. As for direct access to the judge for petty claims, in Italy the need to employ a lawyer is waived only in some statistically irrelevant civil matters (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 very narrow monetary competence of that judge; 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). No actions seem to be foreseeable in this field to widen the scope of personal appearance of citizens before courts.
C. THE RELATIONS OF THE COURTS WITH THE PUBLIC
i. DIRECT RELATIONS OF THE COURTS WITH THE PUBLIC
C.1. Please provide detailed information on programmes with the above mentioned objectives, being carried out or planned in your court system:
C.2. Please describe who takes part in such programmes.
In Italy courts are still reluctant to have direct relations with the members of the general public who are not involved in proceedings. The passive role of courts in the public arena is still the dominant model.
ii. INDIRECT RELATIONS OF THE COURTS WITH THE PUBLIC - JUSTICE AND THE MEDIA
C.3. Please describe existing restrictions to the right to information in the field of judicial (civil, administrative, criminal) activity. Please describe the norms concerning secrecy of judicial investigations and/or other norms preventing dissemination of information on the development of a judicial case (e.g. secrecy of witness depositions, of filing a civil party suit within a criminal case, etc.). Please clarify at what stage in proceedings judicial information may be made public. Please also say if there is law or court practice preventing dissemination of names (or pictures) of persons involved in the case (parties, witnesses, public prosecutor, investigating judge, trial judge, etc.).
As to criminal judicial activity, the Italian Code of Criminal Procedure (artt. 114 and 329) introduces a distinction between the discipline of secrecy of acts and the prohibition of dissemination of their content.
It is absolutely prohibited to publish acts covered by secrecy (acts of the public prosecution office and of judicial police, until the moment when they may be made known to the person under investigation, at the latest when preliminary investigations are declared closed); such prohibition extends both to the text and the content, even if in outline or summary.
Acts not covered by secrecy are not to be published according to a prohibition rule that becomes gradually more permissive as the rationale of prohibition becomes less relevant, such rationale being that the judge may learn of investigative action only in the limits allowed by the adversarial system of procedure in force in Italy.
At any rate, dissemination of the content (not the text) of acts that are not (or are no longer) secret is always permitted, in view of the needs of public information. Therefore there is no equivalence between possibilities to learn about acts of the criminal proceeding and the possibility of their dissemination.
As for acts covered by secrecy, according to current interpretation the absolute prohibition of dissemination concerns only the investigative acts, not the historical fact that translated into a such acts (e.g., it is not possible to publish the content of the deposition of an eye-witness before the public prosecutor, but journalists may publish what they learn directly from the witness, if the deposition has not been declared secret - see below). As for detention, since arrest of a person under investigation is known to the person, it is likewise not secret.
The public prosecution has powers to introduce variants to the relevance of secrecy of investigative acts: when this is needed for the continuation of investigations, the public prosecutors may allow - by way of deposit at the secretariat of the prosecution office, with availability for the public - dissemination of acts or parts of them. Correspondently, even when acts are no longer legally secret, the public prosecutor may order absolute secrecy of acts (either with the consent of the accused or when knowledge of the acts may jeopardise investigations concerning other persons) or may prohibit publication.
During the criminal trial, acts relating to the judge's dossier may not be published up to the decision of first instance; acts inserted in the prosecution's dossier may not be published up to the appeal decision, unless they have been used to challenge a witness's deposition.
If the criminal trial takes place behind closed doors, in the case provided for by the law, prohibition may become absolute, but it ceases when publication is allowed according to the law on access to State's archives or after ten years from the decision, if the Ministry of Justice so allows.
In any case, publication of data and images of juvenile witnesses and civil parties is prohibited until they become of age. In the interest of the juvenile, the Juvenile Court or the juvenile him/herself if of at least 16 yrs of age, may authorise publication.
In the civil and administrative trials, both the hearings and the documents are confidential; the discussion hearing, when it is not waived, is public; the decision is public.
