Deputy President of the Court of Appeal of Rome

CLAUDIO FANCELLI

Deputy President of the Court of Appeal of Rome

THE ADMINISTRATION OF JUSTICE AT THE COURT OF APPEAL OF ROME

OBSERVATIONS AND PROPOSALS FOR APPEAL PROCEEDINGS OF QUALITY AND OF REASONABLE LENGTH

1. Background -2. Numbers – 3. Causes of the excessive length of proceedings – 4. Current rules governing appeal – 5. Proposals for reform and organizational changes in line with the fair trial principle.

1.  Background

I have spent over 20 years serving on this Court of Appeal. At first as a “consigliere” (i.e. as a judge of the court), then as a “presidente di sezione” (i.e. as president of one of the court sections) and recently, for about one year now, as “presidente reggente” (i.e. deputy president of the Court).

I can therefore say that I really know, through my long experience also through their evolution in time, the problems of the administration of justice here, at this Court of Appeal, which is the largest in Italy, since it has jurisdiction over the whole territory of the Latium region.

Over the years I experienced that, in spite of all the various and wide-scale reforms of court procedures - both civil and criminal - the number of suits pending at the appeal court has risen more and more, although it recently stabilised - even if at its highest level.

The average length of an appeal, in the civil field, is of about three/four years, which is definitely in contrast with the maximum length set by the European Court of Human Rights for an appeal which can be said to be of a reasonable duration. Indeed, the ECHR has repeatedly condemned the Italian state for not having complied with said limit.

At the same time the Rome judges cannot be blamed of having a low productivity since their average standards are constantly increasing. Moreover, this result was not achieved thanks to an increase in their number or to monetary or other types of incentives - there hasn’t been any of that - but thanks to their commitment to their job and their awareness of the fact that they have to provide a product, i.e. justice , which has to be qualitatively acceptable and also respectful of the fundamental right of citizens to a fair and speedy trial, in compliance with the principle enshrined in Article 111 of the Italian Constitution as recently amended.

Indeed this Article, amended by Constitutional Law no 2 of 23 Nov 1999, firstly sets out that trials have to be held ensuring the right of the parties to be heard [nel contraddittorio delle parti] and respecting their right to defence before an impartial court, and then sets out that they must have a reasonable length. And this principle has been immediately reflected in the jurisprudence on the law and merits which tends not to justify any superficial formalism impeding the right to a valid and rapid decision on the merits of the case (see, most recently, the decision by the Court of Cassation – in joint sections – no 5456 of 6 March 2009 and no 24883 of 9 October 2008).

2.  Numbers.

The true problem of the Court of Appeal of Rome continues to be the excessive length of its trials, which often reaches an unacceptable level.

In order to underline the seriousness and vastness of this problem (which is also suffered at national level, in all Italian courts, as denounced in many of the speeches given at this year’s opening ceremony of the judicial year) it is useful to give some data on the structure, number of staff, workload of the judges and flow of the cases before our Court, as shown in the tables enclosed.

These data are certainly of interest for the heads of the Courts of Appeal of the European Union present here today, since, as I personally noticed on other occasions when foreign colleagues came to visit us, this enables them to make an easier comparison with their offices.

This Court adjudicates in a panel of three justices and is divided into several sections. For civil matters there are 4 sections for general cases and 6 specialised sections (for matters relevant to labor, land, public waters, industrial and intellectual property, local by-laws [usi civici] and adequate reparation). There is also a family and a juvenile section which is also competent for juvenile criminal cases. For criminal matters there are 4 sections, one of which (the 4th one) is a specialised section. There are also 3 sections for appeals from the Court of assizes.

The judges serving on the Court are normally around 150, two thirds of which deal with civil cases and one third with criminal cases.

Taking into consideration the data for the recent 2006-2008 three-year period, we can see that:

in the civil field (including the labour section) at the end of 2008 there were around 90,000 (49,754 +40,727) cases pending, with an increase of about 21,000 cases compared to early 2006 (37,802+30,917). The percentage of cases pending for more than three years at the end of 2008 was 35,8%.

The new cases reached an average of 28,000 per year (16,349+11,798 in 2008). The cases finalised in 2008 were around 26,000 (16,131+10,040), in 2007 they had been nearly 23,000 (12,880+9,902);

in the criminal field at the end of 2008 there were around 18,500 cases pending, with an increase of about 4,000 cases compared to early 2006. The percentage of cases pending for more than three years at the end of 2008 was, for the three sections dealing with general cases, 6,9% over a total of 17,829 cases.

Every year there are around 10,500 new cases (10,593 in 2008, 10,552 in 2006). Also in this field, in the 2006-2008 three-year period, we have had a regular increase in the number of cases finalised (8,456 in 2006; 8,472 in 2007; 9,105 in 2008) although, unlike the civil field, it takes an average of one year and a half for finalization.

Having said that, from the data relevant to the three-year period under consideration, it is easy to reach a very negative conclusion as to this Court’s activity: it has an enormous backlog of cases (each judge of the civil field has between 700 and 900 cases docketed for trial, and each judge of the labour section has over 1000) and an abnormal length of time needed to reach a decision in the civil field. On the other hand, it has to be said that there is a sharp increase in the number of cases finalised but, due to the increase in the number of cases brought before this court, this does not reflect in a reduction of the cases pending.

Consequently, the time needed to finalize a case, instead of diminishing, tends to increase ever more, with the perverse effect of multiplying the number of cases brought by citizens against the Italian state in order to obtain a fair reparation for the unreasonable length of proceedings (at present, there are around 18,000 cases pending before the Section competent for Adequate Reparation).

