CM/Inf/DH(2005)31 2 June 2005
Fourth annual report on the excessive length of judicial proceedings in Italy for 2004
Document prepared by the Italian delegation
1. With Temporary Resolution ResDH (2000)135, adopted on October 2000, the Committee of Ministers of the Council of Europe decided, among other things, to apply a constant monitoring to the structural problem of the excessive duration of proceedings in Italy < until the reform of the Italian judicial system becomes fully effective, and until the reversal of trend, at the national level, is completely confirmed>, concluding to carry out such monitoring, <at least annually, in light of a complete report presented every year by the Italian Authorities>. The last report examined by the Committee of Ministers was the Third report, which covered the period up to the end of 2003; the same was examined on June 2004, instead of the previous April, in as much as an integration of informations was necessary. In fact – with document dated July 2004 – the Committee of Ministers' Secretary acknowledged to have examined the above mentioned Third report, and to have, for the first time, noticed a slackening of the precedent trend towards the reduction of the average length of proceedings; the document substantially mentioned a light <increase of the average length of proceedings, notwithstanding the numerous and complex measures carried out by Italian Authorities, especially during these last five years>. At the same time, the document pointed out some problems, which – according to the Secretary – decreased the effectiveness of the above said adopted measures, and concluded with a solicitation to furnish precise answers, in relation to the underlined crucial aspects, and the proposition of a real “action plan”, on the occasion of the following meeting on April 2005, underlining the possibility for the Committee of Ministers, in case of non-answer or inadequate answer, to foresee a series of specific measures inclined to support Italy to guarantee the respect of the obligations under the Convention. In particular, there was, as explicitly requested by the Secretary, the necessity of finding a consistent and systematic strategic plan having three main subjects: a) the identification of specific problems which are at the origin of delays of the justice (especially of civil and criminal justice); b) the choice of measures (already prepared or being prepared) apt to solve them, with directions for foreseeable times for their realization or predisposition (according to whether they are prepared or not); c) the times within which said measures, made coherent according to a precise strategic line, should begin to produce initial results.
2. The Permanent Mission of Italy to the Council of Europe, as collector of data and information received by the different sectors of the Department of Justice, has prepared the following report intended to make explicit, to the Secretary, the situation related the previous year and to provide, at the same time, data and information suitable to constitute the basis for an answer, as exhaustive as possible, to the issues raised by the Secretary himself.
3. The starting-point is constituted by the statistics of the previous year (2004) compared with the previous ones (from 2000 onwards). A constant fact is the almost general and progressive increase of proceedings defined from 2000 onwards (as proof of resources' efficiency, both in terms of staff and equipment, employed in the justice service).
In particular, with regard to the average proceedings' timing1, we can point out in general an improvement of the situation concerning, both the civil and the criminal contexts, the Jurisdictions of first instance, while we notice a light distress for the Jurisdictions of Appeal. In order to be able to have an opinion on the reasons for such situation, we can make the following remarks:
A) the improvement, noticed in the Jurisdictions of first instance, could be attributed to the new jurisdictional roles and to the procedural amendments, created in the last years, in order to consent a swifter action. With the institution or the operating, in full regime, of only one Judge and the Justice of the peace, in fact, both in Civil and Criminal Justice, proceedings that are not particularly complex are pleaded by only one judge, which had enabled to release considerable working energies. In particular, we point out that in Civil cases more than 80% of the judicial actions concerning the road traffic (very numerous in percentage terms) are judged by the Justice of Peace, as well as the sole Judge covers almost all the remaining proceedings, since the reserve of group ruling remained only for more delicate subjects. In Criminal Justice, the introduction of the Justice of Peace and the sole Judge is much more recent (end of '90s, beginning of 2000), however it's already producing good results. In the criminal field, it is then necessary to take note of the extreme valorisation of shortened judgment (article 438 and subsequent ones of the Italian Criminal Code Procedure), occurred after 2000, in virtue of which the competent preliminary hearing Judge, at the request of the defendant, can decide, on the basis of the documentation at hand (therefore without trial) or with a very brief trial, also very complex cases, without limitation of offence or penalty. From the same point of view, it is also necessary to report the legislative amendment – put into effect in 2003 – of art.444, Italian Criminal Code Procedure, on basis of which it is possible to negotiate sentences, up to five years of imprisonment, including the reduction of a third of the normal sentence ( the previous limit was two years)2. In such situation, the help derived from the throw out sections, made up by lay magistrates (such as the Justices of Peace), which – both in the civil and in criminal sectors – have at least contributed to relieve the professional judges from the old work burden, allowing them to devote themselves to more recent contentious proceedings (resulting in an encouraging active balance of the defined procedures);
