International Association of Judges
2nd Study Commission
Civil Law and Procedure
Replies on the Italian System (*)
to the
Questionnaire for the 2018 meeting
(Marrakech –
(*) [This contribution reflects the author’s
personal views and des not in any way engage the IAJ or the Italian
Association]
STRATEGIES IN EFFECTIVE CASE
MANAGEMENT IN
|
Introduction – Case Management in Civil Litigation
Matters in |
The expression “Case
Management” in
This is the case, just to give
an example, of the so called “Strasbourg Programme” of the Turin First Instance
Court. Here I provide some information on it.
1. The ‘
1.1. The Programme in the 2001 Version
The Strasbourg
Programme has been the first court management experiment in
·
Marking
of the backlog according to the age of each case
A prerequisite for
the concrete setting up of such a program has been carrying out an examination
of the backlog of civil litigation cases. To this aim, since 2001 the President
of the Court of Turin has conducted a periodic survey, renewed every six
months, of all civil cases pending before the same judicial office. Following
this survey, all processes have been classified according to the duration
(cases pending for more than a year, for more than two years, for more than
three years, and so on). More specifically, the actions of more than three years were then
classified into five groups by complexity, which corresponded to four groups of
temporal definition, ranging from six months for easier procedures to eighteen
months for the more complex.
·
“Decalogue”
of requirements and recommendations for the management of the “old” civil cases
The President
considered first of all that processes having lasted more than three years had
to be considered in violation of the “reasonable time requirement” (Article 6
of the European Convention on Human Rights, as interpreted by the case-law of
the European Court of Human Rights); he therefore proceeded to issue a
Directive containing a series of recommendations to the judges (the so called
“Decalogue”), in order to pursue a reduction in the duration of the processes
through a quick and targeted disposal of “stale” cases. The aim of the document
was also the establishment of a uniform practice in all areas of the
·
Absolute
priority of cases pending for over three years
According to the
first census, the number of ordinary cases pending for a period exceeding three
years in all civil sections of the Court of Turin amounted, as of April 30th,
2001, to 2,354 (52 of these dated back to a date prior to 1990). In
consideration of this data, files of cases older than three years were
characterized by a distinct set of stamps on the cover, both to enable judges
to find them easily and to stress the importance of having them disposed of as
soon as possible.
·
Exhaustion
of the processes according to the FIFO (first in, first out) rather than LIFO
(last in, first out) Model
The FIFO model,
well known in management theories and corporate law, is based on the
chronological priority of the cases. In response to the clear principle that
“the first action that has been brought as must be the first to be settled,” it
works oppositely to LIFO which instead provides that “the last entry is the
first out.” The latter model, as far as the management of Courts is concerned,
could be very risky. In fact, using the LIFO method, the “old backlog” becomes
even older.
·
Periodic
survey of all pending cases, categorized by the year of registration in the
Courtʼs Registry
This task was
entrusted to the General Statistics Office of the Court, under the control of the
President of the Court. Some Judges and Presidents of Chambers were charged of
monitoring the implementation of the whole process.
·
Semestral-based
review of the achieved results
Still to be
explained and highly worthy of note was the Presidential initiative to create a
periodic distribution of general statistical data and other elements on the
length of proceedings, section by section. In this frame, the dissemination of
statistical results indicating the rate of “productivity” of each individual
judge, established an element of virtuous competition among members of the
Courts, a “follow-on” effect that helped to prevent the accumulation of a
backlog. This element too was entirely lacking in the past (and was
unfortunately discontinued as of 2015).
·
The judge plays an active role
in ensuring the rapid progress of the proceedings
The Strasburg Programme contained a set of
rules aiming at encouraging judges to make use of their powers to speed up
procedures [for examples see Oberto,
Study on Measures Adopted in
Turin’s Court (“Strasbourg Programme”) Along the Lines of “SATURN Guidelines for
Judicial Time Management,” available at the following website: http://giacomooberto.com/study_on_Strasbourg_Programme.htm].
Just to give some examples, judges were invited (a) to strictly monitor the
behaviours of all the actors to a proceedings, such as lawyers, experts,
parties, etc., (b) to fight all possible procedural abuses and delaying
tactics, (c) to avoid losing precious time in taking useless evidences (e.g.
hearing witnesses on fact which are already proven by documents, or by
technical expertises), (d) to reduce as much as possible the length of the
reasonings of judgements, etc.
