Strasbourg, 5 February 2008
Consultative Council of European Judges (CCJE)
Questionnaire for 2008 CCJE Opinion concerning the quality of judicial decisions: Reply submitted by the delegation of Italy
Part I: Preparation of the judicial decision
Is there a specific model to be followed in drafting judicial decisions?
No, there is no specific model in Italy to be followed in drafting judicial decisions.
Italian civil, criminal and administrative procedural laws conform to the principle of substance prevailing over form. Therefore, although the law may require that judicial decisions (especially in the criminal sector) should contain some elements, the appreciation of the content and the legal import of a decision is left to the parties and enforcement authorities, through further court intervention if necessary.
Based on the law and tradition, judicial decisions are classified into several categories. The main subdivision is among sentences, ordinances, and decrees (a classification which is well known in almost all European systems, from which a number of legal consequences stem out, e.g. the final nature of the decision, the possibility to appeal or to petition for reconsideration, the need that reasoning be provided by the judge, etc.). Other relevant subdivisions concern partial, interlocutory, and definitive judgements; provisional (protective) and final decisions, etc. As a rule, even the classification given to a decision by the judge himself/herself is not binding, as the substance of the decision (or the actual request of the plaintiff) will determine the legal regime of the decision.
The codes of civil and criminal procedure establish what the ordinary content of a judgement should be; then some alternative drafting modes are left to the parties and the judge. Both in the civil and the criminal sectors (see arts. 132 code of civil procedure and 546 code of criminal procedure), the “ordinary” judgement will necessarily contains the identification of the judge, the parties and their attorneys; the charges brought against the defendant (in the criminal sector); the findings of fact and law that parties propose for adjudication (“conclusions”); a “concise” account of the proceedings’ development (especially in the civil sector), as well of the findings and reasoning of fact and law that support the decision; the “dispositive part” of the decision (or decision proper); the date and the signature(s) of the judge(s). In the criminal sector, the code even requires specific indication of the articles of law having been applied, as well as – within the reasoning - of the evidence supporting the decisions and the grounds on which the judge deems that contrary evidence is not credible.
In the criminal sector, the decision is issued right after deliberation; whereas ordinances are immediately issued on record, if an immediate drafting of the full final sentence is impossible due to complexity of reasoning only the “dispositive part” of the decision is immediately made public, and the judge may reserve to draft the reasoning within 15 days (or, in exceptional cases, in a delay that has to be announced by the judge, not exceeding 90 days).
In the civil sector, the ordinary procedure provides that the decision is taken in chambers, and that both the “dispositive part” and the reasoning are made public at the same time within 30 days (a delay which may be in practise prolonged); in labour, home lease, road traffic accident and road traffic fines litigation, the judge has to decide immediately after discussion by issuing in the hearing the dispositive part of the decision, and then making public reasoning after a short delay. A reform of 1999 introduced a new provision (art. 281-sexies) in the code, allowing the judge to bypass the delays prescribed in the ordinary procedure for briefs allowed to the parties and then for the drafting of an ordinary sentence by the judge him/herself: if the judge so orders, the parties are required to discuss orally the case in the same hearing, and then the judge may decide by reading the “dispositive part” of the decision as well as a “concise” account of the reasons in fact and law of the decisions, that become part of the proceedings’ records. This avoids drafting the sometimes redundant parts of ordinary sentences, such as the full identification of the judge, the parties and their attorneys; the findings of fact and law that parties propose for adjudication (“conclusions”), that may be already read in the minutes, as well as the (often very laborious to be drafted) account of the proceedings’ development. This “shortened” drafting procedure has in some way aligned Italian decision writing to other countries’ experiences (e.g. the French “attendu” style of drafting), but unfortunately this drafting model has a very narrow scope , being applicable only for some civil cases, and requiring the judge to immediately draft the “short” judgement, a lack of flexibility which makes resort to it quite limited. An even more concise approach has been adopted in the procedure concerning commercial corporation and financial instruments litigation, where the model of art. 281-sexies is reiterated, with two innovations: the court may avoid accounting for factual points just by making reference to those points as established in one or more memorandum drafted by the parties, and may avoid stating principles of law by making reference to precedents (art. 16 co. 6 Legisl. Decree 17 January 2003, n. 5). Once more, this model has a very narrow area of application. The judiciary would probably welcome a generalised applicability of it.
