STUDY
ON MEASURES ADOPTED
IN
TURIN’S COURT (“STRASBOURG PROGRAMME”)
ALONG THE LINES OF
“SATURN
GUIDELINES FOR JUDICIAL TIME MANAGEMENT”
[ITALIANO]
Table of Contents: 1.
A Short Description of the “Strasbourg Programme” and of the “Decalogue” for
Dealing with Civil Cases. – 2. Rules of the “Decalogue” in
comparison with “Saturn Guidelines for Judicial Time Management:” the Issue of
Active Case Management. – 3. Rules of the “Decalogue” in
comparison with “Saturn Guidelines for Judicial Time Management:” How to Adjust
Time Management to General and Specific Targets. – 4.
Rules of the “Decalogue” in comparison with Saturn Guidelines for Judicial Time
Management: the Issue of Timing Agreements with Parties and Lawyers. – 5. Rules of the “Decalogue” in comparison with Saturn
Guidelines for Judicial Time Management: the Issue of Co-operation and
Monitoring of Other Actors (Experts, Witnesses, etc.). – 6.
Rules of the “Decalogue” in comparison with Saturn Guidelines for Judicial Time
Management: the Issue of Suppression of Procedural Abuses. – 7. Reasoning of Court Decisions.
1. A Short
Description of the “Strasbourg Programme” and of the “Decalogue” for Dealing
with Civil Cases.
The “Strasbourg
Programme” is the first experiment of case management tested in Italy, aiming
at obtaining a significant reduction of judicial backlogs and the acceleration
of the treatment of civil cases. The initiative was born in the year 2001 from
an idea of the then President of the (First Instance) Court of Turin, Mr. Mario
Barbuto (currently President of the local Court of Appeals) and continued
during these last ten years first by Mr. Barbuto and since the end of 2009 by
the new President, Mr. Luciano Panzani.
The Programme was
started first of all through a monitoring activity of the whole backlog. Then
the President drafted a circular letter containing several provisions and
suggestions for Judges (the so-called “Decalogue”), with the aim of reaching
the goal of a relevant shortening of judicial timeframes.
Starting from the
assumption that proceedings lasting for longer than three years could be
considered as in violation of the “reasonable time” requirement of Article 6 of
the European Convention on Humans Rights, in the light of the case-law of the
European Court of Human Rights, the Presidency of the Court of Turin activated
since 2001 a periodical census–to be renewed every six months–of all cases
pending before said Court. Following this survey, all cases had to be
classified according to the period of time they had been lasting (cases pending
for longer than one year, for longer than two years, three years, and so on).
According to that
first census, ordinary cases lasting for longer than three years in all civil
sections of Turin central seat of the Court amounted to 2.354 at the date of
April 30, 2001 (52 of them went back to a period of time previous to 1990). At the
same time the President announced the diffusion of a “Decalogue” for the quick
and targeted treatment of old cases. Document files of cases lasting for longer
of three years were also marked with a special tag on their cover, in order to
allow Judges to easily recognize them.
Just to give an
idea about the success of the initiative I can quote the results of the last
edition (the 17th of this kind) of the report, drafted by the
President in the framework of the “Strasbourg Programme” in December 2010. According
to this last survey, out of 22.268 cases pending before the central seat of the
Turin First Instance Court, 21.418 cases were pending for no longer than three
years (15.325 for one year, 4.264 for two years, 1.829 for three years), while
only 850 for longer than three years.
The “Decalogue,” in
the form of circular letter containing several recommendations addressed to all
civil judges (for example the prohibition of adjourning hearings, when not
specifically justified or allowed by the law) will be described in a more
detailed way further on. Its aim is that of trying to ensure a uniform practice
in all civil sections of the Court, while strictly respecting autonomy and
independence of each and any Judge. This document was also forwarded to the local
Bar, on one hand, in order to obtain the endorsement of an institutional body
strongly concerned with the course of civil justice, but on the other hand also
with the aim to prevent that parties in concerned cases could interpret the new
course as a sort of vexation against them, or as an unexpected and episodical
initiative of only some Judges.
It is worth saying
that the “Decalogue”, although conceived some years before the adoption of
Saturn Guidelines for Judicial Time Management, addresses in many parts of it
issues which we can find in this document of CEPEJ (I am specially referring
here to its “Part V – Guidelines for Judges”). Moreover, the very “spirit” of
the “Decalogue,” along with many of the proposed solutions, seems to be in full
harmony with aims, purposes and approaches of the “Saturn Guidelines,” so that
we could even define it as a sort of “Saturn Guidelines” ante litteram.
As I have already
explained in a former report, as far as overall foreseeability of the length of
proceedings is concerned, the initiative of the President of regularly
spreading general statistical and other data on the length of proceedings,
section by section, can very much helpful in this respect. Also the spreading
of statistical evidence reporting the “productivity” rate of each and every
judge fosters a sort of competition which helps avoiding backlogs of the size
which had to be reported in the past.
It is true that,
according to what stated by Point B. 3. of “Saturn Guidelines,” “The time
management of judicial proceedings, if not determined by the behaviour of the
users themselves, should be made in an impartial and objective manner, avoiding
significant differences with regard to timing of similar cases.” Problem is
that, at least in Italy, a significant role in the case management is played by
the lawyers. Therefore it is important to involve Bars in the process of
reduction of judicial delays.
Actually it may
happen that very similar cases have very different lengths, simply because the
lawyers tried to make use in some cases of procedural tactics and “tricks”
which may result in a waste of time. Of course it is also up to the judge to be
vigilant and to discourage such practices. For instance, it may happen that
adjournments are required by lawyers, who assure they are going to settle the
case, and they need time to do it. Here it is up to the judge not to be too
“generous” and to monitor closely the seriousness of this prospective
settlement, as well as the honesty and truthfulness of the intentions of the
lawyers and of the parties who are involved in the case.
Having said this, I
will submit here some comparative tables, reporting in the left side of them
the relevant provisions of the Turin Court “Decalogue” (or at least the sense
of them, or a short summary), while putting in the right side the equivalent
Articles and Paragraphs of the “Saturn Guidelines.” Chapters of this report
will be organized along the lines of the different Articles of “Part V.
Guidelines for Judges” of “Saturn Guidelines.” After each and any set of
provisions I will also join my commentaries. Let me point out as well that the
version of the “Decalogue” which is here taken into account is the very last of
it, as approved by the President with his circular letter of 30th
December 2008, No. 9. Its correct title is “Prescriptions and Suggestions on
Dealing with Civil Cases” and it encompasses at present twenty separate
Articles. In May 2011 this document has been extended by a Circular Letter of
the President of the Turin Court of Appeal to all first instance Courts of the
District of Piedmont.
2. Rules of the
“Decalogue” in comparison with “Saturn Guidelines for Judicial Time
Management:” the Issue of Active Case Management.
|
Turin Court “Decalogue” |
“Saturn Guidelines for
Judicial Time Management – Part V. Guidelines for
Judges” |
|
Article
4) Judges are invited to constantly
make use of Article 175 of the Italian Code of Civil Procedure (C.P.C.),
according to which “Judges dealing with civil cases should use all powers
aiming at a quicker and loyal carrying out of the proceedings.” They should as well take
into account Art. 127 C.P.C., prescribing that “… Judge directing hearings
can take all appropriate actions, prescribing what is needed in order to
ensure that cases are dealt with in an orderly and useful way. He/she
provides rules for the discussion of cases, setting the points to be debated
and closes the discussions, when he/she thinks it appropriate.” During the first hearing of
a case, the Judge should try to convince lawyers not to make use of the law
provisions allowing them to get adjournments and deadlines for deposing
additional petitions (which slows down the regular course of the proceedings:
unfortunately lawyers almost never give up to such a right, accorded to them
by Article 183 C.P.C.). Judges should try to avoid
drafting minutes of hearings in too lengthy a way. They should on the
contrary just sum up what lawyers are asking. Final petitions, submitted
by lawyers when the judge is about to decide the case, should be as clear and
concise as possible. Judges should as well try
not to concentrate too many hearings at the same time, but should fix them at
different times of the day, between 9 a.m. and 1 p.m. Article16)
Judges should make use of
the powers of Article 210 C.P.C. (“Order to parties of the case or to third
parties to provide evidence”) only when it is clear what are the documents or
the objects to be shown, in order to take evidence; it should also be clear
that one of the parties of a third person actually have such documents or
objects. Interim decisions
concerning such aspects should always clearly identify what documents and/or
objects should be shown before the judge (all too often lawyers simply ask
the Judge for an order to show “all commercial documents” concerning a
certain corporation, whereas they should list them one by one: e.g.
specifying kind of documents–like invoices, and so on–and also mention the
concerned period of time. 20)
Conciliation attempt Judges should often make use
of the discretionary power to try to convince parties to friendly settle the
case. In this framework he/she will also take note in the minutes of the
proposals of both parties, even though the conciliation attempt fails. Other relevant provisions in
this field are those of Articles 10 and 11 (see further, Paragraph No. 6). |
A.
Active case management 1. The judge should have
sufficient powers to actively manage the proceedings. |
That “The judge
should have sufficient powers to actively manage the proceedings” is
self-evident. However, directives and instructions issued by the Head of the
Court could help the judges to “find the strength,” taking into account the
current state of aggressiveness of Italian lawyers, to play a pro-active role.
Of course this should always be done within the frames of procedural rules,
which in my country do not, unfortunately, leave wide discretionary powers to
the Judge.
In this framework I
would particularly point out that the Judge has little or inexistent power to
fix a “quick start” of the case, taking into account rules set forth by the Italian
Code of Civil Procedure. Actually, according to Article 163-bis,
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). If one thinks that, at the first hearing, parties
have the right to get another adjournment of at least eighty days for
“fine-tuning” their petitions and pretensions (and it is enough that just one
of them asks for it, without any power for the judge to deny the adjournment)
it becomes clear that, after the service of a summoning on a certain day (a day
which, among other things, concretely and procedurally marks the official start
and beginning of the case), in the “quickest” imaginable solution, the Judge
can practically start dealing with the case not sooner than six months after
this event. This means that the Judge can start playing a pro-active role only
after that (at least!) a good half of the first of the two (or three, according
to our Strasbourg Programme) years of the “reasonable timeframe” has already
elapsed.
3. Rules of the
“Decalogue” in comparison with “Saturn Guidelines for Judicial Time
Management:” How to Adjust Time Management to General and Specific Targets.
|
Turin Court “Decalogue” |
“Saturn Guidelines for
Judicial Time Management – Part V. Guidelines for
Judges” |
|
Article
1) All civil cases pending for longer
than two and half years before the Court should be marked with a particular
tag of different colour, according to the fact that they have been pending
for: a)
longer than six years; b) between six and
two and a half years; c)
two and an half years. Judges should give priority
to all above mentioned cases. Article
2) Judges should ensure to
adjudicate cases mentioned in Article 1) according to the following
programme: - for cases of the a) group:
no later than … (six months); - for cases of the b) and c)
group: no later than … (one year). All other cases should be
finally adjudicated no later than three years from the day they have started. |
A.
Active case management (…) 2. Subject to general rules,
the judge should be authorized to set appropriate time limits and adjust the
time management to the general and specific targets as well as to the
particulars of each individual case. |
As far as this
point is concerned, let me stress again that rules issued by the Head of the Court
should, as it happened in the Turin case, set priorities among different cases,
like e.g.: reducing maximum length to no more than three years; giving priority
to cases exceeding that deadline or dangerously approaching to it, etc. I
understand that rules of the “Saturn Guidelines” are referred to deadlines
imposed by the Judge to parties (rather than by President to Judges), but the
Italian Code of Civil Procedure leaves little judicial discretion in this
field. I would like to underline again that, for example, adjournments on the
basis of Article 183 of the Italian Code of Civil Procedure cannot be avoided,
if at least one of the parties requires them, even in cases where it is
absolutely clear that they are useless and that lawyers just need them in order
to “add” such adjournments (as well as the petitions they wrote for each and
any of them) on the their final check for the liquidation of their fees and
honoraries. However, rules set by the President of the Court about time limits
in a framework such as that of the “Strasbourg Programme” can also help the
Judge to try to convince parties to avoid unnecessary requests and to try to
“adjust their pace,” in order to meet the requirements of a quicker procedure.
4. Rules of the
“Decalogue” in comparison with Saturn Guidelines for Judicial Time Management:
the Issue of Timing Agreements with Parties and Lawyers.
|
Turin Court “Decalogue” |
“Saturn Guidelines for
Judicial Time Management – Part V. Guidelines for
Judges” |
|
Article
6) Adjournments should never exceed 40/50 days. Judges should ensure that
cases lasting for longer than two and a half years get a priority treatment. |
B.
Timing agreement with the parties and lawyers 1. In the time management of
the process, due regard should be given to the interests of the users. They
have the right to be involved in the planning of the process at an early
stage. 2. Where possible, the judge
should attempt to reach agreement with all participants in the procedure
regarding the procedural calendar. For this purpose, he should also be
assisted by appropriate court personnel (clerks) and information technology. 3. The deviations from the
agreed calendar should be minimal and restricted to justified cases. In
principle, the extension of the set time limits should be possible only with
the agreement of all parties, or if the interests of justice so require. |
The issue of timing
agreement with the parties and lawyers is now dealt with at a general level by a
special provision of our Code of Civil Procedure. Actually recent reforms have
brought about the need, for each judge, at the start of each proceedings, to
draw a calendar of the process, in which the judge, taking into account
lawyers’ opinions, “foresees” and “predicts” when each and any of the steps of
the process will take place. Moreover, according to the guidelines issued by
the President, each judge has to try to help parties to friendly settle the
case. During such hearings judges prospect to the parties the advantages
brought about by a settlement, also envisaging what could be the path to be
followed by the case (of course no hint should be given on the merit of the
case, but the judge can very well say, for instance, that if the case goes on, he/she
will need to appoint an expert to answer this or that question, etc.).
Some months ago,
when we first tried to concretely implement provisions concerning the calendar
of the procedure, we discovered that it was not so easy as it could have
appeared at a first glance. It is almost impossible to foresee one or two years
in advance what the course of the case will be and to fix a certain day for
each and possible procedural event. Therefore I suggested a solution which was
concretely adopted by many colleagues, consisting in fixing not exact days, but
exact deadlines, such as e.g.: a) deadline for the accomplishment of the
hearings for questioning witnesses: no later than 30 June 2011; b) deadline for
the accomplishment of an expertise (in case this would show as relevant): no
later than 31 December 2011; c) deadline for the last hearing where parties
summon their final requests and petitions before the Judge adjudicates the
case: no later than 30 June 2012.
As far as above
mentioned Point 2. of Saturn Guidelines is concerned, of course I fully agree
with the principle that the Judge should also be assisted by appropriate Court
personnel (clerks) and information technology. Unfortunately in my Court (as
well as in almost any Court of Italy) only the second part of that sentence is
true. Staff is absolutely lacking and too often IT is used as a way to have
Judges perform (in addition to their regular duties) the tasks of clerks and
secretaries.
Let me add on this
point that in these very last months, thanks to the initiative of our Court’s
President Luciano Panzani an agreement with the local Law Faculty is going to
be signed in the next weeks. According to this agreement a certain number of
selected and qualified law students and young law graduated will be admitted as
trainees in our Court for periods of some months. We will take advantage of
this training initiative, on one side, to have a number of young people better
trained and prepared to face the very hard competitive examination to become
Judge (of course, provided they will; otherwise they will address themselves to
the legal profession, however with a much higher degree of awareness about the
functioning of the “judicial machinery” and of the real needs of a quicker and
more efficient justice). On the other side these people will provide a “helping
hand” to the day-to-day work of Judges and clerical staff, helping Judges to
draw minutes of hearings, to perform legal research activity, to put in order
papers, petitions, acts and documents (very often hundreds of pages!) within
each and any file, to single out particular questions and difficulties arising
from cases, to fine-tuning the ongoing process of using IT for case management
and the electronic management of procedures, to check that orders given by the
judge to clerks are properly enforced, that lawyers and/or parties and/or
experts have actually been informed about decisions to summon them for a
certain hearing, etc.
5. Rules of the
“Decalogue” in comparison with Saturn Guidelines for Judicial Time Management:
the Issue of Co-operation and Monitoring of Other Actors (Experts, Witnesses,
etc.).
|
Turin Court “Decalogue” |
“Saturn Guidelines for
Judicial Time Management – Part V. Guidelines for
Judges” |
|
Article
14) Judges should periodically
and systematically check all cases in which they are waiting for an expert to
draw and submit an expertise, in order to ensure that deadlines for the
submissions of such expertises are met. Deadlines for the submission
of expertises should not exceed 40/50 days. In case of not compliance Judges
should replace the expert with another one. Prorogations of such deadlines
should be awarded only in exceptional cases and upon motivated requests (e.g.
because parties, under the assistance of the expert, are trying to reach a
friendly settlement of the dispute). Judges should always empower
experts to try to find an amicable solution of the case. Among the vast number of
experts available, judges should prefer those who have proved to be able to
help parties to find a friendly a friendly settlement. Before appointing an expert,
Judges should invite parties to submit suggestions on the questions to be
asked. |
C.
Co-operation and monitoring of other actors (experts, witnesses etc.) 1. All participants in the
process have the duty to co-operate with the court in the observance of set
targets and time limits. 2. In the process, the judge
has right to monitor the observance of time limits by all participants, in
particular those invited or engaged by the court, such as witnesses or
experts. 3. Adequate and efficient
means have to be available against those players that do not fully co-operate
in the observance of the set targets and time limits. They may include
reduction of fees, striking from the list of experts, fines and other
sanctions. |
Guidelines issued
by Heads of Courts should (as it is the case for the Court of Turin) focus on
the need for the judges to closely monitor the respect of deadlines by experts.
It happens very often that experts, simply because they have maybe too many
assignments (and are not accustomed to workloads and working times of judges…),
tend to apply for an adjournment of the deadline originally set by the judge
for the delivery of the expertise. Judges should take care that such
adjournments are given only when strictly necessary (e.g. because parties are
discussing, under the control and with the assistance of the expert, for
reaching a friendly settlement of the case). As far as witnesses and parties
are concerned, judges should dispose of much more effective powers in order to
oblige them to attend the hearing. But, once again, it is up to the Legislators
to change current laws.
Actually a little
improvement has been brought about by a recent reform, according to which the
expert appointed by the judge, before submitting his/her report, has to present
it to the parties, who have a deadline to send him/her their remarks. Finally
the expert has to submit to the judge his/her expertise, together with the
parties’ remarks and his/her final comments on the parties’ remarks. According
to this procedure, lawyers will be no longer allowed to ask for further
adjournments for commenting the expertise. No further hearing will be
necessary, unless the Judge esteems that one or more points of the report need
to be more thoroughly explained. So, once the expertise and the remarks have
been included in the official file, the Judge can be ready to deliver his/her
final decision.