For all kinds of judicial decisions, upon request of a party or by his/her own motion, the judge may order that, if published, the personal data of the parties be omitted to protect privacy and dignity.
C.4. Please provide any information you deem useful as to the implementation of:
C.4.1 The Convention for the Protection of Individuals with regard to Automatic Processing of Personal Data (ETS No. 108);
C.4.2. Recommendation Rec(2002)2 of the Committee of Ministers to member States on access to public documents;
C.4.3. Recommendation Rec(2003)13 on the provision of information through the media in relation to criminal proceedings.
Although Italy was quite late in comparison with other Western European countries in adopting a complete privacy discipline, since the mid-1990's important legislation has been enacted, which fully responds to the needs relevant for points C.4.1. and C.4.3. Please also see answers to question C.3 above as to discipline of information in relation to criminal proceedings (artt. 114 and 329 Code of Criminal Procedure). The complete discipline is now enshrined in a "Personal Data Protection Code" (Legislative Decree n. 196 of 30 June 2003). Please find appended the Italian text (annex no. 1) and the English translation (annex no. 2).
The provisions of the Code relevant for the subject matter of this questionnaire are sections 21-27 (concerning data processing), and 46-52 (concerning judicial data). Please also refer to sections 53-57 as for data regarding police activities and section 95 as to use of judicial data for educational purposes. The Ministry of Justice has not issued yet an implementation decree provided for by the law, concerning data treatment in the field of justice.
Sections 136 and following concern the journalistic activity in the field of justice. The law makes reference to the Code of practice for Journalists, which is also appended (references of the Code of practice are to the basic law now consolidated into the Privacy Code - a table of correspondences is provided in the Italian text).
As for access to public documents, the relevant law (n. 241 of 7 August 1990) was recently updated by a final deliberation of Parliament on January 26, 2005. Such amendments, however, are not in force as yet, as the bill has not been signed yet into law by the President of the Republic and has not been consequently published on the Official Journal. Please find appended the Italian text of the law and of the amendments as approved by Parliament (no English text available).
C.5. What are the procedures, if any, that guarantee access to information and access by journalists to court hearings and judicial files? Please make appropriate references to existing regulations on this matter. Do courts have spokespersons? Are they judges? Are judges allowed, by regulations and/or by deontological rules, to make statements to the press? If so, under what circumstances?
Please make reference to the answer above, as to relevant legal discipline of this matter. Only few public prosecution offices, and not the courts themselves, have spokespersons. Art. 6 of the Ethical Code of Italian Judges and Prosecutors reads as follows:
"In contacts with the press and other media, the judge or prosecutor does not request dissemination of news concerning his or her institutional activity.
When not bound by secrecy or confidentiality on information learned for official reasons, if he or she deems it appropriate to release information on judicial activity in order to guarantee a correct information to citizens and the exercise of the right of public information, or to protect dignity and reputation of citizens, the judge or prosecutor nonetheless avoids to create personal reserved or privileged information liaisons.
With safeguard of full freedom of expression, the judge or prosecutor releases declarations and interviews to the press and other media following criteria of equilibrium and moderation".
The High Council for the Judiciary has made reference to these rules that Italian Judges and Prosecutors have created for themselves (as such, not binding) in the Council's regulations concerning this subject and disciplinary action, so as to avoid the imposition of external rules.
C.6. Are television cameras allowed into the courtrooms? If so, what rules should govern the broadcasting of the recorded TV images in order to prevent the risk of manipulation?
In conformity with art. 147 of the Implementation Rules appended to the Code of Criminal Procedure, in order to guarantee the right of public information, the judge may, if the parties (public prosecutors, accused, civil party, etc.) allow, authorise in full or in part photographic, phonographic, audiovisual taping and/or radio or television broadcasting of the public criminal trial, if this does not jeopardise a tranquil carrying out of the trial and of the decision.
Authorisation may be granted even without consent of the parties, when a relevant public interest to knowledge of trial exists.