Other that the above, models of decisions in Italy derive from tradition.
A bill pending in Parliament, introduced by the Executive within the framework of a wide-scope reform of civil procedures, provides for a general suppression in judgements of the account of the proceedings’ development (see above).
Can each individual judge choose his own style of drafting his decision?
Within the legal framework, in theory each individual judge can choose a drafting style. However, drafting style is somewhat uniform due to legal traditions. The somewhat strict criteria developed by the Court of Cassation as to sufficiency of reasoning (being possible, in Italy, to attack a judgement if reasoning (not the decision in itself, for some violation of the law) is insufficient or contradictory, even with the possibility for the Court to order a judgement in remand to have reasoning re-drafted) also contribute toward a rather uniform, somewhat lengthy and verbose style of drafting.
Where the court is composed of more than one member, do judicial decisions have to be taken unanimously or a majority decision is equally effective and binding?
Decisions are taken by the majority of the judges of the panel, and no distinction is made between unanimous or majority decisions (nor is such a distinction disclosed to the parties or the public). Dissenting opinions to be made public are not provided for.
In a two or even more member panel, does the president or most senior judge have a second or casting vote?
No, votes of judges are equal. Only in some criminal cases, adjudicated by a jury composed by professional judges and “lay” judges, panels are composed by an even numbers of judges; in these cases, should a tie occur, the cases is decided in favour of the defendant.
Do judicial decisions have to deal with all points raised by the parties or their lawyers or is a synthetic or concise approach considered sufficient?
The judge is not bound to expressly deal with each single point raised by the parties, as the law considers necessary and sufficient the presentation, in a concise way, of the reasons in fact and law supporting the decision.
This having said as to theory, in practice the judge may omit consideration only of those points that are incompatible with the solution given to each question of fact or law and the arguments adopted. This makes it difficult to predict whether or not a concise approach may make clear that a point is to be deemed implicitly dealt with, and judges traditionally tend to:
a) in general, adopt a point-to-point approach;
b) as to factual findings, to state “where” in the minutes some relevant evidence is found, and to deal with all other relevant sources of evidence (see above, for the explicit provision of law in criminal proceedings); therefore, often even “lengthy” quotes of witnesses’ or experts’ depositions appear in the judgement, which further contains discussion of depositions;
c) as to findings in law, to reiterate principles of law in full, rather then just referring to precedents.
It may be interesting for an international observer to note that, e.g., in Italy:
- a criminal judgement should contain a full account of the “base” penalty imposed, and declare the reasons behind the application of a penalty between the minimum and maximum provided by the code, as well as of the calculation of the additional penalty applicable in view of continuation of the same violation; after that, separate calculations and reasoning are to be given in the case, e.g., of mitigation of penalty according to specific or “generic” circumstances (e.g., absence of criminal record); a further calculation should concern the reduction of penalty allowed as a consequence of “plea bargaining”, in Italy accessible – in general – until the formal opening of the procedure before the judge;
- a civil judgement should contain full reasoning as to criteria followed, e.g., to calculate damages deriving from personal injuries, keeping into account separate items such as patrimonial and non-patrimonial damages, and in this latter area to justify what – among the several systems possible – method of liquidation was employed, with reference to the seriousness of the injury, the duration of invalidity, the age of the injured, etc.; even in the area of awarding costs, the reasoning should support e.g. why the judge believes costs should not be recovered (and a recent provision was included in the code to this effect).
In general terms, how is a first instance judicial decision drafted? (For example, does the decision state first the factual background, followed by the evidence, its evaluation and finally the application of the legal principles to the accepted facts?)
Yes, in general judicial decisions state first the factual background, which may be intermingled with the evidence and its evaluation; the application of the legal principles follows. It is also accepted that the statement of relevant principles may come before appreciation of facts on the basis of evidence.
