CM/Inf/DH(2013)21 … 6 May 20131
Cases concerning the excessive length of judicial proceedings in Italy and dysfunctions of the “Pinto” remedy
Status of the execution of the general measures
Memorandum prepared by the Department for the Execution of the judgments and decisions of the European Court of Human Rights
This Memorandum was prepared to assist the Committee of Ministers in its mission of supervision of the execution by Italy of a number of judgments of the European Court which concern the excessive length of judicial proceedings and the dysfunctions of the compensatory remedy set by Law No. 89 of 24 May 2001 (the “Pinto” remedy) (violations of Articles 6§1 and/or Article 1 of Protocol No. 1).
This Memorandum is devoted to presenting an outline of the strategy drawn up by the Italian authorities since 2009 to remedy the structural problems that these cases raise. It was prepared mainly based on the updated information on the measures under this strategy, provided by the Italian authorities to the Committee of Ministers on 10 April 2013 (DH-DD(2013)415).
This Memorandum was prepared in order to allow the Committee to make a preliminary assessment of all these measures and to identify the issues that are still outstanding. It is also designed to contribute to the drawing up of the consolidated action plan which the Italian authorities will submit to the Committee of Ministers in response to the decision adopted upon examination of the groups of cases Ceteroni, Luordo, Mostacciuolo and Gaglione and others at the 1157th meeting (December 2012) (DH).
I. Introduction 3
II. Measures adopted to remedy the substantive problem 3
A. Measures aimed at improving the efficiency of the judicial system 4
1. Specialisation of the judges 4
2. Organisational measures to be taken by the heads of the judicial offices 4
3. Organisational measures to be taken by the judges in civil cases 5
4. Dissemination of best practices 5
5. Wider use of information technology 5
6. Assessment – outstanding issues 5
B. Measures aimed at improving the efficiency of civil proceedings 6
1. Measures aimed at reducing the flow of new proceedings 6
a. Mandatory mediation in civil and commercial matters 6
b. Introduction of legal fees for applications to review administrative sanctions 7
c. New filter in appeal proceedings 7
2. Measures aimed at expediting the proceedings 7
a. Introduction of a summary procedure 7
b. Reduction of the number of types of procedures 8
3. Extraordinary measures to downsize the backlog 8
4. Statistical data 8
C. Outstanding issues as regards the criminal, administrative and bankruptcy proceedings 9
1. Criminal proceedings 9
2. Administrative proceedings 10
3. Bankruptcy proceedings 10
III. Reform of the mechanism set forth by the “Pinto” Law 11
A. Recent measures adopted 11
B. Measures underway 12
C. Assessment – outstanding issues 12
IV. Conclusions 13
1. The first findings of violations of Article 6§1 by Italy, due to excessively lengthy judicial proceedings, date back to the 1980s. Following a number of general measures adopted by Italy, the Committee of Ministers closed the supervision of the execution of these judgments in 1992, for criminal proceedings, and in 1995, for civil proceedings (Resolutions DH(92)26 and (95)82 respectively).
2. The number of violations found by the Court having not diminished, the Committee of Ministers decided in 1997 “to resume the examination of the reforms required […] and to maintain the cases relating to this problem on its agenda until the implementation of these reforms” (Resolution DH(97)336). In 2000, the Committee decided “to continue the attentive examination of this problem until the reforms of the Italian judicial system become thoroughly effective and a reversal of the trend at domestic level is fully confirmed”.
3. The measures adopted by the Italian authorities since the 1990s and their successive assessments by the Committee of Ministers were presented in particular in the notes prepared for the 1100th meeting (DH) (30 November – 2 December 2010) and, as regards more particularly the period between 2006 and 2008, in information document CM/Inf/DH(2008)42 of 28 November 2008.
4. Based on the measures assessed in this latter document, the Committee of Ministers adopted at its 1051st meeting (DH) (17 – 19 March 2009) Resolution CM/ResDH(2009)42 (the 7th interim resolution adopted in these groups of cases). As regards all the proceedings at issue in these cases (civil, criminal, administrative and bankruptcy), this resolution presents the progress achieved in the implementation of the general measures and reviews the issues that remained outstanding at that time.
5. In December 2010, concerned about the lack of sufficient information on these issues, the Committee of Ministers adopted a new Interim Resolution (CM/ResDH(2010)224), in which it urged the Italian authorities at the highest level strongly to hold to their political commitment to resolving the problem of the excessive length of judicial proceedings and to take all necessary technical and budgetary measures accordingly. It firmly invited them to undertake interdisciplinary action, involving the main judicial actors, co-ordinated at the highest political level, with a view to drawing up urgently an effective strategy.
