1) In your country, what is the average duration
of a civil suit between the introduction and final judgement ?
a) in the first instance;
b) in the case of exercise of rights to appeal (recourse);
The average duration of a civil suit in Italy between the introduction and final judgement is at present of 610 days before the "Preture" (Small Claims Courts, composed by single judges), of 1,308 days before the "Tribunali" (Common Tribunals, where decisions are normally taken by three judges) and of 1,074 days before the Courts of Appeals .
c) does your system favour or not the exercise
of rights to appeal (recourse)?
The Italian procedural system favours in an extreme way the exercise of rights to appeal and recourse. With respect to the civil procedural law it must be pointed out that any decision issued by a first instance judge can be appealed before a higher court, apart from the decisions of the "giudici conciliatori" (honorary judges for the very small claims) , against which only the recourse to the Supreme Court of Cassation is allowed (see Article 339 of the Italian Code of Civil Procedure). In addition to that, the recourse to the Supreme Court of Cassation is permitted in a countless number of situations which allow the parties to attack the decisions issued by an appellate judge, on such grounds as violations concerning jurisdiction or competence, nullity of the decision or of the proceedings, wrongful interpretation or application of the law (see Article 360 of the Code of Civil Procedure). It may even happen that the Supreme Court of Cassation controls the merits of the decision (by checking the completeness of its statement of reasons: see Article 360, n. 5, of the Code of Civil Procedure).
Moreover, the very rare provisions of the Italian Code of Civil Procedure aiming at discouraging frivolous or groundless recourses (namely those provisions in which the appealing party had to deposit a sum of money in the Court which ought to be lost in case of rejection of the recourse) have been abrogated by Act 793, 18 October 1977.
2) In your country is the duration of civil suits
considered as excessive ? If affirmative, what do you think to be the principal
causes (summarised indications) ?
In which measure does this situation affect the relations on the one hand between the judiciary system and those subject to trial and on the other hand the relations between the judiciary power and the other powers of the state ?
The duration of civil suits in Italy has undoubtedly been considered for many years in Italy as excessive, to such an extent that nobody hesitates any longer to speak of a true crisis of civil justice. The main reason for that must be found, in my opinion, in the fact that law schools, all over the country, are no longer able to train and select the impressively increasing throngs of students. As a consequence, the huge hordes of lawyers currently on the market (it was calculated, already many years ago, that the number of attorneys working in the town of Naples was greater than that of the whole of Great Britain!), due to their very low professional skills and to an almost desperate need to get a sufficient quantity of clients, are in no way able to filter the demand of justice coming from the people, to distinguish between sound and groundless suits, to settle down the case before going to the Court, and so on.
Complexity of proceedings and easiness of appeals and recourses are nowadays seen by an increasing number of attorneys as nothing more than a source of revenues. On the other hand, the judges' overcharged backlogs - but also the laziness of many colleagues - remarkably contribute to aggravating the above mentioned problems.
3) In your judicial system does there exist restrictive
rules which oblige the parties or the judge to finish a trial within a
determined or defined delay ?
If affirmative, what are the sanctions in case of non observation ?
In the Italian Code of Civil Procedure there is no rule which obliges the parties or the judge to finish a trial within a determined or defined delay. Anyway we should mention Article 6, par. 1, of the European Convention for the Protection of Human Rights and Fundamental Liberties, which has been ratified by Italy in 1955. This provision declares that any person has the right that his/her proceedings be conducted impartially, publicly and within a reasonable delay by an independent and impartial court. As an example we could mention the fact that Italy, between 19 February 1991 and 27 February 1992 has been condemned 24 times by the European Court of Human Rights for violating the above mentioned rule.
4) a) In your judicial system, who is responsible
for the direction of civil suits ?
b) Which are the procedural means that your system places at the provision of the parties or the judge either to accelerate the proceedings or to avoid abuse ?
Examine in particular, the powers of the judge as to:
* The possibility to fix delays for completion of such and such an act of procedure and the sanctions in case of non observation.
* The appreciation of the opportunity of investigative measures and the supervision of their fulfilment (e.g. in case of evaluations or reports by experts).
* allocation of damages or sentencing to costs in case of abuse.
Is it possible to modify the object of the claim during the proceedings or to introduce counterclaims ?
The Italian civil suit is based on the rule according to which participants in a lawsuit bring and conduct their claims under the observance of the burdens provided for by the law (see Article 99 of the Code of Civil Procedure). The role of the judge is rather that of an arbiter, who monitors the respect of the rules.
