Judge of the First Instance Court of Turin (Italy)
President of the SATURN Group of the CEPEJ (Council of Europe)
Secretary-General of the International Association of Judges
MANAGING QUALITY AND EFFICIENCY OF JUSTICE:
ITALIAN STRATEGIES IN CASE MANAGEMENT
Presentation for the
on the subject:
“Quality And Efficiency Of Justice: Global Trends And Best Practices”
Organised by the International Association of Judges and by the Judges Association of Kazakhstan
In the Framework of the 2019 Annual Meeting of the International Association of Judges
(Nur-Sultan, Kazakhstan, 18th September, 2019)
Table of Contents: I – CASE MANAGEMENT IN ITALY AND EUROPE: FROM THE “STRASBOURG PROGRAMME” TO CEPEJ-SATURN GUIDELINES – 1. The ‘Strasbourg Programmeʼ of Turin’s Court: An Inspirational Forerunner. – 1.1. The Programme in the 2001 Version. – 1.2. The Success of the Initiative. – 1.3. The District Directive of 16 May 2011: Extension of the Strasbourg Programme to All Courts of Piedmont and Valle dʼAosta. – 2. The Italian Program for the Management of Civil Proceedings ex Article 37 D.L. 98/2011. – 2.1. General Notes. – 2.2. The Content of the 2011 Law. – 2.3. Conventions Concluded Between the Courts and Universities. Judges’ Assistants. – 3. The Waking Up of Awareness on Case Management in Europe. – 4. New Approaches and Tools on Case Management in Europe: Case Weighting and Dashboards for Court Management. – II – POSSIBLE STRATEGIES FOR AN EFFICIENT CASE MANAGEMENT – 5. Selection and Training of Lawyers. – 6. Simplification of Procedures before the Courts. – 7. Judicial Discretion: Powers of the Judge in Civil Cases. – 8. Gathering Evidence in a Quicker Way. – 9. Written Reasoning of Judgements. – 10. Suppression of Procedural Abuses. – 11. Summary of Recommendations. – III – INFORMATION TECHNOLOGY AND E-FILING AS MEANS FOR AN EFFECTIVE CASE MANAGEMENT – 12. The Use of Information Technology in Civil Litigation Matters in Italy. – 13. Main Features of the Italian Electronic Filing System in Civil Cases. – 14. Pros and Cons of the Italian Electronic Filing System in Civil Cases. – 15. Effectiveness and Effects of E-Filing in Civil Litigation Matters in Italy. – 16. Rules and Guidelines for the Use of Information Technology in Civil Litigation Matters in Italy. – 17. Security Issues.
CASE MANAGEMENT IN ITALY AND EUROPE:
FROM THE “STRASBOURG PROGRAMME” TO CEPEJ-SATURN GUIDELINES
The expression “Case Management” in Italy and continental Europe is usually intended in quite a different way, if compared with the meaning these words have in a Common Law legal environment. Actually, the very idea that judges and lawyers can sit around a table and define for a given case how that litigation, that particular case, can be managed in order to be brought either to a friendly settlement, or to a contentious judgement in the most expeditious, convenient and efficient way, is something unthinkable in our tradition. Actually, our civil litigation is something where parties will make their submissions and the judge will judge: and that’s all. However, in these last years a different “philosophical” approach has started in some legal systems and jurisdictions, under the direction of some illuminated court presidents, even though their initiatives not always have been successfully met in our old fashioned judicial environment, nor have been continued by their followers. Therefore the idea of case management which is now starting to be affirmed in Italy (and the rest of continental Europe) indicates a new kind of approach to dealing with judicial work as a whole, trying to put in order and make more efficient the treatment of judicial caseload, so to reduce to zero the amount of the backlog and to avoid that a new backlog forms.
One of the first evidences of this new awareness, just to give one of the many possible examples, is represented by the so called “Strasbourg Programme” of the Turin First Instance Court. Here I provide some information on it.
The Strasbourg Programme is the first court and case management experiment in Italy, aimed at achieving a significant reduction of backlogs and the expedition the processing of civil cases. The initiative was put in place from the year 2001, based on an idea of the then President of the Court of Turin, Dr. Mario Barbuto. Since 2009 and until 2015 it has been continued by his successor, Dr. Luciano Panzani and terminated when the latter left his office. The program has earned a special mention in the “Crystal Scales of Justice” price (Edition 2006) of the Council of Europe. Here a short list of key points, together with a brief explanation.
· 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 are then classified into five groups by complexity, which correspond 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 have to be considered in violation of the “reasonable time requirement” (Article 6 of the European Convention on Human Rights, as interpreted by the jurisprudence of the European Court of Human Rights: see on this point in particular Length of court proceedings in the member states of the Council of Europe based on the case law of the European Court of Human Right, by Ms Françoise Calvez and Nicolas Regis, Judges (France) 3rd edition by Nicolas Regis - Cepej Studies No. 27, https://rm.coe.int/cepej-2018-26-en-rapport-calvez-regis-en-length-of-court-proceedings-e/16808ffc7b); 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 is also the establishment of a uniform practice in all areas of the Civil Court, without breaking, on the other hand, the principle of autonomy and independence of each judge. The text of the document was then forwarded to the Local Bar Association mainly for two reasons: firstly, to raise awareness of the institution; secondly, to avoid the risk that parties involved in the process would complain that the new course taken by the courts in dealing with disputes was in conflict with their interests, or could be seen as an unexpected and episodic initiative of a minority of judges.
It is worth noting that the “Decalogue,” even if conceived some years before the “SATURN Guidelines for Judicial Time Management,” issued by the CEPEJ of the Council of Europe (upon which see further, Para. No. 3 and 4 of this essay), in many parts deals with issues that are addressed by the said document (in particular in Part V - Guidelines for Judges). Moreover, the same “spirit” of the “Decalogue,” as well as many of the solutions it propose, would seem to be in harmony with the objectives, purposes and methods of the said SATURN Guidelines. To this extent it is possible to define the document adopted in Turin as a sort of SATURN Guidelines avant la lettre.
· 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 is 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, establishes an element of virtuous competition among members of the Courts, a “follow-on” effect that helps to prevent the accumulation of a backlog. This element too was entirely lacking in the past.
· The judge plays an active role in ensuring the rapid progress of the proceedings
The Strasburg Programme contains a set of rules aiming at encouraging judges to make use of their powers to speed up procedures [for some 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: https://giacomooberto.com/study_on_Strasbourg_Programme.htm].