6. In 2011 and 2012, the Italian authorities presented information on the measures adopted since 2009 and those they envisaged adopting in order to remedy the structural problems these cases raise. As regards the substantive issue (see infra part II), most of the information provided by the Italian authorities concerns measures aiming at improving the efficiency of the judicial system and that of the civil proceedings. On 10 April 2013, the authorities presented updated information on these points, a first step in the drawing up of a consolidated action plan addressing all the issues raised by these groups of cases. This information is presented and assessed in part II, sections A and B of this document.
7. The outstanding issues identified by the Committee of Ministers as regards the criminal, administrative and bankruptcy proceedings are reviewed in part II, section C of this document.
8. Lastly, the measures adopted and envisaged to reform the remedy known as “Pinto” were also addressed in the communications from the Italian authorities and are examined in part III of the document.
II. Measures adopted to remedy the substantive problem
9. In October 2011, the Italian authorities announced to the Committee of Ministers the drawing up by the Ministry of Justice of a “multi-strategic plan” to tackle the problem of excessive length of civil proceedings, in response to the Interim Resolution CM/ResDH(2010)224. It should be however noted that a part of the measures set by this plan go beyond the framework of civil proceedings and concern the judicial system as a whole. They are therefore relevant also for the strategies implemented as regards the other types of proceedings at issue in these groups of cases.
A. Measures aimed at improving the efficiency of the judicial system
1. Specialisation of the judges
10. The authorities consider that the specialisation of the judges could contribute to improving the allocation of the working time and, as a consequence, to reducing the length of the proceedings. The authorities indicated that in the present system, some judicial offices2 do not have a sufficient number of judges to allow the latter to specialise, which contributes to extending the length of the proceedings.
11. This is the background for two important measures announced by the authorities to the Committee of Ministers: the reorganisation of the judicial districts and the setting-up of new specialised courts.
12. Law No. 148 of 14 September 2011 delegated authority to the Government to reorganise the judicial districts. This measure is now under implementation. It essentially consists in suppressing a certain number courts of first instance jurisdiction, including all the detached sections of the first instance courts (tribunali) and a number of offices of justices of peace3, to regroup and concentrate the resources.
13. Thus, Legislative Decree No. 156 of 7 September 2012 suppressed most of the offices of justices of peace and Legislative Decree No. 155 of 7 September 2012 provides for the suppression of 31 tribunals and of 220 detached sections, bringing thus the total number of first instance courts in Italy down to 135 (this reform is due to be completed during 2013).
14. According to the authorities, these measures will allow reallocating economic and human resources from the suppressed offices/sections to the regrouped first instance courts. As a consequence, the 135 regrouped first instance courts will have a sufficient number of judges to allow them specialising in criminal or civil proceedings and, in the larger offices, also specialising in specific matters (successions, contracts, enforcement etc.).
15. In parallel, in 2012, the authorities instituted specialised courts in corporate law (a section of the first instance court is specialised in corporate law and intellectual property and has a wider territorial jurisdiction then the ordinary court to which it is attached). In addition, the authorities are in process of examining the possibility to institute a court for family affairs.
16. The lesser number of specialised courts (due to the fact that their territorial jurisdiction is wider) will contribute, according to the authorities, to case-law unification in the fields in question and thus to a reduction of the number of disputes, since divergent case-law is a cause of legal uncertainty and, as a consequence, one of the sources for litigation.
2. Organisational measures to be taken by the heads of the judicial offices
17. Legislative Decree No. 98 of 6 July 2011 redefined the role of the presidents of the judicial offices in the management of the judicial activity. In cooperation with the executive directors of the offices, the presidents are henceforth required to prepare annual action plans for the management of the pending civil, administrative and tax disputes.
18. The action plan must determine: (i) the objectives for the judicial office in terms of decrease in the length of the proceedings; (ii) the performance objectives for the office; (iii) the order of priority for the examination of the disputes pending, defined according to objective and homogenous standards.
19. The action plan must also assess whether the objectives set for the previous year were achieved and, if not, indicate the reasons why they had not been achieved. Completion of the objectives will also be considered in the assessment of performance of the president of office, in view of their confirmation to his post.
20. The authorities indicated that they were in the process of collecting the documentation concerning the action plans prepared for the year 2013 and the completion of the objectives set for the year 2012, which would provide the first indications on the effects of this measure.
3. Organisational measures to be taken by the judges in civil cases
21. The authorities indicated that the judges in civil cases are henceforth required to set a “trial timetable” and, in this framework, set the timetable for the hearings, by taking into account the requirement of reasonable length, as it is defined by law (see §81 below).
22. An extension of the deadlines is only possible for « serious reasons ». Failure to observe the deadlines may amount to a disciplinary breach from the part of the judge, the legal counsel4 or the court-appointed technical advisor5 (consulente tecnico d'ufficio), and a factor to be taken into account in assessing the activity of the judge and in the decision-making process as regards their appointment to posts involving managerial functions.