B) On the contrary, the Appealing Jurisdictions are, perhaps, affected by the following factors: a) first of all, the Courts of Appeal, composed by three Judges, must make a judgment on the contests concerning the issued judgments - as we said - essentially by only a Judge and, probably, such asymmetry, between monocratic Courts of first instance and a group of judges of the Court of Appeal, could be suitable to determine a slaw down during the appeal procedure; b) furthermore, the entrustment of a large slice of trial problems to lay magistrates, if in one hand it had a simplifying and swifter effect, on the other it has produced, in many cases, not fully examined judicial pronunciations, therefore needing corrections by the Superior Jurisdictions (entailing an additional work in terms of amended judgments); c) lastly, we should not forget that the Courts of Appeal are competent for domestic remedy, so called Pinto Law, and such remedy has inevitably burdened the system without removing the consequences of the already constant violations and preventing others. This being, probably, also because of the high standards of compensation, imposed by the European jurisprudence, which renders it highly appealing (we have found out paradox cases in which the compensation, due to the length of proceedings, was considerably higher – also up to 10 times - than the petitum of the main action). In order to connect, at least partially, such domestic remedy to the length of proceedings, we must consider the so called Pittelli Bill, introduced to the Parliament on 7.11.02, amending rules of the so called Pinto Law. The aim is both to make a connection between proceedings' accelerating instruments and a mechanism of repair, and to avoid claims for damages formulated by those who didn't maintain, during the proceedings concerned, a behaviour showing a will to obtain a decision as soon as possible.
4. The Administrative Justice takes note, for its part, that light but significant improvements in terms of efficiency of what the justice service has to offer: in the presence of an almost constant number of applications, we must notice an increase of defined proceedings, both during the discovery and injunction stages. Since the percentage of appeal judgment appears to be very low and that of the appeal reformed judgments appears reduced, it follows that a good 92% of administrative cases are resolved in first instance. The proceedings' accelerating models, introduced by the art. 4 of law n.205 dated 07.21.00, have, then, permitted, during 2004, to close within the year at least 12% of proceedings.
5. Having stated such analysis of the phenomenon resulting from last year's data, we have to take note of the strategic guidelines, underlying those which the Secretary himself admits being the considerable and numerous prescribing rules' efforts of the Italian legislator, in order to resolve the structural issue of proceedings' slowness. The strategies and the action plan are divided by subjects:
A) Proceedings on the subject of company law and financial brokerage. These are for which we decided to create, with Law of 2003, a kind of procedural laboratory, foreseeing a new trial model, which should eventually be extended to other procedures, in cases it would give good results on company matters. Substantially, we introduced a trial model similar to the one in force into the systems of common law, that is the case management, the essence of which is in fact that the judge directs the case towards the path that is mostly proportionate to its complexity, and moreover he checks and leads the development of the trial, adopting any measure apt to pursue the major aim. For the rest, the procedure unfolds between the parties with an exchange of appearances, memorandums, replies and documents, which determines a shorter time before the judge and lower costs for the service of justice.
B) Bankruptcy proceedings. The most recent law decree n.35 of 03.14.05 introduced, in the art.2, a series of amendments concerning the bankruptcy institution, in particular: a) leaving out, in the bankruptcy revocatory action, a series of documents being produced, before bankruptcy, by the debtor (individual entrepreneur or company), and aiming to save the firm and to overcome the company's crisis; b) the reformulation of institutions, substituting the bankruptcy (pre-emptive composition, arrangements concerning debt rescheduling), which aiming to support the firm in serious financial difficulty with solutions of debt discharge and avoid bankruptcy. Such amendments aim to support alternative solutions instead of bankruptcy procedures, the latter being certainly longer and less satisfactory (in economical terms) for debtors and creditors.
To such legislative provisions we need to add: c) the amendments, we already mentioned in the previous annual report, concerning speeding up the procedures of assets' sale; d) the bill AS 1243, on the subject of bankruptcy reform – already taken into examination by the Parliament and further on recently amended –, which foresees times reduction of bankruptcy procedures, the remodulation of powers of bankruptcy organisms (official receiver, Bankruptcy Court, receiver), the abrogation of many personal restrictions for the bankrupt.
The strategy, underlying the above mentioned legislative measures, aims, first of all, in the case of company's crisis, to avoid the bankruptcy by supporting alternative solutions; if the bankruptcy is unavoidable, the relevant procedure is simplified and rationalized as much as possible.