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 Court of Turin.
The President of the Court of Appeals of Turin, in May 2011, has 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 procedures and measures provided for (rectius: extended) by the Directive, the desire to proceed to the identification of priority criteria in dealing with cases must first be noticed. In particular it is provided that the causes entered in the Registry before the last three years (i.e., at the time, on April 30th, 2008) deserved a preferential treatment than others, in accordance with the aforementioned “Decalogue.” This document, in its Rule No. 1, stated the following: “All processes pending for more than three years before the civil sections of the main office and any sub-offices will be distinguished by a special stamp (or cover) with different colour bands for the following brackets: a) cases prior to year 2001 (so-called ‘cases of the last centuryʼ); b) cases entered in the Register over the years 2001-2002-2003-2004-2005; c) cases entered in the Registry in the years 2006-2007; d) cases entered in the Registry in the first half of 2008 [...]. The treatment of these causes should be privileged over other, possibly by setting specifically reserved hearings.” In this way the President of the Court of Appeal has determined a “priority distinction” for civil cases of first instance, uniform throughout the District, and modelled on the FIFO pattern.
Finally, by a letter dated May 18th, 2011 (Prot. No. 2890/S), official contacts with the Regional Union of Councils of the Bars of Piedmont and Valle dʼAosta, aimed at seeking the achievement of this goal jointly with the lawyers of the District, have been set up. Their agreement has proved to be full and unanimous.
As for the previous experience in the First Instance Court of Turin, a prerequisite for successful starting of the program has been 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 (caseload).
Except for the First Instance Court of Turin, this operation represented a breakthrough with the past: in sixteen courts of the District—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) has been scrutinized. Moving to data, the response offered by statistics on the Court’s District was alarming (always excluding the Court of Turin): 728 were the cases registered in the Registry before 1995 and 961 those registered during the years 1995-1999 (over ten years).
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 backlog of cases lasting over ten years: a category called “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 teal estate, enforcements on movable assets, 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). In this latter regard, between April 13th, 2011 (date of the first plenary meeting devoted to the project) and October 5th, 2011 (date of the second meeting to check the progress of the project), the Statistics Office of the Court of Appeals, on the basis of data provided by almost all Courts, has prepared six different census models for the “cases of the last century.”
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, is structured according to the same logic outlined above, but differs completely in respect of the maximum duration of civil cases pending on appeal is set as two years.
From this overview of the project first launched and carried out with success at the Court of Turin, and subsequently extended to all the 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 such initiatives.
The Italian lawmaker, in July 2011, concurrently with the adoption of measures of strong financial and economic impact, has felt the need to raise the issue of court management to positive law. Court management is dealt with in Article 37 of Law Decree No. 98 of the 6th July 2011, converted with amendments into Law No. 111 of July 15th, 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 9th, 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.
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). This will surely help the organisational work of the Presidents.
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.
Returning to more general considerations, two aspects deserve to be highlighted. On the one hand, the organization of the program criteria is sufficiently broad and general, such as to ensure the autonomous assessment of the individual President (of the Court) in relation to the different needs of each judicial situation. On the other hand, substantial organizational skills which, in themselves, are not part of the traditional baggage of the judge, have to be developed by each President; in fact they will be of considerable importance in relation to career aspirations, as evidenced by Paragraph 2, according to which, the surveillance on the program and its compliance is being evaluated for confirmation of the President as head of the office.
Paragraphs 4 and 5 of the said Article 37 introduced an interesting novelty into the Italian panorama. In taking inspiration from foreign experience, these provisions present the opportunity to enter into special agreements between the Heads of the Courts on one side and the schools of specialization for the legal professions, the local Bar Association and the universities on the other. These conventions allow some students (whom have attained certain levels of excellence) to replace a year of a Ph.D. or graduate course or traineeship with a period of professional education at the Court, attending and assisting the judges in the research and preparation of drafts of judgment. There are no compensation or retirement benefits; moreover, the relationship between the parties is not established under any public contract of employment; that confirms the non-onerous character of these conventions. So here is another tool that the lawmaker has parsimoniously put in place to enhance existing resources while keeping a tight grip on the purse strings.
The figure of the judge assistant, already present in the Constitutional Court, is of considerable potential value, both for the experience that gained by the young graduate and for the utility of the research assigned to him can lead to a prompt decision of the dispute.
However, it has to be pointed out that paragraphs 4 and 5 only provide for the mere possibility that the Court enters into agreements with such bodies; they do not impose a legal obligation to take steps in that direction (in contrast to what has instead been provided for the preparation of the annual planning referred to in paragraph 1 of that article). Therefore, these provisions, were introduced with the purpose of allowing the establishment of the “Office of the Judge” (i.e. a working group under the direction of each judge and deputy to give him assistance in his work). That “office” should result, according to the scope of the law, in a considerable increase in the productivity of each individual judge, which means a decrease in the time required to process the cases. However, that those provisions failed so far to produce results in the short-term, at least in the courts which had not previously adopted a programme like the “Strasbourg Programme” of Turin’s First Instance Court. Actually, the chronicle lack of material means and staff is not helping in implementing the above mentioned provisions. The results can only be appreciated in the long-term.
A further step has been introduced by Article 73 of the law decree No. 69 of 21st June, 2013, converted into law No. 98 of 9th August, 2013.
This provision allowed young graduates to directly ask the Head of a given Court to be recruited as assistant for a judge for a period of eighteen months. Some requirements are provided for by the said legal provision, referring to the age (candidate must not be older than thirty), the score he/she got when he/she got licensed, etc. The initial idea had been of rewarding such period of apprenticeship (which is not paid in any way) by allowing trainees to directly apply for the competitive State examination to become judge (or prosecutor). Formerly such right were given only to people having been licensed by a Specialization School for Legal Professions, after having successfully passed a two year training period of attendance (this, of course, after a five year period of study in a Law Department of a University), or to candidates having a Ph.D., or to lawyers who passed their Bar Exam. Of course lawyers opposed the above referred proposal, as it could have been a way to contribute to the solution of the problems of the length of civil procedures.