4. Dissemination of best practices
23. Encouraged by the good results obtained at the level of some judicial offices (Turin, Milano, Trento), the authorities indicated considering recommending the implementation of these practices by the other offices. No information was received on the calendar envisaged for the dissemination of the best organisational practices to all the courts in the country.
5. Wider use of information technology
24. Since 2008, the authorities progressively implemented measures aimed at widening the use of information technology in the management of the judicial activity.
25. The information provided on 10 April 2013 indicates that online consultation of registry files and case files is now possible in all judicial offices. Also, in all judicial offices, communications and notifications are served online, which resulted in savings in an amount of approximately 20 million euros corresponding to notification fees.
26. Online filing of documents is now possible in 67 of the 194 first instance courts and courts of appeal (34%), but it will become compulsory as of June 2014 (under the budget law for 2013) for all judicial offices.
27. The authorities also consider implementing a project in order to encourage a wider use of information technologies by the courts in the South of the country.
28. Specific information on the use of information technologies in bankruptcy proceedings were provided by the Italian authorities in the action plan presented on 16 January 2012 in the group of cases Luordo (DH-DD(2012)58).
6. Assessment – outstanding issues
29. The efforts made by the Italian authorities to improve the efficiency of the judicial system are to be welcomed. This being said, the measures presented do not appear capable of showing results on a short term, all the more since the implementation of a part of the measures announced (reorganisation of the judicial offices, dissemination of best practices, wider use of information technologies) has not yet been completed. In these circumstances, it appears crucial that the authorities inform the Committee of their projections and expectations in this regard and on the manner in which they will assess the results achieved as compared to the intended impact and will adopt, if needed, the additional and/or corrective measures that might be required.
30. In this context, it is important to note that the authorities have organised a monitoring of the implementation and of the impact of the organisational measures to be taken by the heads of the judicial offices. It would be useful if the results of this monitoring as well as their assessment by the authorities were transmitted to the Committee of Ministers, as soon as they are available.
31. As regards the measures adopted, it should be noted that the information available to date shows that at the level of some courts, positive results were obtained as regards dispute management6, even without allocating additional human and material resources. The dissemination of these examples of good practices, envisaged by the authorities, will contribute to ensuring the efficiency of the organisational measures which must be adopted by the heads of the judicial offices and by the judges. It would therefore be useful for the Committee to obtain from the authorities concrete information on the manner in which they will disseminate these good practices to all judicial offices. Moreover, it would be also important that the Committee is provided with details on the contents of these good practices.
32. In this context, it is important to recall that some of the SATURN Guidelines for judicial time management drawn up by the European Commission for the Efficiency of Justice (the “CEPEJ”) are especially addressed to the authorities responsible for the administration of justice, among which judges, and to the court managers. As the examples of good practices, these guidelines could optimise the impact of the organisational measures that are to be adopted by the heads of the judicial offices and by the judges. The authorities could therefore encourage them to implement the SATURN guidelines.
B. Measures aimed at improving the efficiency of civil proceedings
33. The multi-strategic plan announced in October 2011 also provides for measures designed to remedy the problem of excessive length of civil proceedings. Through these measures, the authorities essentially aimed at:
- reducing the flow of new proceedings;
- expediting the proceedings, through a simplification of the civil procedure;
- downsizing the backlog of proceedings, including through extraordinary measures.
1. Measures aimed at reducing the flow of new proceedings
a. Mandatory mediation in civil and commercial matters
34. Legislative Decree No. 28 du 4 March 2010 instituted mandatory mediation in civil and commercial matters. For certain types of disputes, mediation became mandatory as of March 2011 and, for some others, as of March 2012.
35. The authorities indicated that between March 2011 and October 2012, 202,487 mediation procedures were initiated. The average length of mediation procedures is of 67 days, and, when the party who was convened to the procedure participates, an agreement is reached in 48% of the cases. The participation rate of the party convened to the procedure remains however low (approximately 35%).
36. Preliminary information provided by the authorities to the Execution Department, in December 2012, in Italian language, indicates that a decrease by 30% in the number of cases brought in courts was registered in the first 6 months of application of the new provisions on mandatory mediation (end of March – end of October 2011).
37. On 24 October 2012, the Constitutional Court declared unconstitutional the provisions establishing the mandatory nature of mediation, finding that on this point, the Government had overstepped the limits of the delegation of legislative authority in the matter.
38. Assessment: the authorities did not provide information as regards the impact of the declaration of unconstitutionality of the use of mediation, use which henceforth appears to be only optional. As results from the action plans presented in 2011 and 2012, the introduction of mandatory mediation, which aimed at reducing the flow of new proceedings in court, represented one of the key measures in the strategy drawn up by the authorities to reduce the length of the civil proceedings. It appears therefore necessary that the authorities indicate which consequences are to be drawn draw from the abovementioned declaration of unconstitutionality.
b. Introduction of legal fees for applications to review administrative sanctions
39. In 2010, legal fees were introduced to deter litigants from bringing unfounded applications. Following the introduction of this measure, the applications to review administrative sanctions dropped by 57% as compared to 2009. This downward trend consolidated in 2011.