Even when taping or broadcasting is allowed, the judge forbids taking images of parties, witness, consultants, interpreters and any other person that do not consent, or if law so forbids.
No taping or broadcasting may take place for trials that are dealt with behind closed doors.
C.7. In the light of national law and case-law, please describe criminal and civil implications of libel, slander, and/or similar violations of a person's reputation. Please give information about penalties provided for by law or judicial practice, as for criminal law, with special reference to violations committed by journalists. Are there different thresholds for responsibility, e.g. for public figures and for private individuals? If so, is there, however, protection for private life of public figures, and under what circumstances?
According to Art. 594 of the Italian Penal Code, whoever offends the honour or dignity of another person, in his or her presence or by personal writing directed to that person, is liable of imprisonment up to six months and a fine up to 516 Euros, penalties that are doubled if the offender attributes to the person a specific fact.
According to Art. 595, if an offense to reputation is done by communicating with more persons, the violation is punished by imprisonment up to a year and a fine up to 1032 Euros, penalties that are doubled if the offender attributes to the person a specific fact.
If the violation is committed by the use of the press or other media, or in a public deed, imprisonment ranges from six months to three years and the fine is not less than 516 Euros.
According to Art. 596 bis, if the violation is committed through the press, such penalties are also applied to the person responsible for the publication.
One should keep into account that, under Italian legislation, the judge may discretionarily grant a general sentence discount up to one third of the penalty; that sentence discounts may be granted in case a simplified trial is accepted by the accused; that, in addition, penalties up to two years imprisonment may be suspended for first offenders, and cancelled if no violation occurs in the following five years.
The above penalties leave the civil party the right to ask for full compensation in a civil suit, that may also be dealt with within the criminal trial.
C.8. What degree of professional diligence and integrity is requested from journalists? What criteria govern the distinction between lawful and unlawful acts, if the information provided is false? Are there differences between facts reported as such or the uttering of mere opinions? Is the fact that information comes from a qualified source (e.g. a police officer) an element that permits disclosure in any case or at least exempts the journalist from verification? What precautions are requested in the broadcasting, e.g., news concerning provisional arrest of a citizen on the basis of criminal charges? Do police officers and/or prosecution offices and/or investigating judges hold press conferences? If so,what are the procedures?
Journalists that disseminate information abstractly offending a person's reputation may be exempted from responsibility, in view of the right to information and public criticism, if the facts are true, and if their knowledge is relevant for public interest and the expressions used are measured and pondered. The criterion of truth of information may be substituted with apparent truth, if the journalist has verified the news according to professional diligence. As for interviews, truth of the facts may be substituted with truth of the declarations, if the interviewed person is a public figure (that will answer personally of the violation) and if the interview does not show that the interviewer participated indirectly to the violation; if the interviewed person is not a public figure, there will be no exemption and the interviewer will be held responsible if the interview is published.
The public nature of a source of information does not in general exempt journalists from verification, especially if the public source is violating secrecy or confidentiality rules.
Police officers and public prosecutors hold press conferences.
Please see the personal data protection code as to limits to journalistic coverage of arrests and the like.
C.9. Please provide information as to the amount of compensation afforded by courts to the victims of the above violations. Are there established criteria? Do such criteria depend on the social status of the person in question?
There are no established criteria. Legal doctrine provides comparison among the amount of damages awarded by the several courts.
C.10. What is the legal regime of rectification of inaccurate information? Is spontaneous rectification such that criminal liability is excluded, or compensation diminished?
Whereas rectification of inaccurate information is an ethical obligation of the journalist (see Code of practice), rectification as such does not exclude liabilitity, since the damage has already taken place and, at most, it becomes less important so that compensation may be diminished.
Some observers advocate a relevance of rectification to excude criminal prosecution, or even to be the only remedy for violations (so as to eliminate compensation). Public debate is quite important on this topic.