The provision introduced in 2013, as finally approved by Parliament, states that a judge assistant (who, of course is a law graduate), after having completed his/her eighteen month long training period, will be entitled to try the public competitive examination which gives access to the position of judge or prosecutor. The completion of the said training period is therefore an alternative to the Bar Exam, or a Ph.D., or the diploma at the end the two year period of scholarship at a Specialization School for Legal Professions, as one of the requirements to try the examination. But this competitive examination is largely based on law essays to be submitted in a three-day marathon, where candidates are called to submit three written essays on civil, criminal ad administrative laws, Unfortunately, as the skills of the prospective judges are assessed purely on the basis of their theoretical knowledge, very little weigh is given to the practical know-how that candidates can acquire during their internship in a given court. This explains why very few people are currently submitting their candidatures for the position of judge’s assistant.
On the other hand, in some courts (like mine) it was decided to have such assistants move from one judge to another during their training period, so that concerned judges are now refusing to co-operate in such a project. Actually, taking into account the extreme complexity of judicial work and the absolute lack of the minimum standards of judicial skills in the assistants (due to the failure of current Italian law schools to provide minimum educational standards), judges are often called to spend at least six to nine month to “instruct” their assistants in the essentials of material law, procedural law and use of e-filing system (see further, under Para. No. 13-17 of this essay), so that, when the assistant is ready to finally assist the judge, he/she has to move to another office and the judge has to start again with this Sisyphus’ punishment!
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.
This phenomenon meets a general trend in Europe, as it is shown by the setting up in the year 2003, 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 2007 a special working group, called “SATURN Centre for Judicial Time Management.”
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. (Further information on CEPEJ-SATURN available here: https://www.coe.int/en/web/cepej/cepej-work/saturn-centre-for-judicial-time-management).
Among the activities of the SATURN Steering group we can mention the drafting of “Saturn guidelines for judicial time management” (see: https://rm.coe.int/cepej-2018-20-e-cepej-saturn-guidelines-time-management-3rd-revision/16808ff3ee). 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 Germany (Freiburg i.B.), Slovakia (Bratislava), and Italy (Syracuse). Many initiatives on the issues of case management have been carried out in countries such as Turkey, Morocco, Tunisia, Jordan, Armenia, Azerbaijan, Georgia, Republic of Moldova, Malta, Israel, Egypt and Ukraine. (For an updating of the information concerning the activities of CEPEJ-SATURN see: https://www.iaj-uim.org/iuw/wp-content/uploads/2019/06/Oberto_Presentation_for_ECHR_oral.pdf).
Additional information (in English) on the Italian debate on issues of case management (in Italy and Europe) is available here:
· G. Oberto, Study on Measures Adopted in Turin’s Court (“Strasbourg Programme”) along the Lines of “Saturn Guidelines for Judicial Time Management”, https://www.giacomooberto.com/study_on_Strasbourg_Programme.htm.
· F. Contini (ed.), Handle with Care: assessing and designing methods for evaluation and development of the quality of justice, IRSIG-CNR. Bologna, 2017,
· 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 Strasbourg Programme and the Census of Italian Civil System,
· G. Esposito, S. Lanau, S. Pompe, Judicial System Reform in Italy—A Key to Growth, https://www.imf.org/external/pubs/ft/wp/2014/wp1432.pdf
· Imf, Italy, selected figures,
The Steering Group of the SATURN Centre is currently studying an array of new tools and systems to deal with contemporary challenges in the field of case management. These sectors represent the new challenges of case management in Europe.
In this framework I would like to mention in particular the issue of Case Weighting, whose main aim is that of allowing allows a Court (or a Court system as a whole) to assess the complexity of the cases they have to deal with. The Steering Group is therefore working (with the help of two scientific experts) on a document, whose main features are:
· Awareness of the fact that, in a nutshell, two different kinds of approaches are possible:
o (a) the approach based on the time, implying a breakdown of the trial stages and the measurement of the length of each stage. Such measurement can be done in two different ways:
§ (a) 1. concrete measurement of actual working time, through a survey among judges (like in Israel e.g.), or
§ (a) 2. theoretical estimation of average working time, through a study made by experts (like in Austria, or in Germany, e.g.) and
o (b) the approach made of points, based on criteria of complexity of the case. In this framework a total number of points can be assigned for various case-related factors such as:
§ number of pretensions in a case,
§ number of lawyers’ submissions in a case,
§ number of pending cases in a court,
§ time required to examine a case,
§ number of parties,
§ number of hearings,
§ need to hear witnesses (and number of them),
§ need of one or more expertises, etc.
· Experience acquired through a study visit to the Supreme Court of Israel, which studied and implemented a remarkable time-based method.
· Results acquired through a questionnaire spread among CEPEJ national correspondents.
· Awareness of the fact that in several legal systems some kind of “mixed” (time-related and point-related) systems of case weighting are possible.
The objectives of a case weighting systems can be different and not all of them may be pursued in every country. Among these objectives, there are the following:
· Assessment of the number of judges needed to manage the caseload at the national and local level.
· Balanced/Equitable distribution of the cases among court divisions and then single judges.
· Evidence based allocation of judges in the various courts or within a court in the different divisions.
· Empirical based analysis of judges’ efforts to manage cases.
· Meaningful comparative data analysis among courts or different divisions within the court.
· Planning resource needs (i.e. buildings, ICT infrastructures, budgets, etc.) and their distribution.
· Identify critical issues in the court procedures.
· Identify judges’ good practices to manage cases.
· Planning specific programs for the reduction of the length of the proceedings.
Another relevant activity within the CEPEJ-SATURN deals with the question of Dashboards for Court Management. Actually, the Working Group instructed the CEPEJ Secretariat to continue collecting information on existing dashboards. On the basis of the analysis of several European experiences the CEPEJ-SATURN’s work on court management dashboards is to produce a common template that would be made available to all European courts, containing guidelines on the data, tables, graphics and indicators that could be included in a dashboard template (on the number of cases per judge or the duration of cases, for example in the light of the discussions held at the Pilot courts meeting), along with a number of examples.
POSSIBLE STRATEGIES FOR AN EFFICIENT CASE MANAGEMENT
The rise of awareness about the need to use efficient case management systems in Italian and European courts plays a key role in moving towards a modern and fair justice system. However we cannot ignore the importance of other factors which may influence the way justice works (or doesn’t work) in a given country.