40. Assessment: the results presented by the authorities are show that this measure resulted in an important decrease of applications for review of administrative sanctions, which is to be welcomed. In order to be able to assess the overall effects of this measure, it would be important that the authorities indicate which courts have jurisdiction in this matter and which was the impact of this measure on the global number of incoming cases at the level of these courts, for the years 2010, 2011 and 2012.
c. New filter in appeal proceedings
41. Article 54 of Legislative Decree No. 83 of 22 June 2012, converted into Law No. 134 of 7 August 2012 henceforth allows the appellate judges to dismiss manifestly ill-founded appeals by an inadmissibility order delivered on the day of the first hearing.
42. This new procedural rule applies to appeals brought as of 11 September 2012.
43. Considering the short period of time lapsed, the authorities do not have data on the impact of this measure in practice yet. It was nevertheless decided to collect, from two Courts of Appeal, data on the number and the length of appeal proceedings brought since the adoption of this measure and which were terminated by inadmissibility orders. This data should be available by the end of May 2013.
44. The authorities also indicated that a filtering system in cassation proceedings was introduced in 2009, but did not provide information on the details of this legislation.
45. Assessment: it would be useful to be provided with the results of the monitoring mentioned at §43 above and with their assessment by the authorities. It would be also useful to know if the authorities organised a similar monitoring to assess the impact of the filtering system introduced in 2009 at the level of the Court of Cassation and, if so, to be provided with information on its effects on the average length and on the backlog of civil proceedings before this court.
2. Measures aimed at expediting the proceedings
a. Introduction of a summary procedure
46. Law No. 69 of 18 June 2009 introduced a simplified summary procedure in first instance, in some matters falling under the jurisdiction of first instance courts, in a single judge formation. Subsequently, Legislative Decree No. 150 of 1 September 2011 extended the scope of this new procedure and supressed the possibility to transform a summary procedure into an ordinary procedure.
47. The data provided by the authorities on 10 April 2013 show that for the judicial year 2011/2012, the average length of summary proceedings was of 482 days (that is approximately 1 year and 4 months)7, having increased as compared to the judicial year 2010/2011 (284 days, that is approximately 9 months). The use of the summary procedure remains limited: during the same reference period (2011/2012), the number of summary proceedings brought stood at 7,746, whereas the number of ordinary procedures reached 286,178.
48. The low rate of summary proceedings and, as consequence, the low impact of this measure on the global average length of civil proceedings in first instance can be explained, according to the authorities, by the reticence from the legal counsels to resort to this type of procedure. The authorities are in the process of identifying possible solutions, including legislative amendments allowing judges to decide on their own motion to examine a case under the summary procedure.
b. Reduction of the number of types of procedures
49. The above-mentioned Legislative Decree No. 150 of 1 September 2011 also simplified the civil trial. Before its adoption, there were thirty types of procedures in civil matters. Now, there are only three types of procedures: the ordinary procedure, the summary procedure and the procedure in labour matters.
50. Assessment: as recognised by the authorities and as shown by the statistical data provided, the efficiency in practice of the introduction of the summary procedure is affected on the one hand, by the poor adherence of the litigants to the summary procedure and, on the other hand, by the increase in the average length of the summary proceedings. As the authorities are currently seeking possible solutions to the first problem presented above, it would be useful to know the results of this reflection. As regards the second problem, having regard to the statistical data for the judicial year 2011/2012, which shows an important increase in the average length of these proceedings as compared to the previous judicial year, the authorities should indicate if they envisage supplementary measures in order to reverse this trend.
51. As regards the reduction of the number of types of procedure, in order to acquire a precise view of the scope of this measure, it is necessary to know if it concerns the three levels of jurisdiction (first instance, appeal and cassation) and if it applies to all pending civil proceedings or only to those brought after its coming into force. Information is moreover needed on if and the manner in which the authorities monitor its impact on the average length of proceedings before the relevant courts.
3. Extraordinary measures to downsize the backlog
52. In the action plan presented on 10 October 2011 in the group of cases Ceteroni, the Italian authorities indicated that in the framework of the “multi-strategic plan” drawn up by the Ministry of Justice to address the problem of excessive length of civil procedures (see §9 above), extraordinary measures for processing the backlog were envisaged. The contents of these measures have not been clearly indicated, save for the appointment of 600 honorary auxiliary judges, to clear this backlog.
