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The Never-Ending Reforms of Italian Civil Justice






ELISABETTA SILVESTRI*

SUMMARY: 1. The present state of Italian civil justice. – 2. Many reforms, no positive results. – 3.

What will the future bring?

1. When I sat at my desk and decided to write a short essay on the latest Italian reforms in the

field of civil procedure, the first question I asked myself was: where should I start? Since 1990 no

year has gone by in Italy without a reform that was announced as the ‘mother of all reforms’, the

one that would solve at last the many problems affecting the administration of justice at large, and

most of all reverse the dramatic state of civil justice. Then I realized that there was no point in

boring the reader with an endless list of what can be considered as a long series of failed attempts

at patching up a fabric that – unfortunately – is beyond repair. Obviously, this is my personal point

of view: in order to allow you to establish whether I am right or wrong, I decided to begin by

offering you some data so that you can form your own opinion. I am almost certain that, in the light

of the data I am about to present to you, you will have to agree with me.

The data come from official sources, in particular from the Report on the state of justice

submitted to the Parliament by the Minister of Justice in January 2011.(1) At the end of 2010, six

million civil cases were pending before Italian courts, which means that approximately fifteen

million Italians were waiting for a judgment. And it is a very long wait they have to endure: the

average length of civil proceedings (from their inception to the exhaustion of all possible appeals) is

seven years and one month in the Northern regions of the country and nine years and seven months

in the South. This is the average length: it is estimated that in the South approximately sixteen cases

out of one hundred cases may last up to twenty years.

Let us take a look at how Italy ranks in Europe and in the worldwide scenario as far as the

administration of justice is concerned. Among the countries of Western Europe, Italy has the worst

performance regarding the length of judicial proceedings.(2) The many judgments issued by the EU

* Associate Professor of Comparative Civil Procedure & Director of the Post-Graduate School for Mediators and ADR

Professionals, School of Law, University of Pavia, Italy.

(1) The complete text of the Report is available online at < https://www.governo.it/ GovernoInforma/ Dossier/ giustizia_

relazione/rela_integrale.pdf >.

(2) According to the official statistics of the European Court of Human Rights, between 1959 and 2010 Italy scored the

highest number of violations of the principle according to which an essential component of the right to a fair trial, as

elucidated by art. 6.1 of the European Convention on Human Rights, is the ‘reasonable length’ of judicial proceedings:

see the file ‘Violation by Article and by Country 1959 – 2010’, at < http: //www.echr.coe.int/NR/rdonlyres/2B783BFF-

39C9-455C-B7C7-F821056BF32A /0/ Tableau _de_ violations_19592010_ENG.pdf >. This explains why 60% of the

violation judgments issued against Italy concern the length of proceedings: see ‘Statistics for Italy on 1 January 2009’,

at < https://www.echr.coe.int/NR/rdonlyres/B21D260B-3559-4FB2-A629-881C66DC3B2F /0/ CountryStatistics

01012009.pdf >.

Court of Human Rights for violation of article 6 of the European Convention on Human Rights

(ECHR) mean that the Italian national budget is burdened by the huge expenditure necessary to

match the financial compensation the State owes to those whose right to a fair and reasonably long

trial has been infringed: to help you understand how dramatic the problem is, consider that for the

years between 2002 and 2009 such an expenditure reached the astronomical amount of 267 million

euros, taking into account both the compensations paid and the outstanding ones.(3)

As of December 2, 2010, 2, 183 cases against Italy concerning the excessive length of judicial

proceedings (mostly civil cases) were pending before the European Court of Human Rights. This

figure comes from the latest Interim Resolution issued by the Committee of Ministers of the

Council of Europe, (4) which is the last one in a long list of Interim Resolutions addressing the same

issues from 1992 on. In criticizing the Italian authorities for their inability to devise solutions for the

endemic problem of the backlog crowding the courts, the Committee cast light on a new

phenomenon: a growing number of applications submitted by Italians to the European Court of

Human Rights now concerns the issue of excessive delay in the payment of monetary

compensations the Court originally awarded to them, compensations that cannot be obtained from

the Italian government within a reasonable amount of time.

