“Justice delayed is justice denied”. This paper is a brief excursus on the most relevant novelties in the field of civil procedure. The recent law reform, well known as “Riforma Cartabia”, addressing judicial backlog has created uproar in the country. To address the enormity of arrears and adjournments, several procedural amendments have been introduced by Law n.206/2021 containing the delegation to the Government which later enacted the Legislative Decree n.149/2022. Law reform, financed by Europe through PNNR[1] funds, aims to identify suitable measures for the quick redressal of citizen’s grievances with a view to secure expeditious and economical disposal of pending cases.
Introduction
As a matter of fact, the efficiency of Italian justice has been questioned innumerably by the European Court of Human Rights as –unfortunately- our Judicial system failed to provide judgments in a reasonable time.
Therefore, there have been calls from Europe to review the judicial system in order to improve the standards of administration of justice and harmonize it in parallel with European Law.
As in any field, innovation is the need of the hour and with proper incorporation of technological advancement, the defunct systems like paperwork can be made redundant with the use of the court’s e-filing platform. Keeping in mind the said challenge, specific measures have been established for each phase of the dispute.
Initial stage of a lawsuit
The ordinary trial
First of all, before filing a suit –in specific cases- it is mandatory to reach at a point of mutual consent with help of ADR, namely: mediation or “negoziazione assistita”. Only if the terms of the settlement are unacceptable to the parties, they can pursue it in trial court.
Thus, as per the requirements mentioned in articles 163 and 163-bis[2] needs to be satisfied in order to service a writ of summons through a digital medium[3] which must indicate:
- the name of the court in which the suit is instituted;
- personal details of the defendant;
- purpose of the legal action;
- a clear statement of the facts;
- fulfillment of conditions of admissibility (ADR modes) if mandatory;
- statement of evidence, documents which the plaintiff intends to rely upon in support of his case;
- attorney and power of attorney’s details;
- the day of appearance[4]: the defendant must appear and answer the claim within 70 days from the date of first appearance;
- access to legal aid;
- mandatory assistance of counsel.
Pursuant to article 171-bis, after framing the main issue, the judge shall consider the preliminary questions within the following 15 days and may specify the issues to which the parties are entitled to respond in their briefs. The court may also direct the parties to opt for the new simplified trial governed by article 281-decies.
However, it is beyond doubt that our system is plagued with issue of vacant vacancies[5] so it will be interesting to see that how judges will respond to abovementioned rule.
Back to the point, both parties can specify or adjust the question of law, third party notice and raise issues relating to the suit by exchanging their pleadings[6] under article 171-ter in the following terms:
- first pleading: at least 40 days before the day of the first appearance;
- second pleading: at least 20 days before the day of the first appearance;
- third pleading: at least 10 days before the day of the first appearance.
The lawmaker, subsequently, reviews the previous exchange of pleadings in order to settle thema probandum and thema decidendum before the first hearing. This activity, in the past, was succeeded by first hearing causing an unreasonable prolongation of lis.
In the age of e-justice, the Italian legislator have taken several initiatives to improve access to judicial proceedings.
In fact, article 127-bis empowers judges to hold hearings remotely or by replacing them with written statements. Nevertheless, the parties have the liberty to challenge the outcome and make a pleading for an in-person hearing.[7]
It is pertinent to mention that the first hearing is the cornerstone of the suit in which every matter arising out of conflict is settled and the parties have to be present in person.
The judge may interrogate the parties, grant third-party notice, attempt to settle the dispute or order to convert the trial into a summary procedure. Superfluous hearings have been abolished, i.e. oath hearings of technical-legal consultants[8].
It is critical that their might be objections to mandatory personal appearance in virtual hearing so it is questionable that the above provision appears in contradiction with article 127-bis.
Once the case has been heard, the court may concede the measures of enquiry in accordance of the judicial calendar. It is important to note that in the hearing where evidence is taken shall be appointed within 90 days.
In this context, under article 183-ter, if the application of a party appears well-founded the court may also grant a summary judgement. It is pertinent to point out that this ordinance is provisionally enforceable and the opposite party is authorized to appeal pursuant to article 669-terdecies.
In case of substitution of hearing with written pleadings, the court must set a deadline, and a judgment shall be delivered within 30 days. To the extent of non-submission of briefs, the judge may allow appoint another hearing and if both parties don’t appear, the case is struck out of its list.
The judge may refer the suit to the final stage of the decision[9] by scheduling a deadline to submit the final pleadings[10] as follows:
- summing-up: prior 60 days of the day of the hearing;
- summary of final arguments: 30 days before hearing;
- reply brief: 15 days before hearing.
If the parties request oral proceeding summing-up briefs must be filed 60 days from the date of hearing and briefs containing final arguments must be submitted 30 days before hearing.