4. Statistical data
53. Statistical data was provided on 10 April 2013 on the overall impact of the measures adopted on the length and backlog of civil proceedings. This data essentially indicates:
- an increase in the average length of civil proceedings in 2012 as compared to 2011 at the level of the ordinary courts, as regards ordinary proceedings (from 1,068 days to 1,139 days) as well as summary proceedings (from 284 days to 482 days); and
- a confirmation in 2011 of the decreasing trend begun in 2010 as regards the backlog of civil proceedings, the size of which (including cassation proceedings) decreased from 5,629,869 (2010) to 5,508,361, that is a downsize of more than 120,000 proceedings (2011 – provisional data).
54. As regards the situation in 2012, the partial data provided show that as at 30 June 2012, the backlog amounted to 5,488,031. The authorities indicated that at 31 December 2012, the backlog of proceedings should be down by approximately 20,000 as compared to 2011.
55. Assessment: the data provided by the authorities on the average length of civil proceedings are incomplete, as they only concern the first instance courts. Moreover, they do not allow determining whether a regular monitoring of the situation is carried out by the authorities, since they only concern the years 2011 and 2012.
56. Based on the last complete statistical data available on this point and presented in information document CM/Inf/DH(2008)42, which concern the period between 2001 – 2007, it is to be noted that, despite the measures adopted since the end of this period, the average length of civil proceedings before ordinary courts has increased from 973 days in 2007 (that is approximately 2 years and 7 months) to 1,139 days in 2012 (that is approximately 3 years and 1 month). This increase is very preoccupying. These statistical data appear to demonstrate that the measures the Committee took note of in its 2009 Interim Resolution CM/ResDH(2009)42 have not produced the impact anticipated at that time.
57. It is therefore crucial for the authorities as well as for the Committee of Ministers to be able to determine if the measures implemented in the framework of the “multi-strategic plan” for the civil proceedings, the most recent of which must yet yield results are sufficient to lastingly reverse this trend.
58. To do so, the setting-up of a mechanism which would enable the detailed monitoring at national level appears necessary. In the framework of this monitoring, the authorities could define precisely the expected impact of the measures adopted and the method retained for the assessment of the results, so that they can take rapidly, if necessary, the additional and/or corrective measures which might be required.
59. The size of the backlog of civil cases, amounting to approximately 5.5 million cases at 30 June 2012, clearly contributes to curb the effects of the measures adopted by the authorities to reduce the length of proceedings. The decrease in the backlog in 2010 and 2011 is, of course, to be noted. This being said, the data provided indicates that this decrease does not continue at a sufficiently sustained rhythm to allow envisaging the elimination of the backlog over a reasonable period of time. To do so, it is important that the authorities identify and implement extraordinary measures targeting the backlog of civil proceedings, so that it can be brought to a manageable size over a reasonable period of time, thus countering its negative effects on the efficiency of the other measures adopted in this field. It is therefore important that the Committee is provided rapidly with information on this point.
C. Outstanding issues as regards the criminal, administrative and bankruptcy proceedings
1. Criminal proceedings
60. The action plan presented on 30 March 2012 (DH-DD(2012)395) indicated that a draft law (No. 5019) aiming at improving the efficiency of the criminal proceedings had been presented before the Chamber of Deputies in February 2012. Among the measures envisaged are the decriminalisation of a number of minor criminal offences (which would be reclassified as administrative offences) and the possibility to order that suspension of the trial with probation.
61. Outstanding issues: Updated information on the progress in the adoption of these measures is awaited. It should be moreover noted that the latest data submitted to the Committee of Ministers on the average length of criminal proceedings and on the size of the backlog date back to 2007. In its Interim Resolution CM/ResDH(2009)42, the Committee of Ministers noted that amendments had been brought in 2008 to the Code of Criminal Proceedings with a view to accelerating and rationalising criminal-law proceedings, while considering that this reform would only show results in medium term.
62. Having regard to the above, in order to be able to assess the impact of the measures adopted in 2008 and to acquire a clear view of the present situation, it appears necessary that the Committee of Ministers is provided with updated information in respect of criminal proceedings, in particular on:
(i) the average length of proceedings, in days and by level of jurisdiction for 2008, 2009, 2010, 2011 and 2012;
(ii) the ratio between incoming cases and cases solved, by year and by level of jurisdiction, in 2008, 2009, 2010, 2011 and 2012;
(iii) the overall number of cases pending at the end of each year (2008 – 2012) by level of jurisdiction.
63. Moreover, in accordance with the decision adopted at the 1157th meeting (DH) (December 2012) (§5), which concerns criminal proceedings, as well as civil and bankruptcy proceedings, additional information is needed on the monitoring of the impact of the measures already taken and the calendar for the adoption of the other envisaged measures, to allow the Committee to acquire a precise view of the strategy drawn up by the authorities to remedy this problem.