The Italian Code of Civil Procedure provides for many possibilities to fix delays for completion of such and such an act of procedure (see, for example, Article 50, concerning the decision in which a court affirms its own incompetence over a case: the party has to apply to the judge who has been indicated in that decision as competent within the delay fixed by the first judge; Article 203, which permits the judge, in certain situations, to charge another judge of performing some acts of the procedure - e.g. hearing witnesses - fixing a delay for the completion of such acts; Article 269, concerning the possibility for the litigants to cause a summons against a third party, and so on). The problem is that the backlog of judges is at this point so heavy (1,500 - 2,000 files per judge) that delays cannot be any longer contained within acceptable limits. Actually it happens very often that several months pass between the hearing of two witnesses, or for the completion of a report by legal experts.
As for the allocation of damages or sentencing to costs in case of abuse, the Italian Code of Civil Procedure permits the judge, in the definitive decision, not only to sentencing the loser to costs, but also to allocate damages against the party who has brought a groundless suit in a situation of abuse of process or (even of) gross negligence. The problem is that very often the litigant who won the case cannot prove the amount of his/her damages.
As for the last part of the question, Article 184 of the Italian Code of Civil Procedure permits the parties to modify their claims, defenses, exceptions and conclusions pending the suit. Article 167 of the same code, on the contrary, allows the defendant to introduce counterclaims only in the first act containing his/her defenses.
It must be added that, on this subject, Act 353, 26 November 1990 (urgent measures concerning civil procedure) has brought about some very important innovations, which will come into force on 3 July 1994: under the new Article 184 the parties will be allowed to modify their defenses and their claims only in a very marginal way and within strict delays fixed by the judge.
5) Does your judicial system have special and
accelerated proceedings in civil matters (e.g. special courts of law, simplified
procedures, judicial or non judicial arbitration) ?
Are they of a nature to contribute to overcome judicial backlog ?
In the Italian system there are many special and accelerated proceedings. The most important of them, with regard to the number of cases decided, is the injunction to pay a certain sum of money ("decreto ingiuntivo"): Articles 633 ff. of the Italian Code of Civil Procedure allow the person who can prove in writing to be creditor of a certain amount of money to apply directly to the judge ("conciliatore", "pretore", Head of the Tribunal, according to the amount of the sum), who will issue an injunction against the debtor. The latter can raise objections, by summoning the creditor within a delay of 20 days starting from the moment in which he/she received the notification of the injunction. This is the only measure that actually contributes to preventing the judicial backlog from becoming even heavier than it is today.
We could also add a few words about temporary and urgent decisions. All first instance judges can issue provisional ("anticipatorie") measures within the frame of ordinary procedures introduced after 2 January 1993: these measures take the form of an order to deliver or to effect payment.
Urgent decisions, which already existed before Act 353, 26 November 1990, permit the judge, even before the beginning of the proceedings, to issue as quick as possible any kind of order which can avoid a party to undergo the negative effects of the delays of the ordinary proceedings. For example, the judge can order a party to behave (or not to behave) in a certain way, or he/she can issue a provisional writ of sequestration against the properties (or a part of the properties) of the debtor, until the final decision has been issued.
6) Which are the measures the concerned authorities
i.e. the political authorities and the courts, have taken or intend to
take in order to effect an acceleration of proceedings? Are they satisfactory
The Italian Parliament has intervened recently many times in order to introduce measures aiming at reaching an acceleration of the proceedings. This goal has been pursued in three ways: first of all by reforming procedures before the ordinary jurisdictions, then by introducing a new kind of jurisdiction (the Justice of the Peace) and finally by providing for extra-judiciary proceedings. Among these reforms, the most important are unfortunately not yet come into force (especially due to an obstinate resistance from the bar, which counts on the length of the procedures as a remarkable source of revenues).
A) Court procedures.
The Code of Civil Procedure, as it has just been said, has been recently modified on the basis of Acts 353, 26 November 1990 (urgent measures concerning civil procedure) and 374, 21 November 1991 (establishing the justice of the peace). The coming into force of some of the above mentioned provisions was carried out by Act 477, 4 December 1992; consequently, the reform will be fully effective starting from 3 July 1994. The most important effects of this reform, under the point of view of the acceleration of proceedings, can be summed up as follows.
A1) Establishment of the justice of the peace.
The procedure before the justice of the peace is governed by special provisions (Article 316 ff. of the Code of Civil Procedure), which partly draw their inspiration from the provisions governing the procedure before the "giudici conciliatori" (who are going to be replaced by the justice of the peace).