C.11. Please describe protective measures available, respectively within criminal and civil procedures (e.g. seizure of publications, order not to distribute a book, etc.). Are there measures in your system that are or might be considered as a form of preventive censorship? Is there a role for the executive branch in supervising the media?
There are no measures that may be considered as equivalent to preventive censorship. In order to start a periodic publication, one only needs to register at a Court office, with no intervention of the Executive Branch.
"Ex post facto" (i.e. also between the printing and the distribution of a publication), both the criminal and the civil judicial authorities may order seizures or may issue protective orders, with full right of defense within contradictory procedures.
C.12. In the event that a judge or a court is attacked by the press for reasons connected with the administration of justice, is there a role for the Judicial Service Commission and/or judicial associations? Is the judge bound by a duty of discretion even if a press campaign has been started attacking him or her?
The Italian High Council for the Judiciary holds that its constitutional competences include, in order to protect judges' and prosecutors' independence, the possibility to adopt resolutions declaring that an attack to the judge or prosecutor (coming from the press or from any other actor on the public arena) violates judicial independence. A number of such resolutions (so called "protective declarations" - It. "pratiche a tutela") have been adopted.
The High Council holds that the duty of discretion is less strict if the judge or prosecutor reacts to a campaign; however, a reaction by the Council itself is deemed preferable.
The Italian Judges' Association, performing its obligation to care for its members' professional interests, also reacts in cases such as the ones mentioned.
D. ACCESSIBILITY, SIMPLIFICATION AND CLARITY OF THE LANGUAGE USED BY THE COURTS IN PROCEEDINGS AND DECISIONS
D.1. Due to the fact that most of the problems involved are of a theoretical nature, delegations are only requested to describe the prevailing attitude in the national legal community about conciseness of judgements (e.g., in some countries, judges believe that very short judgments reinforce the authority of the judgement; in some other countries, judges feel obliged, or are obliged by the law, to adequately explain in writing, for example, the criteria and calculations adopted to award damages or to make orders related to costs).
The Italian legal community is still accustomed to rather lengthy judgments, due to tradition and the level at which the "reasoning" of judgments is guaranteed: the Constitution itself (art. 111) provides for all judgments to be reasoned; judgments may be attacked before the Court of Cassation for defective reasoning, e.g., in the civil sector (art. 360 n. 5 code of civil procedure), concerning any relevant step of the decisional process, both raised by the parties or to be examined "motu proprio" by the judge.
Judges are, or at least feel, obliged to explain in detail, e.g.:
- in the civil sector, not only to explain why they believe that a certain version of facts to be assessed is the true one, but also why a different version is not plausible;
- in the civil sector, the way to calculate the amount of damages (for example, for personal injury) to be awarded, distinguishing the amount to be awarded for each component of damage (personal damage "stricto sensu", non patrimonial damage, loss of wages, expenses, etc.) and the method to assess each component, even if this method is standardised in reference to court practice;
- in the criminal sector, when a temporary arrest is to be decided, to evaluate the penalty that may be be pronounced in the merits, and state why a probation is not likely to be granted; to evaluate on which concrete grounds the accused is likely to escape, to commit a similar crime, or to alter evidence if left in liberty;
- in the criminal sector, when a final judgment is given, to explain what theoretical penalty is the basis for calculation of penalty, what circumstances are evaluated to lower or raise that penalty, what lowering is then applied for plea bargaining, and the like; if continuation between more crimes is affirmed (so that a cumulative sentence is given), to state also which penalties would theoretically be pronounced if such continuation was not existing; etc.
Obligation to state detailed ground for decisions concerns also protective measures, temporary orders, and the like.
It is still not customary to affirm principles of law by just quoting the relevant law or judicial precedent, since judges feel that it is necessary to state what the content of the principle is. Reasoning by "attendus" is rarely used, and only for minor decisions.
However, both the law (e.g., artt. 132 n. 4 and 281 sexies of the code of civil procedure) and actions of the High Council of the Judiciary (e.g. through training actions) have tried to stimulate a more concise drafting of decisions.