In the worldwide scenario, things are even worse for Italy. According to the yearly report issued

by the World Bank on the performance of 183 selected countries (the famous ‘Doing Business

Report’), Italy ranks 157 with reference to the indicator labelled as ‘Enforcing contracts’.(5) This

indicator measures the time, cost, and procedural complexity of resolving disputes between two

domestic businesses over the breach of a contract for the sale of goods. The Italian rank has been

constant over several years, with no signs of improvement. What the World Bank takes into account

is the procedure before a court of first instance, that is, the time necessary to obtain an enforceable

judgment, and to enforce it as well. Here are the results of the survey: in Italy it takes an average of

three years and three months to complete this cycle; forty-one different procedures are involved,

and 30 percent of the claim is eaten up by the costs of litigation and attorneys’ fees. The comparison

(3) The data related to the cost of justice delayed for the national budget come from a very interesting Report prepared

in 2010 by ‘Cittadinanza Attiva’, a consumer association. The Report is named ‘Grandi opere: la giustizia – Il rapporto

sulla giustizia in Italia’, and is available online at < https://www.cittadinanzattiva.it /files/doc_man/

giustizia/rapporti_pit_giustizia/2010_II_rapporto_pit_giustizia_completo.zip >, p. 44 – 51.

(4) Interim Resolution CM/ResDH (2010) 224, Execution of the judgments of the European Court of Human Rights

concerning the excessive length of judicial proceedings in Italy (adopted by the Committee of Minister on 2 December

2010 at the 110th meeting of the Ministers’ Deputies), at

< https://wcd.coe.int/wcd/ViewDoc.jsp? id=1715973& Site=CM >.

(5) Here, reference is made to ‘Doing Business 2011’: the country report for Italy is available at

< https://www.doingbusiness.org/~/media/FPDKM/Doing%20Business/Documents/Profiles/Country/DB11/ITA.pdf >.

with other European countries, such as the Netherlands, France or the United Kingdom, casts Italy

in a very poor light.

2. This being the situation, you can understand why previously I spoke about the reforms that

took place starting from the 1990s as a series of failed attempts.(6) I suppose you wonder why the

reforms have failed. The main reason is that the Italian legislator thought things could be improved

by changing only the procedural regulations, and leaving the environment in which such regulations

are supposed to work untouched. Procedure does not operate in a vacuum: you can change it as

often as you want, but if you do not improve the institutional and structural settings that are the

necessary background of procedure, then you cannot expect any positive results. Just to give you

some examples: the judicial geography is more or less the same as Italy had when it became a

unified country (that is, one hundred fifty years ago), which means a very inefficient distribution of

courts throughout the national territory; Italy has a very high number of professional judges, but

civil courts are understaffed because the way criminal trials are organized implies that often judges

in charge of civil cases are called upon ‘to give a hand’ in dispatching criminal cases. The share of

the national budget allocated to the administration of justice is not much smaller than in other

European countries, but money is spent in irrational ways (for instance, building new courthouses

that end up being called ‘cathedrals in the desert’). Italy has too many lawyers (a little less than

250, 000); (7) statutes assign to courts disputes that could be resolved more effectively and quickly

by resorting to administrative procedures – for example, the many disputes over unemployment

benefits, disability benefits, social security benefits, and the like; the Italian legal system is

obsessed with appeals, so that even a judgment issued by the court of last resort can be appealed

against under special circumstances. The list could continue, but I think the examples I made are

enough to help you understand at least some of the reasons explaining the failure of the recent

reforms of civil procedure.

