L’ANF ha incontrato la rappresentanza della Commissione europea nel contesto del semestre europeo per l’analisi delle riforme della giustizia in Italia

Oggi, 24 ottobre 2016, il segretario generale dell’Associazione Nazionale Forense Luigi Pansini, ha avuto  a Roma un incontro con il co-coordinatore del monitoraggio delle riforme della giustizia della Commissione Europea Aristotelis Gavriliadis. Ogni anno, l’Unione Europea conduce infatti un’analisi dettagliata dei programmi di riforme strutturali e presenta, se necessario, delle raccomandazioni per i successivi 12-18 mesi.

Gli incontri nel contesto del Semestre Europeo sono per lo più organizzati con i vari rappresentanti del governo e del sistema giudiziario. DG JUST ha voluto incontrare l’Associazione Nazionale Forense per poter discutere il punto di vista degli avvocati sulle recenti riforme della giustizia e per un confronto a tutto campo sugli aspetti più importanti.

Di seguito il testo delle considerazioni esposte dal segretario Pansini, visualizzabili al link seguente in formato pdf 2016-10-24-documento-anf-commissione-europea-riforme-giustizia-in-italia-1

Roma, 24 October 2016

European Commission

Directorate General Justice
Unit C1 Justice Policy and Rule of Law
1049 Brussels, Belgium

THE REFORMS AND THE CENSUS OF THE ITALIAN CIVIL JUSTICE SYSTEM: THE CASE OF A MISLEADING SLOGAN

 

ABSTRACT

“(UN)civil justice in Italy: backlog of 5.2 million cases” was a misleading slogan.

Ministry of Justice census shows that there is a great difference between pending proceedings and backlog; the over-three years’ length proceedings backlog is the only true emergency in Italy. Judges should understand that today they need to work with methods other than those of the past and focus more on older cases and each court needs the leadership of its president.

The most difficult thing to accomplish and to explain to politicians and legislators is that any reform of the civil procedure must take account of digitalisation and that the civil or criminal procedure laws are often adopted without the now irreversible mindset of digitalisation.

We should acknowledge that, in the light of the statistical data, the reform of civil justice requires a comprehensive view of the entire system: changes to the law are enough without a contemporary and better organization of judges work, the honorary judiciary reform is not good if it is not equipped with the digitalisation, new civil procedures every three months lead to confusion and don’t allow us to monitor the quality of previous changes to the law, the lowest number of incoming cases of recent years depends not only on the existence of ADR system but also on the increase in the cost for access to justice.

The European Community should consider the complexity and the real functioning (and numbers) of the Italian civil justice, as described also in Ministry of Justice reports.

 

  1. Introduction

 “The unreasonable length of Italian civil proceedings goes on filling pages of newspapers and magazines” and we are used to reading that many years ago almost six million cases were pending as of the end of 2009, that on 31 December 2014 the number was about five million and at the present day the pending proceedings are less than four million.

Newspaper articles and press releases contain instant messages that hardly explain work and the reasons behind numbers; they must necessarily cast a positive suggestion about Italy to the financial markets and to international investors and make our country safe and attractive for them.

A difficult topic to be discussed because there were few data available to legal professionals but from 2013 to date, the Ministry of Justice, for the first time, conducted a statistical survey on the state of civil justice in Italy and today we can say that the repeated changes to the law on the civil procedures are not sufficient to improve the performance of the civil justice in Italy.

 

  1. The numbers of Italian civil justice

 

  1. The reports by Ministry of Justice

Before the Ministry of Justice reports, the state of civil justice in Italy was described with a slogan: “(un)civil justice: backlog of 5.2 million cases“.

This is a serious and alarming statement but – after the statistical survey on pending case numbers – the head of Ministry of Justice Judicial Organization Department draws the conclusions of his analysis: “it can be said that the slogan”(un)civil justice: backlog of 5.2 million cases” is now old because it’s misleading”.

The first report of the Ministry of Justice Judicial Organization Department (and the statistical survey organized by the General Directorate of Statistics, so-called DGStat) is dated October 2014 and refers to figures as at 31 December 2013.

This is followed by:

  • subsequent reports of 11 August 2015 (with data as of 30 June 2014), of 30 September 2015 (with data as of 31 December 2014), of April 2016 (with data as at 31 December 2015),
  • the “Observatory for monitoring the effects on the economy of justice reforms” study on the performance of the Italian civil courts (26th march 2015),
  • the monitoring of July, 21, and August, 17, 2016, on the first two semesters of 2016.

All the reports make up the overall and detailed census, in numerical terms, of the pending litigious civil proceedings in Italy without any assessment of the effects of the civil procedures reforms on their increase or decrease over the same periods.

Report by report it’s an ever better reclassification, even in numerical terms, of the pending litigious civil proceedings and the real state of health of civil justice in Italy.

It’s not possible here to comment in detail on every single subject of the ministry

reports but we can dwell on a few aspects that can provide the European Commission with an overview of the state of civil justice in Italy which is more thorough than that which emerges from European CEPEJ reports.

As of 30 June 2014, the pending litigious civil proceedings before courts (tribunali: 3,086,272 – 343,132 pending proceedings), courts of appeal (corti di appello: 372,421 p.p.), Italian supreme court (Corte di Cassazione: 99,579 p.p.), juvenile courts (tribunali per i minorenni: 91,901 p.p.) and justices of the peace (giudici di pace: 1,248,572 p.p.), are 4,555,613.

The conclusion concerning the value of 4,555,613 pending litigious proceedings responds not only to reasons of transparency, truth and loyalty in corporate communication, but also to reasons of expediency in the work organization policy” (report of august 2015, p. 15).

The pending litigious cases census deserves, however, some remarks:

  • 5 million pending cases include only the litigious ones in which the court decides disputes between litigants;
  • 5 million pending cases, therefore, don’t include those (343,132) that cannot be defined by the tutelary judge because they depend on the longevity of the protected persons (protection, guardianship and governments support);
  • 5 million pending cases now takes into account the “voluntary jurisdiction” (“volontaria giurisdizione”) affairs (notified globally to the CEPEJ as non-litigious cases) but we know that Italian voluntary jurisdiction affairs include both non-litigious cases, in which the judge decides a dispute between litigants, and those in which the court plays a role as guarantor of legality without any decision;
  • the exclusion of voluntary jurisdiction non-litigation cases, as occurred for tutelary judge cases, would definitely further lower the overall number of pending litigious cases below 4.5 million;
  • the total number of pending litigious cases also includes the “identical litigation” ones (for example, when a person sues social security for back payment for interest);
  • the meaning of certain terms used in the reports to explain the numbers of civil justice in Italy should be explained:

“backlog” is the number of cases with a length of more than three years in courts, more than two years in courts of appeal and over a year in supreme court (Corte di Cassazione), which trigger the right to compensation for lengthy proceedings as provided for in Legge Pinto;

“giacenza” is mere physiology of cases management, due to ordinary treatment times of each type of case: three years in courts, two years in courts of appeal and one year in supreme court (as provided for in art. 2, paragraph 2bis, Law 2001, March 24, n. 89, Legge Pinto).

The backlog condemns the state to pay compensation to for each year beyond the normal physiological pending period (“giacenza”) of case (Law 2001, March 24, n. 89: Legge Pinto);

  • the greatest difficulties in managing the physiological pending period (“giacenza”) are in the appeal court and the supreme court, while first instance courts and justices of peace manage to keep up.

 

  1. The backlog is the only true emergency

With the organizational project called “Over-three years’ civil backlog. Strasbourg 2 program”, shown to the press during 2015, the Ministry of Justice wants to hit the real areas of crisis of the civil justice system, that is the real backlog, and not generically the pending proceedings.

In the report of September 2015, therefore, the over three years’ backlog (cause ultra-triennali), except for cases pending before the Supreme Court and justices of the peace, was well quantified: 1,048,619 over three years’ cases were pending for the year 2013, while in 2014 the number increased to 1,117,769.

This is alarming because it shows the negative trend of the justice-system crisis in terms of the reasonable length of civil proceedings (legge Pinto) that, we mustn’t forget, has constitutional and European importance and a strong impact on the economy of the country and on the budget of the Ministry of Justice” (Ministry of Justice report of 30 September 2015, p. 9).

In August 2016, the Minister of Justice presented the statistics on civil justice updated as of June 30, 2016.

The pending proceedings on June 30, 2016, before all the courts (first instance courts, courts of appeal, supreme court, juvenile courts and justices of peace) and on all subjects covered, are 3,886,285 and among them the over three-years backlog of cases before the courts is a total of 679,975.

On the sidelines of purely statistical data we must also consider that the lowest number of incoming cases of recent years depends on the existence of ADR system and on the increase in the cost for access to justice.