The new simplified trial
Alternatively, the new simplified trial[11], governed by article 281-decies, is employed when the facts of the suit are not controversial, or when the claim is based on documentary evidence or is ready for disposal. In such cases, the simplified procedure also applies to disputes falling within the jurisdiction of the court in collegial composition.
However, if the aforesaid conditions are not satisfied, the court shall convert this procedure into an ordinary trial.
More importantly, as of June 30, 2023, all summary proceedings covered by 702-bis and following articles will be abolished.
While the choice of the old summary procedure pursuant to article 702-bis was basically left to the discretionary power of the appellant party (except for specific matters), the new simplified procedure becomes the mandatory procedure, even in case of collective jurisdiction.
Having said that, after the first hearing is appointed, a summons must be issued to the defendant and the party shall file a written statement 10 days before the day of appearance.
The defendant apart from replying to the plaint, may also bring his claim for a counter- claim and add a third party to the suit for his defense. In this case, the court may grant a deadline period to serve on the third party.
On the other hand, the plaintiff is entitled to add the third party only if this is necessary to respond to the claim of the other party.
However, it may be pointed out that according to experts, there is a reasonable risk than an excessive expansion of this procedure will lead to a limitation of the exercise of the rights of the defense and the right to a fair hearing.
The new family trial
While the abovementioned novelties are likely to leave experts shaking their heads, the new family trial[12], on the other hand, can be greeted with enthusiasm.
Disputes over personal status, family matters and minors were quite chaotic due to its pieacemeal jurisdiction. These issues are now covered by 473-bis and following articles, which state that only one court[13] has jurisdiction over all disputes.
Minors are indeed particularly vulnerable therefore require a special support from the judicial administration throughout the process. The minor is heard only by the judge -who may use the help of an expert- due to the fact that the court is a place where a child recalls the traumas already suffered[14]. If one or both parents lose the guardianship, the judge appoints a guardian for the minor. In light of the interest of the child, the suit must be brought before the court within whose jurisdiction the minor has his habitual residence.
In separation and divorce proceedings, both parties can file the petition for separation and divorce at the same time which may save a reasonable amount of time.
A special section is dedicated to domestic and gender based violence against one of the parties or minors. In such cases, the court has broad powers in terms of granting investigating measures, and the judge is duty bound to take action so that the safety of the victim is ensured.
There are also measures aimed at finding an amicable agreement between the parties through one of the modes of ADR, namely “negoziazione assistita”.
Issues entitled to be settled are:
- out-of-wedlock births;
- support of adult children born out-of-wedlock who are not self-sufficient;
- payment of maintenance and alimony regarding adult children who are not self-sufficient.
Employment and labor law proceedings
Redundancy appeals attached to the application for reinstatement are given the highest priority pursuant to the new article 441-bis. In such cases, the parties may also challenge issues related to their employment. Terminations involving membership in a cooperative fall under the jurisdiction of the labour court.
Given the importance of determining whether or not a dismissal is fair, the court has the power to reduce the duration of the proceedings by half.
In order to deal with the motions for reinstatement expeditiously, the judge may consider all preliminary questions at the first hearing itself.
Lawyers can handle the entire out-of-court procedure under “negoziazione assistita” as per law n. 162/2014, which is not a prerequisite for the admissibility of the action before the labour court.
Execution proceedings
Garnishee procedure is also affected by law reform[15]. Firstly, it concerns the question of territorial competency of the court in case the debtor is a public administration. In such cases, according to articles 491, 543 and 149, the suit must be instituted in the court of place where the State Attorney’s office is located in whose district the creditor has his residence or registered office.
Secondly, after the plaint is instituted the judgement-creditor must serve the notice of case registration not only to the judgement-debtor but also to the third party before the first appearance.
Unless these conditions are satisfied, the plaint cannot be considered duly instituted.
Where it is found that an unsolved, urgent, substantial question of law, not previously settled by the Supreme Court has been raised, the judge may refer the issue of law to the highest court and the trial is suspended as per article 363-bis. It is important to note that the question of law must be new and essential to dispose future lawsuits.
Appeals
As regard as the admission stage, the “filter section” is now past history, the decision on inadmissibility will be made by the judge who will appoint a proper hearing[16].
Most importantly, lawmakers considered reinstating the role of “Consigliere istruttore” – the examining magistrate or trial judge- which was abolished in 1990.
The appellate court may appoint the abovementioned judge which has broad authority over the conduct of the trial as proceedings are not necessarily held before a panel. The judge addresses preliminary issues, sets deadlines for the parties to submit their briefs, and schedules a hearing before the panel.
A final decision is made in two modes that follow the same rules as the first instance proceeding[17].