How in general terms is an appeal /supreme court decision drafted? Is the appeal in your country by way of rehearing the case or not?
An appeal or cassation decision is usually drafted by first stating the development of the proceeding and the decision(s) in the previous instance(s). Then each of the attacks to the relevant decision is separately dealt with.
Appeal is not usually by way of rehearing. In some instances, rehearing occurs before the lower court after a proceeding has been declared null and void by the upper court. The possibility of remand might be considered, at least in some cases, as a factor of length of proceedings.
Is there a difference in the way a judgement is drafted according to the subject matter (civil, criminal, administrative)?
Please see above.
Could you describe precisely how the decision is transmitted to the parties?
The Registrar of the court transmits, usually still by post, the “dispositive part” (decision proper) of the judgement to the attorneys, who may then access the court to have it available in full. A certified copy of the judgement, in the civil sector, may be further notified by one party to the other, in order to have a shorter delay for appeals start running.
Transmittal also takes place, for decisions rendered at the hearing, by way of reading them and inserting them into the minutes.
The law provides for electronic communication between parties and court; relevant experiences are now starting.
All final judgements of courts of any level are public (in the sense that the public may have access to them; some privacy rules apply for dissemination of names of litigants in cases involving youth and other matters – see below).
Is the judicial decision binding only on the specific litigants or does it affect the public in general?
The decision is binding only on the specific litigants (with very few exceptions, e.g. in the area of civil status). However, especially decisions by the Court of cassation are persuasive authority. In order to reinforce such authority, a recent procedural reform has provided for:
a) the possibility for the Court of cassation to rule, when a case is before it, “in the interest of the law”, i.e. to state a principle in law theoretically applicable to the case, even though the case will be dismissed for procedural reasons;
b) the need that the ordinary chambers of the Court, if they believe that a case should be adjudicated by revising an interpretation of the law by the Joint Chambers of the Court of Cassation, send the case before the Joint Chambers themselves.
Does your country acknowledge a difference in judicial decisions in personam and in rem?
This technical distinction is typical of common law, as it regards criteria to determine where to file a lawsuit, how to serve a defendant with a summons and complaint, as well as to give the court jurisdiction to try the case. Different, but not incompatible, criteria are applied in civil law countries, such as in Italy, where the law provides for those contacts between the person of the litigant (among which, the ownership of property within the jurisdiction of the court) that allow initiation of a lawsuit. For what concerns the application of the distinction to judicial decisions and their enforcement (“in personam judgment”, i.e. enforceable against the person wherever he/she is; “in rem” enforceable only where the property exists), these categories are extraneous to Italian procedural experiences (an “in rem” decision given by a court without jurisdiction, if no objection was raised by the parties, is enforceable in the jurisdiction of another court as “res judicata”).
How is a judicial decision enforced in your country? Does your country allow for contempt proceedings against a litigant who does not comply with a decision/order of the court?
Enforcement of judicial decisions is entrusted to:
- marshals (“ufficiali giudiziari”), a service provided by civil servants within the Ministry of Justice, as for civil decisions; a “judge of enforcement procedures” rules on disputes and solves difficulties that may raise in enforcement; the judiciary has no direct control over enforcement; a bill pending in Parliament proposes the introduction of “astreintes” that are – in general – unknown to the Italian system;
- the administration whose acts have been declared unlawful, for what concerns administrative procedures; in case of non compliance, the administrative judge may appoint a “commissioner” in order to remove the unlawful situation;
- judicial police and penitentiary services, as for criminal decisions.
No contempt of court proceedings are available.
Are judicial decisions handed down/announced in open court? Always or can the public/journalists be excluded - If so on what grounds?
In general, yes. Please see above for the possibility (which is almost the rule) that, in proceedings that are not criminal, decisions may be made public by the filing at the Court’s registry. Journalists’ access to decisions that are final is always possible.
To what extent do judicial decisions in your country take into account personal data protection legislation (i.e. publication of litigants’ names, other personal details etc)?