However, to impress the press, citizens, the European community and foreign investors, the communication experts prefer to simply state that the “backlog” fell from nearly 6 million in 2009 to nearly 4 million in 2016 without explaining how the Italian civil justice system works.

 

  1. The Italian civil justice system: myths to dispel

 The thesis about Italian excessive litigation is baseless.

The average litigation rate processed (data 2012) by the CEPEJ in Italy (2,613 cases per 100,000 population) is almost equal to France (2,575). According to the CEPEJ, however, the average time of Italian civil case resolution is higher than in other European countries.

In addition, the number of French lawyers is lower than that of the Italians but the rate of French litigation is almost the same as Italian, we could infer that the litigation rate does not depend on the number of lawyers.

There is no correlation between the litigation rate and the quality of court performance. The worst performances of courts are also found in areas of low litigation index and better performances are also found in areas with high litigation index.

The human resources in courts were not under investigation in the Ministry of Justice reports. However, the reports show a high level of uncovered positions and at the same time analysis in a year seems to show that there is no connection between uncovered positions of staffing and low performance and vice versa. The investigation of the issue should be conducted over a longer period.

The geographical location of courts is not synonymous with their best or worst performance (for example, the Termini Imerese and Marsala courts being among those with the best performance demonstrate the irrelevance of geographical location).

We can also say that, since there are courts of excellence, it’s clearly not (only) a question of civil procedures.

 

  1. A new “work organization” for judges

 

The Italian ministry reports acknowledge that the biennial report of the CEPEJ since 2004 has become the most authoritative “international certification” for trend  measurement and the comparison of-justice systems in 46 (of the 47) member states of the Council of Europe and the recent CEPEJ-2014 relating to the 2012 data report confirm the good trend in productivity of the Italian courts (in 2nd place in Europe for productivity in absolute numbers), although there has been a decline in contingencies compared to the 2012 report.

However, Italian legal professionals wonder why the Italian judges, despite being in second place in Europe in terms of productivity, don’t manage to dispose of the oldest cases, which makes our system remain at the top of an unenviable negative ranking.

The debt of old cases remains, is heavy, has been consolidated and is worsening.

In other words, the ministerial reports highlight the need for judges to organize their work better; judges should understand that today they need to work with methods other than those of the past and focus more on older cases (more than three years of seniority) and less on the more recent ones and favoring the definition of the litigious cases compared to the non-litigious ones.

The group of experts of “Observatory for monitoring the effects on the economy of justice reforms” indicated (report of March 2015, 26th) possible organizational principles for the improvement of court performance: the leadership, first, belongs to the president of the court.

Then, the civil justice system needs greater accountability of individual judges, incentives for them, priority for older cases, setting goals for individual judges and courts and periodic monitoring of the work.

The judges work organization represents a new element in the discussion about the state of civil justice in Italy; it’s based on truthful statistical data and from all courts of Italy and especially shows that the courts performances don’t depend only on the procedures for a faster trial, on the financial and human resources, on the number of pending proceedings.

It is very important that the Minister of Justice, Andrea Orlando, has been working with the High Council of the Judiciary (CSM, Consiglio Superiore della Magistratura), but above all it is important that the matter be placed directly and publicly before the attention of the judges.

The path to a better work organization will be long because, on every topic that concerns them, judges are inclined to think that their independence might be in danger.

 

  1. The reform of Legge Pinto

 

The last years’ reform (“legge di stabilità” n. 208 of 28 December, 2015) of the “Legge Pinto” (Law n. 89 of 24 March, 2001) introduced a new procedure for obtaining the payment of a compensation for lengthy proceedings.

The reform, with the new “rimedi preventivi”, leaves many doubts about its effectiveness.

First, it denotes an inability to fight the civil proceedings backlog especially, as mentioned earlier, in the courts of appeal and in supreme court; therefore, parliament has decided to reduce the amount of compensation for each year and to make access to the right to compensation hardest without giving any priority to oldest cases.

In detail, the new changes to the law violate the right of defense of litigants because (in civil cases) they affect the procedural choices of lawyers and (in criminal cases) provide that citizen must demonstrate that he suffered a damage by the length of the proceedings, that compensation can be reduced and paid within the available resources for each year.

The reform must overcome the compatibility screen with the European Convection on Human Rights (art. 6) and the Italian Constitutional Court.