2. Administrative proceedings
64. The authorities presented information on the administrative proceedings on 30 July 2012. They indicated that a legislative reform resulted in the adoption in 2010 of a new Code of Administrative Proceedings, which came into force on 16 September 2010. As a consequence of this reform, in 2011, the administrative courts (the Council of State and the regional administrative courts) registered an overall decrease of the backlog of 68,302 cases.
65. According to the Italian authorities, although the results of this reform are “hampered” by the need to process the backlog, the length of administrative proceedings is presently in a better position when compared to that of the civil proceedings. However, the authorities have not provided information on the size of the backlog of administrative proceedings and have not yet indicated to the Committee which were their projections and expectations as regards the impact of this reform and how they are going to measure whether the impact obtained indeed corresponds to the expected impact, so that they can take, if necessary, all the additional and/or corrective measures that might be required.
66. Outstanding issues: In the decision adopted at the 1157th meeting (December 2012) (DH)), the Deputies noted with interest the overall decrease in the backlog of administrative proceedings registered at the end of 2011 as a result of the entry into force in 2010 of the new Code of Administrative Proceedings and invited the authorities to supplement this information with updated statistical data on the average length of these proceedings and with details on the manner in which the impact of this reform is monitored and assessed. These issues remain relevant.
3. Bankruptcy proceedings
67. In Interim Resolution CM/ResDH(2009)42, the Committee of Ministers took note of the reform introduced in the field of bankruptcy by Law No. 80 of 14 May 2005 and the Legislative Decree No. 5 of 9 January 2006 on bankruptcy proceedings, which aimed, inter alia, at expediting such proceedings and simplifying the different procedural steps.
68. As this reform only applied to the proceedings brought after it entered into force, the Committee of Ministers noted that the proceedings pending before the entry into force of the reform continued to be affected by the problem of excessive length.
69. On this occasion, the Committee noted that the statistical data provided by the authorities showed that in absolute numbers, the bankruptcy petitions filed, as well as the bankruptcy declarations, decreased by approximately 40% in 2007 (that is after the entry into force of the abovementioned reform), but that the length in days of these proceedings remained stable (even in 2007), at an average of 3,300 days (that is approximately 9 years) for the period 2003-2007.
70. In an action plan transmitted on 16 January 2012 (DH-DD(2012)58), the Italian authorities presented statistical data indicating that from 2008 to 2010, a significant reduction of the average length of bankruptcy proceedings before the bankruptcy sections of the ordinary courts in Italy was registered (from 3,304 days – approximately 9 years – in 2008 to 2,681 days – approximately 7 years and 4 months – in 2010).
71. The action plan also presented the IT tools adopted and under adoption by several courts for better and quicker management of the pending proceedings, as well as other measures (circulars setting deadlines to trustees; courses and seminars).
72. Outstanding issues: The decrease in the average length of bankruptcy proceedings registered between 2008 and 2010 is to be welcomed. In order to allow the Committee to assess whether this trend has confirmed, it appears necessary to have updated information on the average length of these proceedings, in days and by level of jurisdiction, for 2011 and 2012.
III. Reform of the mechanism set forth by the “Pinto” Law
73. Law No. 89/2001 (referred to as “Pinto” Law) set a remedy allowing those affected by the excessive length of judicial proceedings to obtain compensation at national level. The scope of this problem in Italy, however, gave rise to such a large number of “Pinto” proceedings, that it adversely affected this remedy, a situation which gave rise to a new type of litigation before the European Court. Many repetitive applications thus led to new findings of violation, this time in respect of the proceedings brought under the “Pinto” Law8, on account of the insufficient amount of the compensation awarded, the delays in payment of this compensation and, more recently, of the excessive length of the “Pinto” proceedings (violations of Article 6§1 and/or Article 1 of Protocol No. 1).
74. As regards the insufficient amounts awarded under this Law, domestic case-law developments now comply with the criteria set by the European Court (see on this point the notes prepared for the 1092nd meeting (DH) (14 – 15 September 2010)).
75. The problem of delays in the payment of the compensation awarded by the domestic courts under the “Pinto” proceedings and the most recent one concerning the excessive length of these proceedings still remain an issue. The Committee of Ministers strongly encouraged the authorities to consider amending the “Pinto” Law with a view to setting up a financial system resolving the problems of delay in the payment of compensation awarded, to simplify the procedure and to extend the scope of the remedy to include injunctions to expedite proceedings (see Interim Resolutions CM/ResDH(2009)42 and CM/ResDH(2010)224).
A. Recent measures adopted
76. In 2012, amendments were brought to the “Pinto” Law by Legislative Decree No. 83, issued on 22 June 2012, converted by Law No. 134 of 7 August 2012.