Actually, the main reason for Italy’s troubles in the justice system lies in our law schools (or “departments”, as they now call them, according to the Italian vice of resolving problems by simply changing names of things…). As a matter of fact, these institutions have been constantly used in the last thirty-forty years by professors (who normally in Italy are first of all lawyers, devoting 90% of their time to their professional activity, rather than to teaching…) as nothing more than “parking lots” for relatives, friends, friends of relatives, relatives of friends, lovers, brethren of Masonic lodges, etc. Reforming Italian justice system would first of all require radical changes in the legal education system: drastic reduction of number of law departments, serious selection of professors, based on their real teaching skills, instead than on personal relationships and/or the number of kilos of papers they have “produced.”
A process of common legal initial training for future judges, prosecutors, lawyers, notaries, legal experts and law professors should be introduced, as it happens in Germany. Financial issues related to this system should be addressed by strictly reducing the access to such training, through competitive examinations for young law graduates.
I can personally witness that the vast majority of cases brought before me could be easily resolved without even going to the court, on the basis of a little bit more good will from the parties and also of a little bit more knowledge of the law by concerned attorneys. The issue deals therefore with the delicate topic of legal training for all the actors of judicial proceedings and first of all for lawyers. A well trained lawyer can understand how risky or useless can be lodging a case with the Court for frivolous litigations. Once the process has started, it is very hard for the judge to convince parties to find an amicable solution, because parties have already made expenses and lawyers know that the longer the proceeding is going to last, the more they will be earning.
The current staggering figure of Italian lawyers (roughly 260,000) should impose the need for a numerus clausus of them (one tenth of that figure would be more than enough for an aging and economically declining society, as the Italian one is).
Furthermore, in the next years to come, a new common training system for all law practitioners should be introduced at the European level. I am personally convinced that the only possible solution to the Italian problems I cited before cannot come from inside a system, which is basically flawed and corrupted, but should come from an outside and supranational level. Therefore I must confess I am very much dissatisfied with the current European engagement in the field of legal and judicial training: the European Judicial Training Network should be radically reformed and turned into an institution which, rather than simply co-ordinating local schools and organisations, directly takes the initiative to organise training activities all over Europe. This could happen gradually: a first step should be to entrust this European Training Institute (and not merely “Network”) with the task to organise training in European Law matters; as a further step it could take on its shoulders all training initiatives for judges and prosecutors, as well as for lawyers.
More generally, the whole process of legal training (from universities and law schools to judicial initial training) should be part of European law and managed exclusively at European level through regulations binding for each and any EU country. But I must confess this is mere utopia!
Procedural rules should limit themselves to set forth only very few basic principles (e.g.: right to defence; contradictory procedure rules; right to appeal in given cases; different “tracks” for different kinds of cases, etc.).
Quite on the contrary, the Italian civil and criminal procedural rules have been developed in these last forty-fifty years along very different guidelines. The real (of course, never confessed) aims have been for the criminal procedures to make them totally ineffective, with the purpose to allow wealthy and white collar offenders (a certain number of them institutionally belonging to the machinery of law-making process) to avoid being sentenced for their crimes. Italian corrupted politician understood very well that the degree of judicial independence of the judiciary could have been a serious risk for them; a risk that could be averted only by making criminal procedures long and cumbersome, especially taking into account that peculiarity of Italian legal “cuisine,” which is the statute of limitation, that in Italy can be prevented only by the final judgement of the Supreme Court of Cassation. The result is that the Supreme Court has been flooded in these times by no less than 50,000 appeals in criminal matters every year; the vast majority of them has been lodged with the only hope (that unfortunately turned itself into reality…) that the crime becomes statute barred before the final verdict. Another very important result has been reached by the authors of this shameful system: to cast upon judges the blame for this preposterous state of things, so making the whole Judiciary unworthy of trust in the eyes of people.
As for civil cases, the complexity of procedural rules meets the need of our 260,000 lawyers to rely upon a sufficient number of litigations (and sub-proceedings within each litigation) to live on. As Italian lawyers dispose of a wide representation in our Parliament, all procedural reforms of the last decades have been officially presented as the “solution” for the sluggishness of civil procedures, while actually adding further procedural complications, sub-proceedings, new proceeding. Worst of all, these reforms have brought about an absolute uncertainty in all the parts of civil procedures. The result is that currently an increasing number of cases are decided on the basis of procedural rules, than on substantive issues which are (or should be!) at stake.
Already many years ago, Recommendation n° R (84) 5 of the Committee of Ministers of the Council of Europe to member States on the principles of civil procedure designed to improve the functioning of justice (Adopted by the Committee of Ministers on 28 February 1984 at the 367th meeting of the Ministers’ Deputies) provided for that “The court should, at least during the preliminary hearing but if possible throughout the proceedings, play an active role in ensuring the rapid progress of the proceedings.” Whilst legal systems of many European countries provide judges with adequate powers to “set the pace” of proceedings, the Italian Code of Civil Procedure leaves very little room to judicial discretion, also in the field of compliance with the “reasonable time” requirement set forth by Article 6 of the European Human Rights Convention.
I would like to underline that, for example, most civil cases in Italy, regardless of their value and difficulty, can be dealt with by the judge not before six months after they have started. Actually, plaintiff has to grant defendant at least 3 (three!) months to allow him/her to prepare his/her defences. According to Article 163-bis of the Italian Code of Civil Procedure, between the day in which summoning act has been served to the defendant and the day of the first hearing before the judge, at least ninety days must elapse (in case the summon act has been served in a foreign country that period of time is of hundred and fifty days).
After this, Article 183 of the same code provides for that if at the first hearing one of the parties makes such a request, the judge must give an adjournment of no less than 80 (eighty!) additional days, in order to allow parties to further develop their arguments, “fine-tuning” their petitions and pretensions. Such further adjournment cannot be avoided, if at least one of the parties requires it, even in cases where there is absolutely nothing to add (what happens at least in 90% of litigations). What happens in fact is that lawyers just “need” the adjournment in order to “add” it (as well as the three further additional written petitions they have the right to submit meanwhile, very often through a simple “copy and paste” operation) on the their final check for the liquidation of their fees and honoraries.
It is therefore clear that in Italy the judge has little or inexistent power to fix a “quick start” of the case, as, in the “quickest” imaginable solution, the Court can practically start dealing with a case not sooner than six months after it has started. This means that the judge can start playing a pro-active role only after that (at least!) a good half of the first year of the “reasonable timeframe” has already elapsed.