In the first case, the European Court of Human Rights has already ruled, in its judgment of 25.02.2016, the “rimedi preventivi”, the “istanza di prelievo” and the compensation of Legge Pinto in Italian administrative proceedings.

In the second case, the administrative judges of Liguria, with a measure of 17 October 2016, have brought to the Constitutional Court the question of the mode of payment of compensation.

 

  1. The digitalisation in civil justice

 The digitalisation in civil justice is an excellent achievement.

The role of lawyers, even in economic terms, has been critical despite some resistance from within and by part of the judiciary.

Now, digitalisation must be encouraged even in the criminal and in the administrative justice.

We can’t say yet that digitalisation might affect the length of the proceedings and on the backlog because the trial has times that have little to do with it, but:

  • digitalisation process in civil justice must be completed by providing that all proceedings must be initiated by appeal (“ricorso”) e not by arraignment (“atto di citazione”);
  • digitalisation should be simplified by eliminating all unnecessary steps in transmission between lawyers, court clerks and judges and vice versa and facilitating communication between different courts;
  • court clerks and judges must be equipped with new computers, new printers and new software to work with digitalisation;
  • it is necessary to strengthen and speed up the system of emergency assistance in the courts for the failure or malfunction of the panel of judges and court clerks;
  • training and updating for court clerks, judges and lawyers must be compulsory e continuous;
  • digitalisation rules must be applied uniformly throughout the country and not so differently from court to court.

The most difficult thing to accomplish and to explain to politicians and legislators is that any reform process must take account of digitalisation and that the civil or criminal procedure laws are often adopted without the now irreversible mindset of digitalisation.

For example, the reform of honorary judiciary (D.lgs. 92/2016) threatens to nullify most of the results obtained with digitalisation.

Now, justices of peace and honorary judges work without digitalization because it was never extended to proceedings before the justices of the peace.

With the 2016 reform of the honorary judiciary, civil and criminal skills have increased substantially but paradoxically there is a risk that some of them, treated until yesterday with the digitalisation, will be handled by honorary judges and clerks who don’t use it.

Very often there is no overall view of the system and very often parliament does not know what the government does and the government does not know what parliament does.

 

  1. The alternative dispute resolutions (ADR) and the Italian “dejudicialisation”

 The alternative dispute resolutions (ADR) are definitely a good circuit that can support the civil justice system in Italy but also need the time to take root in our legal culture and especially in the minds of citizens who still see in court the only referee that can define a legal dispute.

Andrea Orlando, the Italian Minister of Justice, in New York in June 2015, introduced his action for civil backlog through “dejudicialisation” (i.e. out-of-court dispute settlement).

Today, we witness the proliferation of alternative dispute resolution systems: the civil mediation (“mediazione civile”), negotiation assisted by legal counsel (“negoziazione assistita”), arbitration chambers, referral to arbitration also for pending cases.

First results are not encouraging, despite fiscal incentives, but after nearly five years we can say that, although there are patterns that overlap each other, there are matters in respect of which ADRs work well (family law) while for others ADR schemes do not work as hoped (competition, health care responsibilities, banking disputes) and it is therefore necessary to reconsider, firstly, the category of mediation compulsory subjects.

From a different standpoint, a survey conducted by ISTAT, the Italian National Statistics Institute, and referring to 2015, shows that only a minority of respondents is aware of the existence of forms of protection different from a trial in court.

The time necessary for the understanding and the metabolising new models different from trial in courts is hampered by continuous changes to the law in the ADR field which, as well as with the rules of civil trial, do not help the idea of the possible resolution of the dispute outside the court but even diminish its potential.

Moreover, in draft legislation under discussion in parliament ADRs are regulated, even terminologically (as already seen in the Minister of Justice report of June 2015), only to face the civil backlog and not to introduce and assert a valid alternative cultural model to the trial.

We need to understand if “compulsory” ADR is the most appropriate strategy to promote the idea of an alternative model to jurisdiction and to trial before courts because today ADRs are “para-procedural” instruments to face the backlog and the lengthy proceedings, while the idea and the culture of ADR system have far more wide-ranging goals.

A new mindset needs to find space between all legal professionals and, at the same time, it should be noted that the most important aspect, however, is as follows: the Italian dejudicialisation (our ADR system) can work well only if the civil trial works well.

If trial before a court is well planned in rules, judges, lawyers, work organization, digitalisation, other professionals, ADR systems and dejudicialisation may contribute to the state improvement of civil justice in Italy.