C) Civil Justice. The most recent law decree of 03.14.05 n.35 has introduced, always in art.2, also several amendments to notification's formalities of judgments, orders, subpoena of witnesses, foreseeing the employment of new and more efficient technological instruments (telefax, e-mail): furthermore it has reformulated the discipline of notifications by mail, in civil and criminal proceedings, introducing precise rules on the subject of knowledge presumption of judicial acts sent by mail.
The above mentioned provisions should be completed with the strategic development of telematic civil proceedings. The project consists on the realization of computer devices and technological infrastructures as a whole, which make the civil computer system available by web, both for the deposit of documents and for reading activities regarding the state of actions and the electronic file; furthermore we also have made available the transmission of communications, notifications and documents copies, from judicial offices to the involved persons, by electronic means.
The realization of the project aims at:
° allow the reading, at a distance, of registries and documents included in the electronic file;
° allow the request of document copies at a distance,:
° allow the telematic transmission of documents, by attorneys and judge assistants, and their automatic admission in the register and in the file.
° allow the telematic forwarding of notices regarding completed proceedings;
° allow telematic registry and transcription of judicial procedures;
° to reduce the duration of proceedings through the administration of this and of the office in general;
° to reduce the “going through” times, meaning the necessary time for the transferal of documents, both from one office to another and between offices and outsides subjects. Furthermore the introduction of the electronic file reduces the time inside the office itself as well;
° The realization of the applicants' duties in the action.
° an improvement of the management of the Civil procedure through the elimination of “going through” times, with a consequent reduction of the proceedings duration up to 6 months;
° acceleration of cases of at least 20%;
° a 30-40% recovery of efficiency regarding registries' services;
° a re-qualification and rationalization of personnel utilization, as an indirect consequence of the decrease of window activities and of simple registration of data into the registers;
° a rationalization and acceleration of notification time, with an average decrease of 10 day for notification;
° an improvement of the availability and of usefulness of all events concerning a case and of the documents related to it, with indirect benefits on time of procedures, estimated about 5 months;
° simplification in the organization of archives and saving on costs related to paperwork's preservation;
° diffusion of the knowledge of jurisprudence on the merit and possibility to compare decisions concerning damages liquidation with consequent decrease or elimination of “explorative” cases;
° increase of the cooperation between judicial offices and outside applicants.
The underlying strategic line is to utilize the new technologies for reducing to the maximum dead times, which characterize many civil actions, due to dysfunctions or loss of economic resources (let's think about the postponements requested by one part to examine memorandums and documents deposited by the other part or to study documents presented by an expert or files of another case connected to it or to notify a document).
The results could be seen in not less of two-three years when the system will be largely known and publicized, and will therefore go in full regime.
In the hypothesis that the positive results would be inferior to the expectations, one could study more radical solutions, not last those that would involve some procedural institutions foreseen by the Work Justice (which knows more rigid preclusions for tests requests) and in Company Justice ( described sub5A).
On the footsteps of filtering activities carried out by the Seventh Criminal Section of the Court of Cassation, in virtue of Law 128/01, we are preparing a similar system for Applications presented to the same Court for civil actions. Substantially, in order to lighten and rationalize the work burden of Civil Cassation, on the initiative of the Supreme Court itself, we will organize a kind of section entrusted with throwing out the applications clearly inadmissible, before they are transformed in dusty files destined to lie on judges' tables for years before they can be examined and thrown out.
D) Enforceable proceedings. The average stay registers a light worsening in comparison with the data of 2003. The examined solution rests in the Bill 2430/S, already passed by the Chamber of Deputies on 07.16.o3 and conveyed to the Senate on 07.23.03.
E) Work and Family Law. The available absolute data, compared to the data of the preceding years, appear to be physiological therefore not a source of preoccupation.
F) Criminal Justice. As already anticipated at the above point 3A, the strategic line followed so far, which is giving good results, articulates itself on two major points: the multiplication of professional energies with the assignment of competence for many offences to the Justice of Peace or to the only Judge, as well as the policy to favor and incite the alternatives rites, whereby one decides essentially on the documentation at hand, without trial. Such strategy is certainly of a medium-long term. A reference should also be made for the so called Cirielli law project already approved by the Senate and under examination by the Chamber which, by reducing the times of prescription for those having a clean record, aims also to reduce the time of the pertinent procedures.
In the hypothesis that the positive results will be inferior to expectations, the possibility of parallel initiatives should not be excluded, which have already been discussed in ad hoc conventions which would accompany such strategic lines: for example, the annulment of article 415 bis of p.p.c., which should be substituted with a more penetrating presence of the defense during the phase of preliminary discovery and with the reintroduction of the obligation to interrogate the inquired3.