Quite on the contrary, if the politicians really wanted to have speedy civil proceedings, they should leave each and any power to set deadlines and timeframes only with the judge. It should be up to the judge to decide what timeframe is appropriate for the defendant to prepare his/her defences and if and when and for how long time adjournments should be granted or denied.
One of the “bottlenecks” which bring about heavy losses of precious time in civil proceedings is produced by the procedural phase in which evidence is gathered. It is a common custom for Italian lawyers to ask the judge to hear witnesses on almost any aspect, very often quite irrelevant, of the case. The proceeding of hearing witnessing is time consuming, as very often they do not show and therefore hearings have to be adjourned. In my opinion, oral witnessing should be replaced by sworn statements of affidavit before public notaries. Judges should be trained to hear witnesses only in very exceptional cases, when the case cannot be decided on the basis of documents.
Another curious “delicacy” of the Italian legal “cuisine” is the formal questioning of parties. Actually, Italian law does not extend the statute of witness to parties of a case. This means that parties have the right not to tell the truth. Questioning of parties could theoretically be useful in the only case they admit something against their interest, which actually almost never occurs. Such old rules had a sense in times when citizens were generally illiterate and uneducated and, being before a judge, could easily be intimidated and admit the truth. Nowadays (especially taking into account the very little degree of respect for judges, brought about by years and years of attacks and denigration on the Judiciary) no one feels embarrassed openly lying before a judge, especially when personal interests are stake. This explains why I call this kind of remedy “The most useless procedural remedy in the world.” Unfortunately, the interest of lawyers is to stuff procedural files with all possible kind of acts, documents, petitions and activities, in order to try to get higher fees for this. It is self-evident that this curious and outdated procedural step should be fully set aside by the law.
Italian legal tradition adopts a system for the reasoning of judgements which appears to be more suitable to long and detailed “treaties.” The advantage of this system is that lawyers may find in the reasoning answers to the issues and legal questions they raised during the case, as well as reasons and bases for filing an appeal. The disadvantage is that judges, “frightened” by the need to thoroughly and at length explain reasons for a case, may be tempted to differ the moment of the judgement, thus hoping to persuade parties to abandon their disputes and to find a friendly settlement of the case, what unfortunately may not always happen.
So, another “bottleneck” of Italian civil justice is the timeframe between the moment in which a case has been prepared by acquiring evidence and the moment in which it comes to a decision. This shows that one of the problems possibly causing judicial delays is brought about by the activity of reasoning in written the case.
Luckily, some years ago, a reform affecting some provisions of our Code of Civil Procedure and obliging judges to be more concise was approved. But the weight of a tradition dating back of centuries is still very strong.
Let me here mention a provision of the so-called “Strasburg Programme,” the first experiment of case management in Italy, started in 2001 by the President of my Court (see above, under Para. No. 1 of this essay), which enshrined, among other things, this recommendation to all judges of the Court: “Judicial decisions have to be reasoned in a concise form, as provided for by Article 132, Second Paragraph, No. 4, of the Italian Code of Civil Procedure and by Article 118, Second Paragraph, of the Provisions for Implementation of the Italian Code of Civil Procedure. Only questions relevant for the decision of the case should be taken into account. Judges should keep into account that the essence of reasoning is explaining the decision and not displaying erudition. Judges should always comply with deadlines provided for by the law for deposit their decisions.”
Training on the drafting of judicial decisions could also be of some effect. An increased use of reference to judicial precedents, available in electronic format could as well be of use, in reproducing passages of former judgements, which the judge could deem applicable to the case he/she is dealing with. Lawyers should be compelled to provide an electronic version of their acts, so that relevant passages of their remarks could be used for the reasoning of the judge, when he/she thinks this could be useful. The same is true for protocol of hearings with evidence (witnesses’ depositions, experts’ remarks, etc.).
In this framework a mention should be made also to the effort of reaching a sort of “standardisation” of the most common kinds of interim and provisional decisions. On this topic a working group is active in my Court. Let me just add that an uniformisation and a standardisation of (at least) less relevant decisions fits with the European example. Actually a whole array of legal decisions in matters such as taking of evidence in foreign countries, European order for payment procedure, recognition and enforcement of judgments, etc., are taken (and have to be taken!) making use of forms available on the Internet, which are joined as an annex to different EU regulations.
Finally it must be added that some proposals have been made in the past years at governmental level, aiming at introducing a rule according to which reasoning of the judgements of first and second degree should become mandatory only in case a party decides to appeal it. Of course, lawyers have already declared themselves against such proposals, which never became law.
Another example could be set by the French example of “jugement à phrase unique” (judgment consisting of only one sentence, which actually forms the object of a debate in France). I may here refer to some comparative remarks I made already some years ago in article I published on the problem of the reasoning of judicial decisions, under an historical and comparative viewpoint (see Oberto, La motivazione delle sentenze civili in Europa: spunti storici e comparatistici, available at the following web page: https://www.giacomooberto.com/milano2008/sommario.htm, esp. https://www.giacomooberto.com/milano2008/francia.htm).
The issue of procedural abuses has been dealt with many times by the Council of Europe. Thirty years ago the already mentioned Recommendation No. R (84) 5 provided for as follows:
1. When a party brings manifestly ill-founded proceedings, the court should be empowered to decide the case in a summary way and, where appropriate, to impose a fine on this party or to award damages to the other party.
2. When a party fails to observe the duty of fairness in its conduct of the proceedings and clearly misuses procedure for the manifest purpose of delaying the proceedings, the court should be empowered either to decide immediately on the merits or to impose sanctions such as fines, damages or declaring the procedure barred; in special cases it should be possible to require the lawyer to pay the cost of the proceedings.
3. Professional associations of lawyers should be invited to make provision for disciplinary sanctions in cases where one of their members has acted in the manner described in the foregoing paragraphs.”
A few years ago the “Saturn Guidelines for Judicial Time Management – Part V. Guidelines for Judges” set up following principles:
“D. Suppression of procedural abuses
1. All attempts to willingly and knowingly delay the proceedings should be discouraged.
2. There should be procedural sanctions for causing delay and vexatious behaviour. These sanctions can be applied either to the parties or their representatives.
3. If a member of a legal profession grossly abuses procedural rights or significantly delays the proceedings, it should be reported to the respective professional organisation for further consequences.”