Recently, the Ministry of Justice set up a commission with the aim to propose a reform of the ADR system and by a decree of 30 September 2016 extended to 15 January 2017 the deadline to present a case of revision.

We currently don’t know the work of the Commission, despite requests by our association to be heard, but we think that the discussion is concerning changes to compulsory mediation by virtue of the accrued case law, to the mediation entrusted by the court, changes to of the consumer Code and to conciliation in the field of public services, as well as reform proposals about corporate and voluntary arbitration jurisdiction.

 

  • The reform of honorary judiciary (Law n. 57 of 28 April 2016) and the “ufficio del processo” (Decree law n. 90 of June 24, 2014)

 

Law n. 57 of 28 April 2016 contains the delegation to the Government for the comprehensive reform of the judiciary honorary; the reform must be implemented with one or more legislative decrees (d. lgs.).

The first is the implementation decree n. 92 of 31 May 2016; it was adopted to avoid yet another bill to extend the activity of the honorary judges in service, but, about the most important issues, the reform has yet to be carried out.

The role of the honorary judiciary is certainly important because it defines almost half of all pending civil proceedings at first instance without exposing the state to the payment of the compensation for lengthy proceedings, but the first impression is that the reform of 2016 does not want to re-think the sort of honorary judges but rather to build the “Ufficio del processo” (Office for trials), introduced by Decree law n. 90 of June 24, 2014 and the subsequent Law n. 114 of August 11, 2014.

The “Ufficio del Processo” is a new organizational structure only in courts and in courts of appeal composed of: court clerks, honorary judges, interns at the courts, interns at the clerk’s office.

Career judges are involved, because they need it, in structuring and organizing the “Ufficio del processo”, to have staff that provides the study of cases of jurisprudential research activities, and the preparation of drafts of the measures.

The “Ufficio” is not yet structured and does not work, there being insufficient participation in it of the administrative staff (especially the court clerks) and trainees.

To achieve a similar result, it was necessary to reform the honorary judiciary.

The new honorary judges will continue to have judicial duties, but in the future, this will be a sideline for them; the main activity will be instead to help career judges, becoming their assistants.

Moreover, the reform, as it must be done at no cost for the public finances and for the Ministry of Justice, does not grant at honorary judges a decent salary and any social security or pension benefits.

Law n. 57 of 2016 seems prima facie quite insufficient to efficiently and effectively reform the complex world of the honorary judiciary and the expected results, at least in the short period, will be probably zero.

Also, when the reform produces its first effects the impact on the justice system is likely could be devastating because the workload, which is currently pending before the career judges, will move to honorary judges who probably will not have adequate structures and staffing, proportionate stationery and mail or stable computer or electronic equipment to support the increased work arising from the onerous responsibilities of the civil and criminal cases finally assigned to them.

Now, as mentioned earlier, justices of peace and honorary judges work without digitalisation because it was never extended to proceedings before the justices of the peace.

With the 2016 reform of the honorary judiciary, civil and criminal skills have increased substantially but paradoxically there is a risk that some of them, treated until yesterday with the digitalisation, will be handled by honorary judges and clerks who don’t use it.

It’s difficult to give a complete and thorough assessment of the reform now, but a professor of civil procedure said: “the laws on justice cannot be entrusted to the judges and must be written and designed in the interest of citizens. Make reforms in justice in the interest of the judges it is how to do health care reform for doctors instead of for the sick or the school reform for teachers rather than students”.

 

  1. CONCLUDING REMARKS

In the end and in the light of the statistical data, we should acknowledge that the reform of civil justice requires a comprehensive view of the entire system: changes to the law are enough without a contemporary and better organization of judges work, the honorary judiciary reform is not good if it is not equipped with the digital trial, new civil procedures every three months lead to confusion and don’t allow us to monitor the quality of previous changes to the law, the lowest number of incoming cases of recent years is depending not only on the existence of ADR system but also on the increase in the cost for access to justice.

Numbers didn’t lie: the continuous changes to the law are not the only way to reform the Italian civil justice system.

With the available statistical data and after the reform of the Italian judicial map, a new policy of work organization is needed: for courts, for judges, for clerks, for lawyers, for all legal professionals, also taking advantage of the recent calls for hiring new clerks and new career judges.

The European Community should consider the complexity and the real functioning (and numbers) of the Italian civil justice, as described also in Ministry of Justice reports.

   Avv. Luigi Pansini

(Segretario Generale ANF – Associazione Nazionale Forense)