1.2. The Success of the Initiative.
We can here
briefly note the results recorded by the program in one of its last editions,
the nineteenth in chronological order, released by the President in December
2011. The report
showed that the length of civil cases was as follows: 96.07% of cases below
three years and 88.6% of cases below two years. Furthermore,
according to the prior survey conducted in December 2010, within 22,268 cases
pending before the Court of Turin, 21,418 were pending for less than three
years (15,325 for one year, 4,264 for two years, 1,829 for three years), while
only 850 more than three years. These results, when compared with the previous
year (December 2009) demonstrate the establishment of a continued positive
trend in the First Instance Court of Turin, at least as long as the “Strasbourg
Programme” was in place.
1.3. The District Directive of 16 May
2011: Extension of the
The President of the
Court of Appeals (the same former President of the First Instance Court, Dr.
Mario Barbuto), in May 2011, issued the Directive No. 1/2011 entitled “Extension of the Strasbourg Programme to all ordinary Courts of the
District of Piedmont and Valle dʼAosta,” aimed at
repeating throughout the Regions of Piedmont and Valle dʼAosta the
positive results registered over the years in the Court of Turin.
The purpose of the
Directive was twofold: on one hand, to eliminate (or drastically reduce) all
civil litigation with the characteristic of “ultra-three-year,” on the other,
to make the duration “below three years” a constant standard for civil
disputes. In other words, namely those of the President of the Court of Appeal,
the category ultra-three-year causes (backlog in strict sense) must permanently
disappear from the statistical sheets. Therefore only the “infra-three-years”
cases (the stock in a technical sense) still may be displayed on those sheets;
the stock in turn have to be divided into three sub-headings: the “cases in the
third year” (defined as “stock at risk”), which have to be carefully monitored;
the “cases in the second year” (defined as “routine standard”) and the “cases
in the first year” (defined as “virtuous standard”).
As for the
previous experience in the First Instance Court of Turin, a prerequisite for
successful starting of the program was that of carrying out a census of the
entire backlog (lato sensu) of civil
cases by the General Direction of Statistic of the Ministry of Justice (DGStat).
In this regard, each Court was required to divulge: (a) the year of
registration in the Court’s Registry of the proceedings still pending in order
to trace the age of each case and to develop a general framework on the backlog
of the District as a whole and of any Court in particular over the years; (b)
the number of civil proceedings still pending on December 31st, 2009
(that is the stock).
Except for the
First Instance Court of Turin, this operation represented a breakthrough with
the past: in sixteen courts—for the first time in the judicial history of our
country—the age of pending civil (and criminal processes) to a certain date
(December 31st, 2009) was scrutinized. Moving to data, the response
offered by statistics on the Court’s District was alarming (always excluding
the First Instance Court of Turin): 728 were the cases registered in the
Registry before 1995 and 961 those registered during the years 1995-1999.
The President of
the Court of Appeals, noting the state of emergency faced by the Judicial
Offices of the District, considered the primary target to be elimination of the
category “cases of the last century.” That operation passed through two
intermediate stages: (a) reviewing the reports sent by the various Offices
(previously merely assembled from the DGStat) with elimination of any possible
errors or omissions; (b) annual analysis of individual items, distinguishing
five types of “civil affairs” (contentious cases in the strict sense,
executions on Real Estate, executions on movable, bankruptcy, voluntary
jurisdiction) in order to flesh out the contentious cases from the total of
indistinct “pending civil affairs” (as has been standard practice for years at
the Court of Turin). After this, the President of the Court of Appeal, basing
on statistical data collected and objectives set, proceeded to draw up a
timetable, for each and any kind of cases, according to their age and kind of
matters dealt with.
Finally, we note
that in addition to the program discussed here concerning the District Court of
the Court of Appeals, where the benchmark, as seen, is the three-year period, a
parallel initiative was adopted for the inner workings of the Court of
Appeals. The so-called ‘internal projectʼ,
which sees the application of some of the guidelines of the ‘Strasbourg
Programmeʼ to the Court of Appeal, was structured according to the same
logic outlined above, but differed completely in respect of the maximum
duration of civil cases pending on appeal was set as two years.
From this overview
of the project first launched and carried out with success at the First
Instance Court of Turin, and subsequently extended to all the First Instance
Courts of the District and to the Court of Appeals, it can be concluded that
the reduction in the duration of the processes and the increase in the quality
of the work of the Office has been a popular development within the judiciary.
The Programme was a forerunner and acted as an inspiration for the law that in
2011 obliged all Italian Courts to adopt this kind of initiatives.
Unfortunately, it was discontinued after the then President of the Appellate
Court quit his office, in 2014.
2. The Program
for the Management of Civil Proceedings ex
Article 37 D.L. 98/2011.
2.1. General Notes
The Italian
lawmaker, in July 2011, concurrently with the adoption of measures of strong
financial and economic impact, felt the need to raise the issue of court
management to positive law. Court management was dealt with in Article 37 of
Law Decree No. 98 of the 6 July 2011, converted with amendments into Law No.