The drafting of judicial decisions suffers, “per se”, no limitation due to personal data protection reasons. Legal limitations concern dissemination of judgements (e.g., their publication in newspapers or legal periodicals, or on the internet). The law provides that:
- for some decisions (e.g. concerning juveniles), even without an order by court, the dissemination of decision cannot take place unless anonymisation is guaranteed;
- for other decision the court, upon request of a party or upon its own motion, may order that dissemination of the decision may take place only after anonymisation.
Are judicial decisions available to persons or authorities other than the litigants themselves? If so on what terms and prerequisites?
As mentioned above, final decisions are available to the public at large.
Are judicial decisions published/available on the internet? If so, are all decisions available or only appeal or supreme court cases?
Judicial decisions are widely available on the internet. A number of initiatives are underway, both in the public and in the private sector, tending toward a wider and wider circulation of decisions. Almost all of the Court of cassation decisions are available on the web site of the Court, whose Documentation Service also provides a very useful indexing and “abstracts” search engine (it was presented during the CCJE’s plenary of November 2007, on the occasion of its extension to ECHR decisions). Unfortunately, this service is not providing any longer lower court decisions’ abstracts, which will be in the future available within a network of local Documentation centres.
Part II: Evaluation of the judicial decision
Is a system of evaluation of quality of justice in force in your country?
No integrated system of evaluation of justice is currently in force. However, several projects are underway at the Ministry of Justice. A Mixed Commission has operated in co-operation between the Ministry and the Italian High Council for the Judiciary in order to measure performance of courts. The Ministry has strengthened its role of programming and control on the basis of statistics and automated proceedings. The Italian Association of Judges has devoted its Congress of 2002 to Quality of Justice. Similar initiatives have been taken by associations of staff in the Ministry and Bar organisations.
Does this evaluation include/envisage the evaluation of the quality of judicial decisions?
It may be interesting to note that a random selection of decisions, according to pre-determined criteria, has been included by the Italian High Council for the Judicial among the factors to be taken into consideration when evaluating judges.
If your country does evaluate the quality of judicial decisions by means of a specific system, could you specify the latter:
- legal basis:
- identification of the agencies that are responsible for the process:
- parameters that are evaluated:
- methods by which each parameter is evaluated:
What are the advantages and disadvantages discussed in your country as far as the evaluation of quality of justice is concerned?
In the opinion of the judiciary in your State, which factor could help to improve the quality of decisions?
No specific official statement on this subject has been issued by the Italian judiciary. The Italian High Council for the Judiciary, as well as the Italian Association of Judges have traditionally recommended an integrated approach, aimed - above all - at solving Italy’s endemic problem with length of proceedings. To that end a number of factors would help: revising the existing judicial geography; simplifying civil and criminal procedures; widening the competence of honorary judges; establishing a structure of Clerks (Referendars) to relieve the judge from inappropriate tasks [Italy is one of the few countries in which judges have no assistants in charge of their specific activities - see CCJE’s Opinion No. 6; a recent bill proposed that assistants with appropriate qualifications in law may be recruited to help judges in drafting and revising texts, researching legislation and case law]. By having professional energies taken away from inappropriate tasks that Italian judges perform as of today, an improvement of quality of decisions may definitely come out as an indirect result. Direct factors for improvement should be considered: judicial training; as well as the already mentioned provision to the judge of Clerks, if they may be involved in the drafting of easy and standardised decisions.
Is a system of evaluation of quality of each of the following in force in your State:
professional performance of police? yes □ no X
professional performance of public prosecution services? yes □ no X
professional performance of lawyers? yes □ no X
enforcement of judgements? yes □ no X
efficiency of ministry of justice services in general? yes □ no X
quality of legislation? yes □ no X
Please note that the above answers refer to the lack of “integrated” evaluation systems. Of course, professional evaluation takes place for individual members of public prosecution, police, ministry of justice services (not of lawyers). Statistics are issued concerning justice enforcement. The law provides for quality control over legislation, as well as for consistency with European law; however, there is room for improvement in this area.