The procedure is a simplified one in that:
an action may be brought in the form of a simple declaration before the judge, who will keep a record and summon the parties (time limits for attendance have been halved, as compared with the norm);
- at the hearing, the justice of the peace listens to the parties and tries to achieve conciliation; if the parties come to an agreement, this is entered in the record, which is enforceable;
- if conciliation fails, the justice of the peace invites the parties to set out the facts, produce documents and, where relevant, proof;
- a second hearing may be scheduled only if circumstances so require; the judgement must be handed down within 15 days of the hearing.
The request for "non litigious" conciliation, already provided for in the provisions concerning the "giudici conciliatori", may also be submitted to the justice of the peace, irrespective of the amount of demanded compensation; however, the record which establishes the parties' agreement shall be enforceable only if the dispute falls within the jurisdiction of the justice of the peace.
The jurisdiction "ratione summae" of the justice of the peace is fixed at Lit 5 million (about US$ 3,125), or Lit 30 million (about US$ 18,750) in the case of disputes concerning civil liability in connection with motor vehicles and ships; hence, most consumer claims are covered. The possibility of being a "pro se litigant" (normally excluded before ordinary courts) is limited to claims whose value does not exceed Lit 1 million (about US$ 625) and the judgement "in equity" to claims up to Lit 2 million (about US$ 1,250).
A2) Time limits and single magistrates in ordinary proceedings.
The new rule on time limits (and particularly the amendment to Article 184 of the Code of Civil Procedure: see under N° 4) should reduce the average duration of court proceedings. The same effect should be produced by the introduction of the "single magistrates principle" in the "Tribunali": currently all final decisions in these courts are taken by a panel composed of three judges; starting from 3 July 1994 most of the cases should be decided by single judges. These new rules have not yet come into force, due to the attorneys' strong opposition.
A3) Provisional enforcement of first instance decisions.
Provisional enforcement of a first instance judgement (which till now was the exception) became the rule for actions brought after 1 January 1993; suspension of the provisional judgement can only be ordered by the court of appeal on real and serious grounds (Article 283 of the Code of Civil Procedure). The purpose of this amendment to the Code of Civil Procedure is to discourage appeals made with the sole purpose of prolonging the procedure ("dilatory" appeals).
B) Out-of court procedures.
Arbitration tends to be expensive and so as a rule is beyond the reach of private individuals: it is normally used by firms. Thanks to arbitration a binding decision can be obtained far more rapidly than by going through the regular courts. In some particular cases special arbitration procedures have been set up.
B1) The first example is that of litigations involving the telecommunications service. This proceedings - which is based on an agreement concluded on 24 July 1989 between the SIP (the telecommunications authority) and 12 consumer organisations - is composed of two distinct phases: first of all, the user must exhaust the SIP's own claims procedure; afterwards he/she may approach the regional conciliation committee, made up of one SIP nominee and one nominee of the consumer organisations. The conciliation procedure ends with a statement of conciliation or non conciliation. In the case of non conciliation the consumer may appeal to an arbiter (chosen by agreement between the SIP and the signatory associations) whose competence is limited to claims not exceeding Lit 3 million. The arbiter decides "on the basis of equity" and the costs are borne by the losing party.
B2) In the banking sector an "Agreement on the creation of a claims bureau and bank ombudsman" was recently concluded under the aegis of the ABI (Italian Banking Association). Under this agreement, a claims office had to be established in each bank or credit institution by 15 April 1993 at the latest. From this date, a national bank ombudsman (a five member body) may be approached by any consumer who has exhausted the internal claims procedure (for which a time limit of 60 days has been established). The ombudsman's services are free of charge and the ombudsman's decision is binding upon the bank (without affecting the consumer's right to bring legal action) within the limiti laid down by the agreement (Lit 5 million).
B3) As regards publicity, a "Giurì di autodisciplina pubblicitaria" (self regulatory advertisement standards board) was set up in 1966, and has handed down till now more than 1,000 decisions; the self-regulatory advertising code applied by this board is regularly updated. The nineteenth version came into force on 15 June 1993.
B4) As for relationships between citizens and government, a "Difensore civico" (ombudsman) exists in each of Italy's 20 regions and provides information, counselling and assistance to all citizens (or organisations of citizens) on request. The powers of the "Difensore civico" are governed by regional acts, but nominally their opinion is not (legally) binding upon the administration.
Dr. Giacomo Oberto
Trial Court Magistrate
Member of the Scientific Committee
of the Professional Training Institute for the Judiciary