The new notification discipline, describe at point 5B, could moreover avoid postponements attributed to a failure of documents' notification, such as, always in such optic, a reflection could be made on the possibility to extend to all trial phases the modality of notification foreseen for the Supreme Court appeal by art.613 par. II of the p.p.c., which would entail minor costs and the guarantee of the good outcome of the notification. This treats, however, delicate subjects because one should not forget the fact that the dimension of justice, with which every reform should confront itself, are given by three factors time, costs and accuracy, without forgetting in any case that the dimensions of time, costs and accuracy in treating cases do not exist isolately but are correlated among themselves. Which means that time is solely one of the factors to be considered and that if an excessively slow justice is not an efficient justice, a summary justice is not efficient either.
6. In any case, the exorbitant duration of the procedures is not exclusively connectable to inadequate or imperfect laws or to formalistic guarantees, but also to a judiciary organization which does not respond to management criteria. Some admirable exceptions are a proof of that, and are constituted by judiciary departmental sectors which characterize themselves for their efficiency and productivity, thanks also to the implementation of protocols of best practice, to the realization of the procedures, to the institution of negotiating tables with lawyers who constitute an essential counterpart from which one could not prescind, if one wants to make discussion about a better organization of the judiciary task. This is mentioned also in the documents of the Secretariat dated July 04, which cites as laboratories of judiciary efficiency some departmental sectors( such as the Court of Turin with the so called “Strasbourg Program”). Even the Superior Council of Magistrates, the day after the constitutionalisation of the principle of reasonable duration of proceedings (1999), Intervened with two deliberations respectively adopted on 9.15.1999 and on 7.6.2000 with which it has intended to stimulate the managers of the judicial offices and the single magistrates to take a conscience necessary to implement a different organization of the judicial work, in as much as it could be consented by the available means and structures. In light, in fact, of such consciousness a brief visit could surely have an enormous and an important interest, which is programmed for the end of April next, of some members of the Superior Council and of the Scientific Committee to the European Court and Council of Europe in Strasbourg. As far as the evolution of the Italian jurisprudence is concerned, on the subject of interpretation of domestic norms, in light of the jurisprudence of the European Court one should take note of the tendency which is quickly establishing itself in the justice chambers, according to which the domestic judge an obligation to interpret, research and apply – among several possible interpretations of a national norm – that which is more compatible with the Convention and with the interpretation that the Court has of it. Such modus operandi also could be a dowel in the complex mosaic of time adaptation of the Italian justice to European standards. It is in this sector that experimentally one could insert, on the basis of understandings to be studied on the occasion of the above mentioned visit a collaboration with the Italian Mission to the Council of Europe, which could periodically indicate the temporal parameters of the procedures considered by the European Court compatible to the Convention. Such indications could constitute the objective on which to apply a work method, a new organization of the judiciary structure, and a more rational management of the personnel.
7. Worthy of note is also the meeting solicited by the permanent mission of Italy to the Council of Europe which took place at the Presidency of the Council of Ministers in Palazzo Chigi, on March 7th last, to which participated all the Authorities engaged in the resolution of the problems put forth by the jurisprudence of the European Court. Among the arguments to be discussed there was also the excessive duration of the judicial procedures. One of the proposals emerging from the debate was to put the subject to examination – of a “scientific” character and developed in a prospective of cooperation instead of supervision – of CEPEJ ( European Commission for the efficiency of Justice), in order to consent the emerging of point on which to reflect that are of interest from the strategic point of you.
8. In conclusion, within that some sector of the Italian Justice, considering the physiological times of case definition, could be for the future excluded from ulterior monitoring (e.g. nn. 4 and 5 E); for the remaining the whole strategies put into being at the normative and concrete operative levels seem to be of a medium-long term, for which an ulterior check is requested and realize at least within to 2007.
Note 1 The average length is given by the following formula: initial pending proceedings + final pending proceedings, divided by supervened proceedings + defined proceedings, with the final product multiplied by 365.
Note 2 Also in this context, we have to mention Law n.14/99 which – amending art.559 of Italian Criminal Code Procedure – had simplified the negotiation of the Appeal sentences.
Note 3 The conclusion notice of the preliminary discovery, in fact, would extend the times without appearing particularly useful for the inquired, since he would in any case have the possibility to examine the trial protocol, and to propose discharging proofs before the hearing, depending on the offence, before the only Judge or before the Judge for the preliminary hearing.