Judges, on their part, should be more attentive to the need to find ways to “punish” incorrect behaviours by parties and lawyers. Currently Italian procedural rules give the judges some powers in this sense. First of all Article 116 of the Italian Code of Civil Procedure allows the judge to take into account parties’ behaviour in order to adjudicate the case. Let me bring an example on this. It happens some times that a party (or his/her lawyer) does not co-operate with the expert appointed by the judge, not providing information the expert requires, or having the expert fix dates for inspecting a building, or a machine, etc. and then not attending on that occasion. Under such circumstances the judge can take into account such facts and decide the case against the party who did not co-operate.
A new version of Article 96 of the same Code provides for now that, even without a particular request on this point, the judge can ex officio sentence the party losing his/her case to pay a sum of money (to be fixed by the judge) to the other party, when the case or the defences of the losing party are frivolous. Older judges are much more linked to “lenient” practices of the past, but I have very much confidence in new generations of judges, who are much more ready to apply sanctions against disloyal parties and attorneys. Once again, specific guidelines on this topic by the Head of the Court could be of use in persuading “older” judges to take into account, when the case has to be adjudicated, of the behaviour of parties and lawyers.
It has also to be mentioned that the extension of the “Strasbourg Programme,” which had been operated in 2011 by the President of the Turin Court of Appeal to all the Courts of the Piedmont District, provides for that the judge has to determine legal fees, as a general rule, in the amount which has been asked for by the process winning party. The judge should as well make use of the provisions enshrined in the above mentioned amended version of Article 96 of the Italian Code of Civil Procedure, each time he/she deems the case is frivolous. This should be done also when the winning party cannot give evidence about the prejudice suffered, as frivolous litigation and procedural abuses should be fought against, as a source of indirect prejudice to the State’s budget for unduly lengthening judicial timeframes and of a direct prejudice to the other party for delaying the moment in which truth will be ascertained.
Finally, de lege ferenda, it should be suggested to empower the judge to directly inflict sanctions to lawyers. Currently the only power of the judge is to defer lawyers to the local Bar, where it occurs only very, very rarely that a lawyer is sanctioned, even if he/she has committed serious breaches.
It can be of some use to try to summarise here some possible solutions of issues I have been dealing with so far.
· Introducing radical changes in the legal education system: drastic reduction of number of law departments, serious selection of professors, based on their real teaching skills;
· Introducing a system of common legal initial training for future judges, prosecutors, lawyers, notaries, legal experts and law professors, similar to the one existing in Germany;
· Introducing a numerus clausus for lawyers;
· Introducing a new common training system for all law practitioners at the European level on matters of European Law;
· Drastically reducing the number of rules of civil procedure, reducing them to only very few basic principles (e.g.: right to defence; contradictory procedure rules; right to appeal in given cases; different “tracks” for different kinds of cases, etc.);
· Increasing in a consistent way powers of judges, especially as far as the procedural “planning” of the case is concerned: Judges (and not the Articles of the Code) should have the power to set deadlines and timeframes for parties. It should be up to the judge to decide what timeframe is appropriate for the defendant to prepare his/her defences and if and when and for how long time adjournments should be granted or denied;
· Replacing oral witnessing by sworn statements of affidavit before public notaries. Judges should be trained to hear witnesses only in very exceptional cases, when the case cannot be decided on the basis of documents;
· Completely abolishing the outdated remedy of the “formal questioning of parties;”
· Inviting judges at all levels (also at the Supreme Court level) to write reasonings of judgement in a much more concise way;
· Abolishing the need for reasoning of judgments when judgements are not appealed;
· Convincing judges of the need to make use of already existing remedies against procedural abuses and frivolous cases;
· Empower judges to directly sanction with fines and disciplinary measures lawyers who are liable of procedural abuses and frivolous cases.
INFORMATION TECHNOLOGY AND E-FILING
AS MEANS FOR AN EFFECTIVE CASE MANAGEMENT
It is useless to say that IT and e-filing play a key role in the issue of a modern and efficient case management. The Italian experience can be taken as a good example of both positive and negative features in tackling with this kind of challenges.
Actually, the use of technology in civil litigation matters in Italy must be viewed under two distinct aspects.
The first one concerns what we call in my Country “informatica giuridica documentale” (or “documentary legal IT”), that means the use of IT for the purpose of retrieving laws, judgements, articles of legal doctrine and other materials, to be found in legal data bases, consulted and used by jurists (judges, lawyers, notaries, law professors, law students, law clerks, etc.) in their work (writing judgments, drafting legal essays or books, preparing defences in a trial, etc.). This kind of technology has been in use in Italy for a very long time, since the early Seventies of the last century, when the huge data base of the Italian Supreme Court of Cassation was set up and connected with all Italian Courts via “dedicated” telephone lines. This very complex and useful system is still in use and constantly updated on the Internet (www.italgiure.giustizia.it), whereas a great number of “private” initiatives (mainly under the co-ordination of law publishing companies, university centres, law schools, law firms, etc.) of this kind have flourished in the last years and are also available online, some of them free of charge, others through a subscription plan.
We can say that, without any doubt, this part of the IT world connected with the activity of courts is by far the most successful and well organised in my country.
The second perspective concerns what we call in Italian “informatica giudiziaria” (or “judicial IT”), which means the use of IT for assisting the day-to-day work of the judges and of the judicial offices and staffs.
Within this field, a capital relevance assumed in these last years the so called “processo civile telematico” project (which in English can be translated into “On-line Civil Trial” or “Electronic Filing System in Civil Cases”), developed by the Italian Ministry of Justice. This initiative aims at increasing the availability of on-line services building a two-way data and document interchange and application interoperability between all the external users (in particular lawyers and judicial experts), all the Courts’ internal users (staff and judges) and all the public administrations involved in civil cases, implementing a high-security PKI (Public-Key Infrastructure) architecture and adopting state-of-the-art technical standards, according to the recently available Italian laws.
As far as this other part of the IT world is concerned, the Italian case does not set a positive example, as the hastily and premature introduction of this non-sufficiently tested system called “processo civile telematico” (e-filing system for civil proceedings), has become, at least in part, a source of inefficiency for itself, as I will show in the next paragraphs.