77. The new provisions introduced a written procedure for the examination of the compensation claims brought under this Law. Other provisions conditioned the access to the Pinto remedy upon termination of the main proceedings and excluded or limited the compensation in certain cases. Article 3 §7 of the “Pinto” Law, which provides that the payment of the compensation is made within the limit of available resources, was not amended. Under the new legislation, the purely compensatory nature of the “Pinto” remedy is maintained.
78. The new provisions apply to the compensation requests introduced under the “Pinto” Law as of 11 September 2012.
79. In a letter dated 8 August 2012, the Secretariat informed the authorities of a certain number of questions which are raised as regards the compatibility of some of these amendments with the Convention and the European Court’s case law on effectiveness of remedies and compensation criteria (DD-DH(2012)806F). The Italian authorities replied to this letter on 24 October 2012 (DH-DD(2012)1001F).
80. In November 2012, the authorities announced a change in the system of payment of the “Pinto” debts which, as of August 2012, is made by the Ministry of Justice (instead of the Courts of Appeal). On 30 October 2012, following the allocation of a 30 million euro budget to this purpose, the Ministry of Justice begun paying the arrears of these debts for the period 2005 – 2008.
81. In their communication of 10 April 2013, the authorities indicated that the recent legislative amendments should generate a decrease by approximately 8,000 of the number of the “Pinto” procedures brought. According to the authorities, this will thus lead to a reduction in the workload of the Courts of Appeal and will contribute to significantly shorten the length of “Pinto” proceedings. In addition, the new provisions should lead to predictable and “fundamentally standardised” solutions, since they set thresholds below which the length of the proceedings is deemed reasonable9 and lower and upper limits to the compensation that can be awarded under this Law10.
82. Precise data on the number and length of the “Pinto” proceedings processed under the new provisions will be collected and should become available at the end of May 2013.
B. Measures underway
83. On 30 November 2012, the authorities announced to the Committee of Ministers new measures aimed at reforming the financial system set under the “Pinto” Law, at liquidating the compensation arrears to be paid under this Law and at settling amicably the cases pending before the European Court which raise such issues.
84. The authorities indicated that a proposal to modify the budgetary allocation system in respect of the funds earmarked for payments to be made under this Law, essentially aimed at lifting the budgetary limits, was under consideration and that the solutions envisaged by the Ministry of Justice on this point had been favourably met by the Ministry for Economy and Finance.
85. In this context, the authorities also announced:
- the adoption, in the framework of the budget law for 2013, of a provision which would exempt from seizure the funds allocated for the payments made under the “Pinto” Law11;
- the allocation, through the same law, of a 50 million euro budget for the payments to be made under the “Pinto” Law in 2013, foreseen to be available in the beginning of 2013;
- the adoption of an action plan for the friendly settlement of the repetitive cases brought before the European Court and which concern the “Pinto” remedy (it is envisaged to finalise these settlements in 2014).
86. The authorities have not yet presented a timetable for the adoption of the reform of the financial system set by the “Pinto” Law nor a confirmation of the adoption of the two other measures set forth by the budget law for 2013, which had to be adopted before the end of 2012.
C. Assessment – outstanding issues
87. The amendments brought in 2012 to the remedy set under the “Pinto” Law have not addressed the main deficiency which is the mechanism of budgetary allocation of the funds for the payment of the compensation. The authorities announced in November 2012 that a reform of the budgetary mechanism set by this Law was underway. They have not however presented a timetable for the adoption of this reform, despite the urgency to reach to a sustainable solution in this matter (most of the relevant judgments of the European Court concern the delays in the payment of “Pinto” compensation). In addition, two other measures that are important for the functioning of the financial mechanism, at present and in the future (exemption from seizure of the funds allocated for the “Pinto” payments and allocation of a 50 million euro budget for the payments to be made in 2013), had to be adopted before the end of 2012.
88. In these circumstances, it is paramount that the authorities confirm the adoption of these two measures and that they urgently provide the Committee with information on the timetable envisaged to bring to conclusion the reform of the budgetary mechanism set under the “Pinto” Law.
89. In addition, as regards the amendments brought in 2012 to the “Pinto” Law, it should be recalled that in its decision adopted at the 1157th meeting (December 2012) (DH), the Committee of Ministers noted with concern that those which condition the access to the remedy provided by this Law upon the termination of the main proceedings and which exclude de plano the compensation for the proceedings that have lasted less than or equal to 6 years, may raise issues as to their compatibility with the requirements of the Convention and the Court’s case-law on effectiveness of remedies and compensation criteria.
90. On this point, it should be noted that conditioning the access to the “Pinto” remedy on the final resolution of the main proceedings poses the risk of an increase in the flow of repetitive cases before the Court, since the parties will be able to bring their case directly to the Court (without having to exhaust the “Pinto” remedy) when the main proceedings are pending and they have exceeded a reasonable length. A similar effect can result also from the exclusion of any possibility to challenge at domestic level proceedings which have lasted less or equal to 6 years (since, as the Court found, a length of the proceedings of less than 6 years can be excessive, in the light of the circumstances of the case). These amendments go against the urgency, underlined on multiple occasions by the Committee, to stop the flow of repetitive cases stemming from this structural problem before the European Court.