If we move to take a close look at the reforms themselves, we notice that the Italian legislator has

taken pride in disregarding the common trend of the recent procedural reforms adopted in England,

France, Spain, and Germany. In order to improve the efficiency of civil justice, the countries I have

just mentioned have all chosen case management, even though to different degrees and in different

(6) For an overview of the many reforms implemented in the last two decades in the field of civil justice, see CAPONI,

R., ‘Italian Civil Justice Reform 2009’ (2009) 14 ZZPInt 143; VARANO, V. and DE LUCA, A., ‘Access to Justice in Italy’

(2007) 7 Global Jurist, available at < https://www.bepress.com/gj/vol7/iss1/art6 >; TARUFFO, M., ‘Procedural Reform in

Italy’, in TROCKER, N. and VARANO, V. (eds.), The Reforms of Civil Procedure in Comparative Perspective (Torino,

Giappichelli Editore, 2005) 217; CHIARLONI, S., ‘Civil Justice and Its Paradoxes: An Italian Perspective’, in

ZUCKERMAN, A.A.S. (ed.), Civil Justice in Crisis (Oxford, Oxford University Press, 1999) 263.

(7) See SILVESTRI, E., ‘The Legal Profession in Italy: Regulation v. Competition? ’, in UZELAC, A. and VAN RHEE, C.H.

(eds.), The Landscape of the Legal Profession in Europe and the USA: Continuity and Change (Cambridge-Antwerp-

Portland, Intersentia, 2011) 145.

forms. They have set up a strong and well-structured preparatory stage of the proceeding in which

the parties and the judge cooperate so as to narrow the issues in dispute, establish the time frame of

the future development of adjudication, choose the evidence that will have to be taken, explore the

possibilities of a settlement, and so on. No matter if case management implies a specific preliminary

hearing for the preparation of the case with a view to a subsequent main hearing, when evidence is

taken and the parties make their final submissions – as in Germany(8) or in Spain(9) – or a more

articulated sequence followed first to decide which procedural track is suitable for the case at stake,

and afterwards to prepare the case under the direction of a judge appointed for taking care of this

task, if the complexity of the case calls for a real preparation – as in France(10) – the recurring

element of case management is the active role conferred on the judge for the efficient development

of the adjudication.

An active role for the judge means granting him or her more powers, including the power to

apply sanctions on the parties at fault, but it also means curbing substantially the leeway left to the

parties for their strategies, and that is exactly what the Italian legislator decided to avoid. Actually,

the reform passed in 1990 made a modest attempt at introducing a minor version of case

management by providing for a simplified and concentrated form of preparation of the case. Due to

the strong opposition coming from the Bar, in 1995 a step back was taken, and the preparatory stage

of the case was diluted over three non-concentrated hearings that could easily become five, six or

more, since each hearing could be adjourned. This phase was followed by a series of fragmented

hearings for the taking of evidence according to the old, traditional Italian way of proof-taking, and,

therefore, no improvement was brought about by the reforms of 1990 – 1995.

That the Italian legislator was determined to hold on to the Italian ‘exceptionalism’ within the

European landscape of modern civil procedure was revealed most of all by the new special rules

enacted in 2003 for commercial cases. The drafters of the reform openly acknowledged that these

new rules were supposed to be a sort of rehearsal of a general rewriting of the entire Italian civil

procedure: the content of the new rules can be described with a slogan “let’s privatize civil justice,

and reduce the judge to a sort of clerk, whose only role is to take notice of the parties’ will”.

Subsequent reforms have allowed the parties to choose this new procedure as an alternative to the

so-called ordinary procedure, but the practice showed that the new rules had many drawbacks, and

(8) See MURRAY, P. L. and STÜ RNER, R., German Civil Justice (Durham, NC, Carolina Academic Press, 2004) 225.

(9) See DÍ EZ-PICAZO GIMÉ NEZ, I., The Principal Innovations of Spain’s Recent Civil Procedure Reform, in TROCKER,

N. and VARANO, V. (eds.), The Reforms of Civil Procedure in Comparative Perspective (Torino, Giappichelli Editore,

2005) 33.

(10) See FERRAND, F., The Respective Role of the Judge and the Parties in the Preparation of the Case in France, in

TROCKER, N. and VARANO, V. (eds.), The Reforms of Civil Procedure in Comparative Perspective (Torino, