COUNCIL OF EUROPE
COMMITTEE OF MINISTERS
INTERIM RESOLUTION DH (99) 436
EXCESSIVE LENGTH OF PROCEEDINGS
CONCERNING CIVIL RIGHTS AND OBLIGATIONS
BEFORE THE ADMINISTRATIVE COURTS IN ITALY:
MEASURES OF A GENERAL CHARACTER
(Adopted by the Committee of Ministers on 15 July 1999
at the 677th meeting of the Ministers’ Deputies)
The Committee of Ministers, under the terms of Articles 32 and 54 of the Convention for the Protection of Human Rights and Fundamental Freedoms (hereinafter referred to as “the Convention”), and of Article 46, paragraph 2, of the Convention, as amended by Protocol No.11, and in view of the Rules which it has adopted concerning the application of these articles;
Stressing the necessity for all the Contracting States to take rapidly all the measures required in order to comply with their obligations and prevent new violations of the Convention similar to those established in the judgments of the European Court of Human Rights and in the decisions of the Committee of Ministers;
In view of the judgments of the European Court of Human Rights and the decisions by the Committee of Ministers recording since 1995 a large number of breaches of Article 6, paragraph 1, of the Convention due to the excessive length of proceedings concerning civil rights and obligations before administrative courts;
Having invited the Government of Italy to inform it of the measures of a general character envisaged in order to remedy this situation, and in view of Italy’s obligation to comply with the judgments of the Court and decisions of the Committee of Ministers in accordance with Articles 53 and 32, paragraph 4, of the Convention and Article 46, paragraph 1, of the Convention as amended by Protocol No. 11;
Considering that, at the time of examining this item, the Government of the defendant state provided the Committee of Ministers with the information summarised in the appendix to this resolution;
Welcoming the efforts made to speed up the administrative court proceedings, invites the Italian authorities to pursue their efforts in this respect;
Declares, after noting the information provided by the Government of Italy, that it has provisionally fulfilled its obligations under Articles 54 and 32 of the Convention and with respect to Article 46, paragraph 2, of the Convention as amended by Protocol No.11,
Decides to resume its examination, in one year at the latest, of the question whether the announced measures will effectively prevent new violations of the Convention and consequently agrees, in the interim, to examine only those questions relating to the award or payment of just satisfaction to the applicants and other individual measures that might prove necessary.
Appendix to Resolution DH (99) 436
Information provided by the Government of Italy
during the examination by the Committee of Ministers
of the general measures to be adopted in order to solve
the problem of the excessive length of proceedings concerning civil rights and obligations
before the administrative courts in Italy
In order to reduce the length of proceedings in administrative cases, the Italian Ministry responsible for the civil service and regional questions has put before the Senate of the Italian Republic, on 10 December 1997, a Bill (No. 2934) with the aim of speeding up procedures before administrative courts.
The measures envisaged in this bill include:
- a reduction of the time devoted to the preparatory stages of the proceedings before the administrative courts, including a rationalisation of the case-file management so as to avoid unnecessary adjournments of hearings (Article 1);
- a special, simplified and faster appeal procedure in case of failure by a public department to give a reply, allowing for the adoption of special enforcement measures where the passivity remains (Article 2);
- new general rules regarding holding measures, extending, in particular, the administrative judge’s powers (Article 3);
- the introduction of special rules, including the shortening of the time-limits, for proceedings concerning a number of particularly sensitive issues, such as the carrying out of public works, privatisation (Article 4);
- the possibility for administrative courts, in matters where they have exclusive jurisdiction, to award damages when execution of the judgment allows only imperfect reparation of the consequences of the violation of the applicant’s interests (Article 5), which avoids the need for repeat proceedings;
- the possibility, in certain circumstances, of taking decisions in a simplified form and the lapse, unless the applicants object, of proceedings which have been pending for more than ten years (Article 6);
- the empowering of Regional Administrative Courts to execute judgments which have not been stayed by the Council of State (Article 7);
- the abrogation of the possibility for the Council of State to refer cases back when the previous judgment is set aside (Article 8);
- the possibility for the President of a court to notify an appeal by means of any appropriate method, including electronic mail or fax (Article 9);
- the obligation for the presidents of Regional Administrative Courts to remain in the post which they have just been assigned for at least three years and the increase in staff amounting to 60 new posts of auxiliary judges for Regional Administrative Courts (an increase of 18%) and 30 magistrates to the Council of State (an increase of 14%) (Articles 10 and 11);
- the publication of opinions of the Council of State (Article 13);
- the modification of the composition of the Governing Council for administrative justice (Consiglio di Presidenza della giustizia amministrativa) by including members others than administrative magistrates (Article 15);
- the budgetary autonomy of the Council of State and of Regional Administrative Courts (Article 16);
- a cost estimate for the implementation of these rules and the indication of the means to cover such costs (Articles 12 and 18).
The bill was approved by the Senate on 22 April 1999 and is currently being examined by the Chamber of Deputies. An urgent procedure has been adopted by the Italian authorities in order to have this text adopted as rapidly as possible.
Among the other measures adopted which also affect administrative proceedings to varying degrees, mention may be made of:
- Legislative Decree No. 67 of 25 March 1997 (transformed into Law No. 135 of 23 May 1997), Section 19 of which introduces measures to speed up proceedings relating to public works;
- Law No. 249 of 31 July 1997 on proceedings concerning measures taken by the Telecommunications Supervisory Authority (Sections 26-27);
- Legislative Decree No. 80 of 31 March 1998, reapportioning jurisdiction between the civil and administrative courts. The Decree gives administrative courts a certain measure of jurisdiction over proceedings relating to public departments, town planning and spatial development (including the construction sector), which were previously within the jurisdiction of the civil courts. It should be noted that in these areas, the administrative courts may also decide the award of damages, which avoids the institution of further proceedings and thus expedites the procedure. Furthermore, the Decree relieves the administrative courts of their jurisdiction in matters of public employment - a great source of litigation in the past - and assigns it to the civil courts, with the exception of proceedings instituted prior to 1 July 1998.
Moreover, as regards individual measures, measures have been taken in order to speed up proceedings which have been found to violate Article 6 of the Convention.
In addition, computerisation of the courts is continuing so as to speed up the processing of cases. Finally, the time required for extraordinary appeals to the President of the Republic, which are an alternative to the judicial procedure, has been reduced to three months.