91. The arguments brought by the authorities – namely that these amendments may contribute to limit the number of the “Pinto” proceedings and, as a consequence, their length, and that they can lead to a standardised case-law on these matters – do not address these concerns, which remain therefore relevant.
92. Lastly, given that other amendments brought to the “Pinto” Law in 2012 simplified the procedure for processing these cases, it would be useful to be provided with the first results on the average length of the proceedings brought under the new provisions, which the authorities intend to collect before May 2013.
93. As regards the substantive issue of excessive length of judicial proceedings, the assessment presented in this document shows that a certain number of questions remain to be clarified by the authorities in order to allow the Committee to acquire a precise view of the content and the impact so far of the strategies implemented by the authorities, for each type of proceedings at issue, to put an end to this serious structural problem.
94. The central issue at this stage is to know whether, given the scale of the problem and the causes which generated it, the measures that these strategies set forth are capable to lead to a lasting solution of this problem, as rapidly as possible.
95. To respond to this issue, it appears necessary that the authorities determine which are the results expected from these strategies on the length of the proceedings and how and according to which time frame will they measure if the impact obtained does indeed correspond to the expected impact.
96. The Council of Europe, notably through the CEPEJ, can provide the Italian authorities with solid expertise not only in assessing the efficiency in principle of the strategies drawn up for all these proceedings, but also in optimising the results expected from the measures implemented in this framework and, if need be, in defining additional/corrective measures which might prove necessary so that the authorities reach a lasting solution to the problem of excessive length of judicial proceedings.
97. As regards the remedy under the “Pinto” Law, the main deficiency continues to be the financial system for the payments to be made under this Law. The assessment cannot but underline again the urgency to bring to conclusion the reform of this system, which was announced by the authorities to the Committee of Ministers in November 2012.
98. As regards the next steps in the process of execution of the judgments related to these problems, the Italian authorities should be encouraged to take into account the comments made on the abovementioned points and on the other questions examined in this Memorandum in the preparation of the consolidated action plan that they will submit to the Committee of Ministers, in response to the decision adopted following the examination of this group of cases at the 1157th meeting (December 2012) (DH).
1 This document has been classified restricted at the date of issue. It was declassified at the 1172nd meeting of the Ministers’ Deputies (June 2013) (DH) (see CM/Del/Dec(2013)1172 Decisions adopted at the meeting).
2 The communications submitted by the authorities suggest that the term of “judicial offices” refers to a judicial organisation unit. Depending on the context, this term may designate a court of first instance, a court of appeal, a justice of peace office and even the prosecutor’s offices.
3 Preliminary information submitted by the authorities in December 2012 in Italian language indicates that the number of offices of justices of peace was reduced from 846 to 179.
4 In case of breach of their duty of integrity and probity by legal counsels, the judges can bring the matter before the disciplinary body of the Bar Association.
5 Court-appointed technical advisors are court officers with technical expertise in a particular field who are appointed by the judges to assist them during the trial on aspects falling within their area of expertise (Art. 61 of the Code of Civil Procedure). They perform the tasks assigned to them by the judge and provide the clarifications required by the judge in public hearings or in camera (Art. 62 of the Code of Civil Procedure).
6 See on this point §23 of this Memorandum, §§36 – 37 of information document CM/Inf/DH(2008)42 and the report of the Commissioner for Human Rights of the Council of Europe following his visit to Italy on 3-6 July 2012 (document CommDH(2012)26 of 18 September 2012).
7 By comparison, in 2011/2012, the length of ordinary proceedings reached 1,139 days (a little more than 3 years).
8 Aspects which are examined in the framework of the Mostacciuolo and Gaglione and others group. In the case of Belperio and Ciarmoli (judgment of 21/03/2010), the European Court found in particular that the cases pending before it and concerning the length of “Pinto” proceedings may point to a general problem in its functioning (§54) (violations of Article 6§1).
9 For instance, the length of the proceedings is deemed reasonable if it does not exceed three years in first instance, two years in second instance, three years for enforcement proceedings and six years for bankruptcy proceedings. In any event, the proceedings are deemed to satisfy the reasonable length requirement if they are irrevocably completed in no more than six years.
10 The compensation awarded for each year of fraction of a year superior to six months which exceeds the threshold corresponding to a reasonable length of the trial cannot be below 500 euro or above 1,500 euro.
11 Under the regulations in force at that time, the funds allocated to the Courts of Appeal for these payments could be seized for the payment of other debts; a provision of the draft budget law for 2013 provided that these funds could no longer make the object of enforcement proceedings