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
Nur-Sultan (Astana) International
Justice Forum
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
1. The ‘Strasbourg
Programmeʼ of Turin’s Court: An Inspirational Forerunner.
1.1. The Programme in the 2001 Version.
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].
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 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.
2. The Italian Program for the Management of Civil
Proceedings ex Article 37 D.L.
98/2011.
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.
2.2. The Content of
the 2011 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). 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.
2.3. Conventions
Concluded Between the Courts and Universities. Judges’ Assistants.
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!
3. The Waking Up of
Awareness on Case Management in Europe.
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,
https://www.lut.fi/web/en/school-of-engineering-science/research/projects/handle-with-care.
·
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 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
5. Selection and Training of Lawyers.
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!
6. Simplification
of Procedures before the Courts.
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.
7. Judicial
Discretion: Powers of the Judge in Civil Cases.
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.
8. Gathering
Evidence in a Quicker Way.
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.
9. Written
Reasoning of Judgements.
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).
10. Suppression of
Procedural Abuses.
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:
“Principle 2
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.
11. Summary of
Recommendations.
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
12. The Use of
Information Technology in Civil Litigation Matters in Italy.
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.
13. Main Features
of the Italian Electronic Filing System in Civil Cases.
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.
14. Pros and Cons
of the Italian Electronic Filing System in Civil Cases.
Pros and cons of
the Italian Electronic Filing System in Civil Cases can be summarized as
follows.
Pros:
·
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).
Cons:
·
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:
·
https://pst.giustizia.it/PST/resources/cms/documents/eJustice_in_Italy_rev_May_2016.pdf;
·
http://www.irsig.cnr.it/BIEPCO/documents/case_studies/TOL%20System_Report_Italy_28mag12%20.pdf.
15. Effectiveness
and Effects of E-Filing in Civil Litigation Matters in Italy.
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!
16. Rules and
Guidelines for the Use of Information Technology in Civil Litigation Matters in
Italy.
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:
·
http://www.processociviletelematico.it/normativa.html,
·
http://www.studiocataldi.it/guide_legali/procedura-civile/il-processo-civile-telematico.asp,
·
https://it.wikipedia.org/wiki/Processo_civile_telematico,
·
https://pst.giustizia.it/PST/it/homepage.wp?request_locale=it.
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.