Main features of the Italian Electronic Filing System in Civil Cases are the following ones.
a) for external users (lawyers and court experts) the possibility to:
· create, digitally sign and transmit their own legal acts, submissions and documents to the defined Court, through a high-security encrypted connection, receiving the official timestamp by the Central System and the digital receipt of acceptance by the Court;
· receive service of acts and Court judgments from the Court at their certified e-mail addresses;
· get full access to the information and the electronic acts, regarding their own civil cases, with a wide range of searching criteria, information retrieval functions and conceptual searches.
b) for judges and their staff, the possibility to:
· receive lawyers’ applications, submissions, acts and documents;
· manage and plan duties, activities, hearings and documents related to the proceedings assigned;
· create, digitally sign and transmit to parties’ legal acts (such as minutes of hearings) and court decisions (lite pendente, provisional, final, etc.);
· set up a database of local case law;
· analyze proceedings’ and documents’ data, thus enabling the judge to perform a case management activity, checking the flow of incoming and outgoing cases, consistence of the case load, compliance with time frames, etc., so to avoid the creation of undue backlogs;
· for office clerks to automatically insert and upgrade information on each step of the civil procedures, thus avoiding manual data-entry and enabling automatic delivering of official notifications to external users.
· In particular, as far as the judge is concerned, every Italian judge is equipped with a so called “judge’s console,” which is a software instrument, installed on a laptop that allows:
· searching and managing of all the assigned proceedings (usually using the names of parties and/or the file official registry number);
· managing of a personal and/ or group (section) agenda, and planning of all judge’s duties and activities;
· receiving, viewing and editing of all electronic files created by the judge him/herself;
· receiving and viewing of all electronic files created and officially sent by the lawyers, such as petitions, acts, submissions, documents, etc.;
· receiving and viewing of all electronic files created and officially sent by Court’s experts, such as the written expertise reports and annexed documents;
· defining and creating legal acts (typically decisions and judgements of any kind) using templates and model documents: similarly to the external user, it’s a Microsoft Word embedded application which, after the choice from one of the available models and automatic insertion of pre-defined text (according to the chosen model), enables the judge (or his staff personnel) to complete the document directly using Word and, once done, to automatically transform it to .pdf document;
· digitally signing and transmitting the decisions to the Court’s staff, which has to “accept” judges’ documents and officially deliver and serve them to the concerned parties;
· (as already said) analyze proceedings’ and documents’ data, thus enabling the judge to perform a case management activity, checking the flow of incoming and outgoing cases, consistence of the case load, compliance with time frames, etc. so to avoid the creation of undue backlogs.
· Most of the “judge’s console” functionalities are also available from outside the Court (typically for home-work) using an external secure connection (though the Point of Access specifically developed for this use by the Ministry of Justice) to the Internet.
Pros and cons of the Italian Electronic Filing System in Civil Cases can be summarized as follows.
· for professionals (lawyers):
o Time and money saving. Useless trips to near or far-away Courts and queues at several front-offices are now avoided, and a better employment of all human resources is made available (however, never forget that, in Italy, this very often means: cutting jobs!).
o Substitution of physical front-offices and traditional paper-based access to files and judgements.
· for judges and judicial staff:
o Online serving system of acts and judicial decisions to lawyers: this is one of the fields in which the Italian Electronic Filing System in Civil Cases has brought a dramatic improvement of the previous system. Actually, before such reform, every time a lawyer did not show up before the Court, it was very difficult to understand if he/she had been duly informed of that hearing (with the consequence that, too many times, useless adjournments were unavoidable).
· for professionals (lawyers), judges and judicial staff:
o System is slow, it often breaks down; even when it works, it is really time consuming. Personally, if I do not want to waste my time, I have to use two PCs at the same time, in order to prepare on the second computer the work that I will later send to the first one, whereas this is still … thinking over my requests.
o System is conceived in such a way to inform and alert the judge of each and any event which takes place in the proceedings: 80% of them are events which do involve judge’s activity, but only have to do with the staff (e.g. the lawyers paid the fees which must be paid for lodging a petition with the Court; the file has been transmitted to the public fiscal registry offices to pay taxes on the judgments rendered by the judge, the staff sent a copy of an act to a lawyer, etc.).
o System does not allow making a distinction between events directly concerning the judge (e.g.: a petition made lite pendente for provisional measures to be urgently given by the judge) and events not concerning the judge at all (see the previous point). Therefore the judge has to click on the file each time he/she receives information on a new event affecting the case, just in order to painstakingly try to understand if this new event requires (or does not require) an intervention by him/herself: the final result is clearly a consistent loss of time for the judge.
o System can be at times very cumbersome. The official editing, signing and delivering procedure for judicial acts (such as interim decisions, final judgments, etc.) is really complex and time consuming: one has to click many times on different areas of the screen, to wait for different replies from the system, to log in with the pw, to check for possible mistakes of the automatic system, etc., whereas, before the implementation of this current IT system, it was much easier to simply print the decision and hand it over to the staff!
o System has not been completely developed yet; this means that for some kind of proceedings (e.g.: “Italian” injunctions, European payment orders, etc.) it is o.k. and functional, as the entire procedure is managed electronically; on the contrary, for ordinary proceedings (which represent the bulk of Italian civil litigations) initial submissions of lawyers must not necessarily be filed through the Electronic Filing System, but can be submitted in paper; this means, in practice, that we can have (and in fact we do have in many cases) proceedings in which the application (and the related documents: sometimes hundreds and hundreds of pages) are on paper, whereas the following submissions (and documents produced by lawyers at a later stage) are presented in the electronic system: which creates a lot of confusion and losses of time for the judge.
o In a nutshell: the Italian Electronic Filing System in Civil Cases is requiring at present days, when compared to the previous “traditional approach”, a much higher level of attention, culture, effort, stress, fantasy and good will by judges, who are called now in Italy to do also the job of the staff: my personal opinion is that what really triggered the introduction of the Italian Electronic Filing System in Civil Cases was the sudden understanding by the Ministry of justice that, in this way, they could have the judges do (also) the job of the staff, so sparing the money to hire new staff (what indeed the Ministry did, as the last large public competitive examination to hire judicial staff was held in 1997 !).
Further information (in English) on the Italian Electronic Filing System in Civil Cases available here:
The question in Italy is no longer if technology “can” be used, because now it “must” be used, at least by the judge (whereas many lawyers dispose of the material means to hire ad hoc staff).