111 of July 15, 2011 (Budget Law). It should be noted that a provision similar
to that provided by Article 37 D.L. (law decree) 98/2011 was already contained
in Article 1 of d.d.l. (law bill) entitled Interventions in the Field of Efficiency
of the Judicial System, approved by the Council of Ministers at its meeting on
February 9, 2011.
Up until that
time, the discipline here in discussion had found no legislative recognition,
thus it remained subject to internal regulation of any court. This does not
mean that legal limits in defines of reasonable length of process did not exist
in the past: more or less stringent measures were already provided by both at
the domestic level and the supranational level; however, according to Italian law,
an obligation to take steps for the preparation of an annual plan aimed at the
management of the workload did not lie on the heads of courts.
2.2. The Content of the Law
Paragraphs 1
through 16 of said Article 37 contain provisions to ensure greater efficiency
in carrying out judicial activities through the disposal of the backlog and the
acquisition of new instrumental and financial resources. The first three
paragraphs, stating the constitutive and operational rules that are
indispensable for the setting and the functioning of an efficient court
management program, constitute the core of the provision. In particular,
paragraph 1 forces each Head of the Court, after consulting with the President
of local District Bar Association, to organise a program for the management of
civil, administrative and tax proceedings, intended to determine:
a) the targets of
reducing the duration of the processes which are concretely achievable in the
current year;
b) the targets of
the performance of the office, taking due account of the workload which can be
imposed on Judges at its disposal and the order of priority in dealing with
pending cases, as identified according to objectives and consistent criteria
that take into account the length of the case, with reference to any previous
areas of jurisdiction and the nature and value thereof.
As it is shown by
the text of the law, among the criteria in question, the verification of the
files which are characterized by earlier sets of proceedings has to be taken
into account; that statement, being the object of a specific indication, should
be read in terms of priorities. According to rulings provided for by the High
Council for the Judiciary about the implementation of that law, the work of the
court has now to be organised by “clusters” of different matters (such as:
bankruptcy, family law matters, labour cases, ordinary civil cases).
In the 2nd
paragraph of said Article 37 it is stated that the program drafted by each
President of the Court has to be adopted by January 31st of each
year, and, from 2012 onwards, should give a summary of the fulfilment of the
objectives of the previous year, or should explain the reasons behind their
failure. Since the drafting of the program is an element of assessment for the
purposes of the confirmation of the President as Head of the Court (Article 45
of Legislative Decree No. 160/2006), after his/her four years in office, it has
to be submitted to both the local Bar Association and to the High Council of
Judiciary.
Unfortunately no
legal provisions exist in the said law (nor in any other legal provision of the
Italian system as a whole) on the need to give judges more flexibility to read
and implement a procedural system like ours, which is the antithesis of
efficiency (what on the contrary, the “Strasbourg Programme” tried to do). So,
those same old and outdated norms can be used (and have been) by lawyers (who,
unfortunately, may find also some heads of courts all too eager to indulge some
of them, at least the most unrelenting), in order to threaten with disciplinary
sanctions the judges who try to make efforts towards a more modern pattern of
organising, managing and resolving trials (which inevitably may be at odds with
the interest of lawyers).
3. The Waking Up of
Awareness on Case Management in
The examples I cited above clearly show
that even in a backward legal environment, like the Italian one, we are
witnessing a waking up of a general awareness of the need to have a different
approach on case management (intended of course as a “systemic case management”
approach, not as the management of single cases, as it happens in the Common
Law legal environment and would be legally impossible in our system).
This phenomenon meets a general trend in
Europe, as it is shown by the setting up within the Council of Europe of the
European Commission for the Efficiency of Justice (Commission Européenne pour l’efficacité de la justice – CEPEJ: http://www.coe.int/t/dghl/cooperation/cepej/presentation/cepej_en.asp).
Furthermore, the CEPEJ set up in
The SATURN Centre is instructed to collect
information necessary for the knowledge of judicial timeframes in the member
States and detailed enough to enable member states to implement policies aiming
to prevent violations of the right for a fair trial within a reasonable time
protected by Article 6 of the European Convention on Human Rights. The Centre
is aimed to become progressively a genuine European observatory of judicial
timeframes, by analyzing the situation of existing timeframes in the member
States (timeframes per types of cases, waiting times in the proceedings, etc.),
providing them knowledge and analytical tools of judicial timeframes of
proceedings. It is also in charge of the promotion and assessment of the
Guidelines for judicial time management.
The Centre is managed through a Steering
group, which works in particular for collecting, processing and analyzing the
relevant information on judicial timeframes in a representative sample of
courts in the member states by relying on the network of pilot courts. Thus it
must define and improve measuring systems and common indicators on judicial
timeframes in all member states and develop appropriate modalities and tools
for collecting information through statistical analysis.