3.  Causes of the excessive length of proceedings

It is generally agreed that the causes of the excessive length of proceedings in Italy are many, and this is also true for this Court of Appeal, due to the fact that:

a) the demand for justice is continuously increasing - both in the civil and criminal field - more than in other States with an equivalent legal culture;

b) this problem cannot be dealt with simply by increasing the number of judges: this is already at the maximum level (12 for every 100,000 inhabitants), higher than that of neighbouring countries such as France and Spain (10 for every 100,000 inhabitants), and also because a further increase would create serious recruitment problems if we want to preserve quality (at the last competitive examination for the recruitment of 500 judges only 390 candidates were admitted to the oral examination out of 5,000 candidates);

c) there is a persisting irrational distribution of the courts over the territory which does not enable to distribute the workload evenly;

d) there is a scarcity of Alternative Dispute Resolution means providing an alternative to a court decision - such as the preliminary conciliation attempt [tentativo di conciliazione] before specialised organs of the Public Administration, or mediation and arbitration before professional or highly qualified organs. These means of Alternative Dispute Resolution not only would enable to solve rapidly and at a limited cost a high number of disputes, but could also be a remarkable filter for selecting the cases reaching ordinary courts; even if we simply think of the appeal phase, there could be the provision to reiterate in this phase an effective attempt to reach a conciliation;

e) there is a low propensity to reach reasonable compromise solutions [soluzioni transattive] which is probably due to the poor cooperation in this sense given by the far too many lawyers practicing in Italy, as well as to the insufficient knowledge of the case file by the judge, who often has to deal with an excessive number of cases;

f) there had been a proliferation of different trial procedures before the partial reform of civil trial introduced last July in application of law no 69 of 18 June 2009;

g) there is a limited computerization of court proceedings which is a present only at an experimental level - if not a mere project;

h) there is a lack of certainty as to the sentence and its effectiveness which induces defendants not to avail themselves of the instruments that have been devised to accelerate proceedings, such as plea-barganing for example.

i) finally, last but not least, there is a chronic lack of human and material resources.

4.  Current rules governing appeal

Italian laws on civil procedure are different from those of other states, such as France for example (see the report of 24 May 2008 on the Mission to Italy presided by Jean-Claude Magendie) where an appeal is considered as a means for ending a litigation which is examined both as regards facts and law, thus enabling the appeal judge to extend its competence to factual circumstances, new questions and evidence.

An appeal in Italy does not start a totally new trial, as would happen if new evidence or requests which have not been submitted at the first instance trial were admitted without discrimination; instead, the appeal follows the devolution principle expressed in the latin phrase tantum devolutum quantum appellatum, in the sense that the appeal can only examine the same questions as those examined at first instance - since it is simply a revision of the first instance trial (the latin revisio primae instantiae) – in relation to the complaints raised in the appeal (prohibition to state on aspects described with the latin expression ultra petitum and extra petitum).

However, as a matter of exception, the Italian criminal code provides some remedies in order to cling the final decision to the actual situation, that is to say: estoppel applies only to final decisions relevant to situations that are permanent and immutable in time; accessory requests and requests for damages or restitutions are admissible in the appeal proceedings if arisen after the appealed decision was rendered; new evidence which is deemed essential for the decision and which the parties prove to have been unable to submit at the first instance trial for reasons independent of their will is admissible .

With the reform brought in by law no 69 in 2009 – which in order to speed the proceedings, at first instance level, introduces a summary decision on the merits of the case [procedimento di cognizione sommaria] given by means of an ordinanza having the force of a judgment [sentenza] - the admissibility of new evidence at the appeal is made possible simply on the basis of a conclusion that such evidence is relevant. This possibility makes totally void the prohibition of what is defined in latin as a ius novorum, with respect to evidence at the appeal, considering that even at first instance level only evidence deemed relevant is admissible.

Also the time limit for filing an appeal has been modified: in case of a summary decision, this limit is of 30 days from the day the ordinanza is communicated or served (previously it was only from the date of service of the judgment, and service was to be made by the interested party); the so-called “long” time limit is reduced from one year to six months from the date the relevant decision is published. The preparation of the case can be delegated to any of the members sitting in the court. The time limit for resuming an interrupted trial has been reduced from six to three months. Also the time for court appointed experts to draw up their reports has been limited and written evidence has been made admissible. The special procedure for company proceedings [rito societario] and that for damages arising from road traffic accidents have been abolished.

These are, in substance, all the amendments introduced by the new law which have repercussions on appeal proceedings relevant to civil matters. It results that these reforms do not influence, except in an extremely minor way, the length of civil proceeding at the appeal stage. Moreover, the reduction in the time limit set for submitting an appeal is counterbalanced by a longer time limit for entering an appearance (from 30/40/60 days to 90) fixed since March 2006 for the service of summons in Italy as an effect of the relevant law of amendment, i.e. law no 51 of 23 February 2006.

Of the variety of special procedures introduced by the many mini-reforms which have characterized our recent years, the last reform eliminated two of such procedures, but at the same time introduced a new one (the summary trial at first instance [processo sommario in primo grado]) the usefulness of which is all to be proven in practice since the choice of this option - instead of the ordinary procedure - is left to the initiative of the parties (through their lawyers) and it is up to the judge to assess whether a summary preparation of the case [istruttoria sommaria] is suitable for the case at issue.