Problem is that, in order to properly work, our system requires not only the “good will” of judges, who must accept the idea of changing the way they have been working for years or decades, but also the constant assistance of technical staff, duly trained to solve all the possible problems which arise from the use of this technology. It requires as well that the judge be assisted also (what in Italy is absolutely not the case) by the “traditional” kind of staff/clerks, who may help him/her in the preparation of cases: looking for precedents and case-law, trying to summarize and very often to understand the meaning of the hundreds and hundreds of (many times absolutely useless and unreadable) pages of the lawyers’ submissions, select among the redundant pieces of information provided by the IT system on each and any case, what are those on which the judge is called to take a decision, etc.
It must be added that, despite the above mentioned and described compulsory system of Electronic Filing System in Civil Cases, digital recording of court proceedings is not yet foreseen in Italy. Therefore we still rely on the drafting of written minutes, which should be taken by a clerk, according to the Italian Code of Civil Procedure, and actually are typewritten by the judge (or written by hand by the lawyers, under the dictation of the judge and then scanned), because of the lack of judicial staff. Another clear anachronism of the Italian system!
A very complex system of laws, by-laws and decrees have been issued in these last years by the Italian Parliament, Government and Ministry of Justice, concerning the above mentioned and described Italian Electronic Filing System in Civil Cases. Just to get an idea one can have a look at web sites such as:
Italy was the first country in Europe to have a specific and complete legislation on the application of IT for the public administration, in particular electronic document and digital signature, regardless of functioning applications and mostly in the justice sector. The proliferation of rules was also led by the particular reasons of “sensitivity” and “security” which justified the production of further rules deemed necessary to adapt, for instance, general rules of judicial proceedings.
Until the ’90s, judicial offices were forced to keep also a hard copy of the electronic case tracking systems. The Ministerial decree DM 27th March 2000 was necessary to certify the full legality of electronic case tracking and management systems when equipped with certain technical and procedural features (Ministerial decree DM 24th May 2001). This did not change the traditional approach to record of judicial offices. The registers have been partially paper based or printed in hard copy for a long time.
When it became necessary to define the concept of electronic document and to regulate in advance the electronic data interchange, particularly to involve external users, a massive production of rules was started. In 1997 the Presidential decree DPR 513/1997 introduced the concept of the electronic document and digital signature that allowed the electronic exchange of documents among public sector agencies, private organizations and the general public. The first technical rules were introduced in 1999 with the Decree of the Council of Ministers (DPCM 8th February 1999), which regulated the use of the “strong” digital signature with a public key infrastructure (PKI), and set out rules and standards for establishing certification authorities.
In 2000 the Parliament issued an act (Presidential Decree DPR 445/2000) for reordering the entire related previous legislation (including the DPR 513/1997) regarding the documentation in the Public Administration. This act seemed to be not applicable for regulating the justice sector. So the Presidential Decree 123/2001 allowed the use of such electronic means for civil, administrative, and fiscal proceedings. In 2002 the Legislative Decree D.Lgs.10/2002 changed the rules again embedding the European Directive 1999/93/CE provisions that allows to use a “lighter” electronic signature instead of digital signature. In addition the Presidential Decree DPR 196/2003, known as the “Privacy Code”, was enacted. It heavily engraved on rules of access and security. It meant to provide other specific ministerial regulations for the judiciary, such as the new Ministerial Decree “Technical rules for electronic means in civil proceedings (Ministerial Decree DM 14th October 2004).”
Again, Law L.15/2005 added new administrative procedures relating to electronic transmissions. In the same year the Parliament enacted the so-called “Code of Digital Administration” (D.Lgs. 82/2005), which contains most of the previous dispositions related to the use of electronic means in public administrations. So it was necessary to enact other technical rules for the document type definition (Ministerial Decree DM 15th December 2005). The Legislative Decree D.Lgs. 40/2006 also introduced the option of sending documents from the external users to the court by certified mail (introduced into the law with the Presidential Decree DPR 68/2005).
Art. 51 of Law L. 133/2008 allowed as well court notifications and service of judicial acts online. It was necessary to provide also a special provision in order to apply these rules (certified e-mail for transactions and online notifications: Decree 193/2009).
All such rules have subsequently been amended and updated by a Ministerial Decree in 2011 (Ministerial Decree 21st February 2011 No. 44) and by a Law Decree in 2012 (Law Decree 18th October 2012, No. 179), integrated and altered by other legal provisions in 2015, which made compulsory, as of June 2014, the online deposit of a number of legal acts for lawyers and judges.
These Italian rules on the Electronic Filing System in Civil Cases design a very complex legal framework and not without any contradictions. Even the jurists find it difficult to work in this tangled web of rules. Its own complexity still replicates the cumbersome nature of the judicial proceeding and legal system, one of the least efficient in Europe. Moreover, there are several kinds of procedures that depend on the type of civil proceedings (employment law, divorce, forced sales, injunction orders, etc.). Little surprise, that a new and very rich and flourishing branch of case-law has developed around these provisions: from the possibility to re-open deadlines in case of lawyers’ mistakes in electronically filing documents and submissions, to the question of the judicial relevance of electronic signature, to possible negative effects of mistakes done by lawyers when making an electronic service of an act to a third party, etc. (see e.g. http://www.processociviletelematico.it/giurisprudenza.html).
As I use to say, civil judges spend nowadays half of their time addressing problems created to them by IT and the other half … tackling with IT related issues raised by lawyers !
Possible security issues have been tackled and solved while preparing and implementing the Italian Electronic Filing System in Civil Cases, as above described.
Under the technical viewpoint a very complex architecture has been implemented, in order to assure a maximum of security.
Security components are placed in many different locations: local and central; internal and external to the justice system.
These components consist in:
1. External Users Interface (EUI), the dashboard and a web service through which layers and experts can interact with the system from the outside;
2. Access Point (PdA) that allows the connection between EUI (outside) and the rest of the system (inside);
3. Central Gateway (CG) that manages the connections among the access point for EUI, the civil justice domain, the court domain via RUPA (electronic network for Public Administration) public network and RUG (electronic network for Justice Administration) justice network;
4. Local Gateways (LG) that manages the connections among the CG via RUG justice network, the court domain (Court Management Systems and documents repository) and the Internal Users Interface;
5. Internal Users Interface (IUI) to be used by court staff, judges and lawyers to perform their functions from inside the court. It is based on Court interface for clerks, Judge Console a dashboard for judges, and the internal station of web service for lawyers (see Figure below).
6. Each operator (lawyer, staff, judge) needs a personal smart card with a personal identification number and password, in order to enter the system and receive or provide data.