6. Rules of the “Decalogue”
in comparison with Saturn Guidelines for Judicial Time Management: the Issue of
Suppression of Procedural Abuses.
|
Turin Court “Decalogue” |
“Saturn Guidelines for
Judicial Time Management – Part V. Guidelines for
Judges” |
|
Article
4)
See above, Para. No. 2. Articles
5) and 8) No adjournments will be
granted without a specific and acceptable reason. Reasons for the lawyers to
ask for an adjournment (e.g.: parties are seriously dealing about a friendly
settlement of the case) should be explicitly mentioned in the minutes of the
hearing. Such minutes should as well state whether both parties agree on such
request. In the hearing following the request lawyers should always clearly
refer about the follow-up of the situation which originated the request for
an adjournment (e.g. about the results of their attempts to find a friendly
settlement of the case). Article
10) Judges should ensure that
both parties comply with requirements of Article 244 of the Italian Code of Civil
Procedure, concerning the way they should submit a request to the Judge for
questioning witnesses. In particular, Judges should
avoid to order the questioning of witnesses if: a) parties did not submit
specific questions to be asked; b) such questions do not
concern specific facts, but involve judgements and subjective appreciations
(to be possibly deferred to a Court’s expert); c) the number of witnesses
indicated by parties is too high and should be reduced by the judge; d) questions to be asked to
witnesses are irrelevant or can be answered through existing documents. In case a party wants to
hear witnesses about certain documents (e.g. invoices, estimates, etc.) the
Judge should first ask the counterpart whether he/she admits that document
has been drafted by that prospective witness. Only contested circumstances
have to be proved by witnesses: this means that the Judge, whenever possible,
will first ask what facts are denied and contested and will order to hear
witnesses only on those facts which are contested. Article
11) As far as questioning of
parties is concerned, judges should always try to convince lawyers not to ask
for it, as this kind of procedural activity is always useless. In case
lawyers insist on it, judges should avoid to record on minutes all remarks
made by parties pro se, as such
comments are already enshrined in lawyers’ acts and petitions. Replies should
be recorded in the shortest possible way (e.g.: “Yes, it is true;” “No, it is
not true.”) |
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. |
As far as formal
questioning of parties is concerned, the 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 their 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 dossiers with all
possible kind of acts, documents, petitions and activities, because (as I have
already explained) for each and any of such things they get fees.
This explains why a
serious reform of the Italian civil procedure would inevitably require a deep
change in the way legal fees are calculated. I have been many time advocating a
system (as the German one, for instance), in which lawyers’ fees are not linked
to the number of acts they write, nor to the number of hearings they attend.
This would be a very good step forward, but once again this cannot be done by
the judges. Critics of this position of mine (lawyers of course) misunderstood
this proposal as an attempt to curtail their revenues. This is by no way the
case. I am personally persuaded that lawyers’ fees should be much higher than
they are nowadays. The issue is not “how much” lawyers get, but “for what
purposes” and “in reward for what” they get what they get. So, if they work in
a competent and effective way, with the final result to have brought before a
Court only the cases that deserve to be brought before a Court, they should
earn much more than they actually do.
As I already
explained many times, also in this field much greater powers should be
advocated for Judges and this issue has to be primarily dealt with by the
Legislative Powers. 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 going to the Court for frivolous cases. Once the
process has started it is very hard for the Judge to convince parties to find
an amicable solution, because parties have already engaged expenses and lawyers
know that the longer the proceeding is going to last, the more they will be
earning.
Judges, on their
part, should be more attentive to the need to find ways to “punish” incorrect
behaviours by parties and lawyers. Currently our procedural rules give the
judges some powers in this sense. First of all Article 117 of the Italian Code
of Civil Procedure allow 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.
7. Reasoning of Court Decisions.
|
Turin Court “Decalogue” |
“Saturn Guidelines for
Judicial Time Management – Part V. Guidelines for
Judges” |
|
Article
3). 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. |
- - - |
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, one of the
“bottlenecks” 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 a recent reform,
affecting the two above-mentioned provisions of our Code of Civil Procedure,
obliges nowadays judges to be more concise. But the weight of a tradition
dating back centuries is still very strong. Therefore a recommendation like the
one enshrined in above-mentioned Article 3) of the “Decalogue” appears to be
most welcome.
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 could be
invited 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 and will report
next month of May in Turin. 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.
A mention of this
kind could as well be inserted in “Saturn Guidelines,” which apparently do not
contain provisions of this kind.
Giacomo Oberto, Judge of the
First Instance Court of Turin (Italy).
February 2011