Moreover, the party aggrieved by the judgment is entitled to file a stay of execution.
The new version of article 283 clearly states that the appellate court has the authority to grant a stay if the application appears reasonable and a risk of substantial loss to the appellant even when the sentence concerns the payment of a sum of money, also in relation to the possibility of insolvency of one of the parties.
In case of rejection, should other elements arise after the application has been rejected, the party may re-file for a stay.
With regard to appeals at the Supreme Court (Court of Cassation), an expeditious chamber proceeding has been introduced to dismiss frivolous applications pursuant to article 380-bis. Similarly, the interpretation of any substantial question of law, as already mentioned, which affects the final decision of a judge is meant to be settled by the apex Court.
It is beyond doubt that principles set forth by the European Court of Human Rights play a crucial role in our judicial system. Bearing in mind this context, the Italian lawmakers have also reviewed the powers of the Supreme Court to revoke a judgment under article 391-quater.
But before such a relief is granted, the court must re-examine the final decision of the national judge and the fundamental rights and principles of the ECHR that conflict with it.
ADR tools
The aim of the legislative reform is to strengthen and promote ADR modes by recognizing tax benefits and granting legal-aid to the parties involved.
In view of the aforementioned challenge, it is now imperative that in certain contractual disputes provided for by law –among other cases- mediation route must be taken before approaching any court.
In fact, it is a condition of admissibility, and in case of non-fulfillment, the suit will be dismissed.
Given the importance of out-of-court resolutions judges must also be trained to use it efficiently.
Negotiation (negoziazione assistita) can also be employed by the parties, and like mediation in such cases, is made mandatory by law n.132/2014, but the most drastic innovation concerns the possibility of acquiring statements from third parties.
Needless to say, arbitration is appreciated worldwide and, in order to achieve the same result in our country as well, lawmakers introduced a few measures to promote its use.
The arbitrators have been empowered and their ambit increased in order to build a better relationship with the parties.
To be eligible, arbitrators must be impartial and independent. They must make a statement indicating any issues that might affect their impartiality. In the event of non-compliance with the aforesaid rule, they must be disqualified from their position.
More importantly, the Italian lawmaker empowered the arbitrators to order interim protection measures pursuant to article 818.
This topic will be discussed in detail in the next paper.
Not least of all, recognition and execution of foreign judgements needed a speedy proceeding too. Council chamber, in fact, is now allowed to grant execution of abovementioned decisions without hearing the parties.
Conclusions
Having briefly covered the most relevant innovations, it is appropriate to address the reactions that this legislative reform has provoked. It will not be an understatement to mention that legal experts are very perplexed about the compression of the right to defense for example in case of remote hearings, digital e-filings as many lower courts are not well-equipped. And above all, the discontent also stems from the anticipation of the reform on February 28, 2023.
Whether this is a progressive reform or not it is in the womb of the future and can’t be predicted but one thing is certain: practical problems must not be overshadowed by the myopic views of lawmakers –which is certainly to be appreciated- but one has to deal with reality.
It is hoped that the need to expedite and simplify the trial will not curtail the rights of citizens.
[1] The National Recovey and Resilience Plan provides a package of investments and reforms worth 222.1 bilion euros.
[2] Entry into force on 30 June 2023.
[3] Service of the summons on the defendant shall be made by transmitting an e-copy by certified e-mail if the party has a digital domicile. It is worth mentioning that disputes over movable property under 10,000 euros and vehicle accident compensation cases under the value of 25,000 euros fall under the jurisdiction of the Justice of the Peace.
[4] Between the day of service of the summons and the day of the hearing, there must be a period not less than 120 days if the service is in Italy, and 150 days if it is abroad.
[5] A special staff (Ufficio del Processo) has been hired by the Italian lawmaker to fight the backlog.
[6] Only via the court’s e-filing platform.
[7] Within 5 days from the date of service of the court order.
[8] The swearing is done by making a written statement.
[9] If the parties request oral proceeding summing-up briefs must be filed 60 days from the date of hearing and briefs containing final arguments must be submitted 30 days before hearing.
[10] This countdown is calculated backwards from the day of the hearing.
[11] It will enter into force on the 30th of June 2023.
[12] Entry into force on the 1st of March 2023.
[13] It will be established on 17 October 2024.
[14] The child must be heard immediately when he refuses contact with one or both parents.
[15] Applied to suits served from 22 June 2022.
[16] Applied to appeals served from the 1st of March 2023.
[17] In case of oral proceeding, the final judgment is made within 30 days. Otherwise, parties may exchange their briefs (summing-up within 60 days/final arguments within 30 days, and reply briefs within 15 days). In this case, the final decision is delivered within the following 60 days.