Among the activities of the SATURN
Steering group we can mention the drafting of “Saturn guidelines for judicial
time management.” Such guidelines are aimed to reduce the length of judicial
proceedings. We can also point out that the SATURN Centre has been organizing
in these last years several coaching activities on issue of judicial
timeframes, in countries like
Further information
(in English) on the Italian debate on issues of case management is available
here:
·
G. Oberto,
Study on Measures Adopted in
·
F. Contini
(ed.), Handle with Care: assessing and
designing methods for evaluation and development of the quality of justice,
IRSIG-CNR.
·
E. Silvestri,
Notes on Case Management in Italy, https://ssrn.com/abstract=3158105
or http://dx.doi.org/10.2139/ssrn.3158105.
·
D. C. Steelman
& M. Fabri, Can an Italian Court Use the American Approach
to Delay Reduction?, https://www.tandfonline.com/doi/abs/10.1080/0098261X.2008.10767868.
·
L. Verzelloni,
Reduction of Backlog: The Experience of
the
·
G. Esposito,
S. Lanau, S. Pompe, Judicial System Reform in
·
Imf,
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1. Can case
management be used effectively in civil litigation matters in your
jurisdiction? |
As I explained in the Introduction, case management in
However, a “case management” strategy—or “case management oriented
approach”—on how to address the whole ensemble of cases with which a judge has
to do, can be envisaged, of course under the condition that the court president
endorses it and does not bow to the “orders” of lawyers (or at least, of the
most meddlesome or schemer of them), who have all the interest that the case is
managed in the “traditional” way (which is to say: not managed at all!) in
conformity with their personal interest, which usually is to have their cases
dealt with in the longest possible timeframe, exclusively in accordance with
their personal views and interests.
I am referring here to case management strategies of the sort which I
described in the Introduction: basically addressing first of all the older
cases; trying to reach a friendly settlement despite the attempts of some
lawyers to have their cases last as long as possible; appointing (when required
by the technical aspects of a given case) only experts who have shown in
previous cases to be able to produce readable, reliable and skilled reports and
to be able to convince the parties to reach friendly settlements (event though
this is not in the personal interest of their lawyers); appointing technical
experts who are not used to bow to the “orders” of aggressive lawyers; to deny
adjournments, even if lawyers are asking for them, when there is no concrete
and proven evidence on the need to give time to reach a friendly settlement,
and so on… I repeat: for a judge, showing this attitude means, most of the
times, seriously jeopardising some (many) lawyers’ personal interests. This can
be done, very often, not without risks, especially if the head of the court is
on the side of such lawyers and not on the side of his judges. In other words:
for an Italian judge, showing a “case management oriented” attitude and
mentality can be very, very risky!
|
2. Are
there rules or guidelines for the use of case management in civil litigation
in your jurisdiction? |
Also on this issue I can only refer to the information provided in my Introduction.
Rules or guidelines of this kind were (and are) those of the so called
“Decalogue” of the “Strasbourg Programme,” for the Court of Turin. They may be
therefore given by heads of courts who want to convince their judges of the
need to have and keep a “case management
oriented” approach, knowing that this may be very hardly contested by lawyers.
|
3. What are
the advantages or disadvantages of the use of case management in your
jurisdiction? |
The use of case management in our Italian jurisdictions could only bring
about advantages for the system. It would of course, for reasons I gave, bring
about disadvantages for lawyers’ pockets and personal interests. This is the
reason why a real “case management approach” for Italian judges can be very
risky, if judges’ actions are not endorsed by the heads of their respective
courts.
|
4. Who
incurs the costs of the use of case management in your jurisdiction? |
As, in practice, practically no case management (in the above indicated
sense) is currently implemented in our jurisdictions, at least as a general way
of treating civil cases, the “costs” for this lack are incurred by parties, who
see their cases addressed in the framework of proceedings which last unbearable
amounts of time, with burdens of procedural costs, which very often outnumber
the amount of money expressed by the value of that given case, whilst most of
such litigations could be solved quickly and with a very low level of expenses,
if only judges were really encouraged (and entrusted the powers!) to fight
against lawyers’ delaying tactics.
|
5. Can the
use of case management in your jurisdiction be improved? |
Before being improved, case management should be introduced... Heads of
courts should be authorised (even better: compelled!) by law to issue
recommendations to their judges of the same kind of those of the above
mentioned “Decalogue” of the “Strasbourg Programme,” so to encourage them to
effectively fight against delaying techniques and tactics by lawyers.
Giacomo Oberto
Judge – Court of Turin (
Secretary-General of the IAJ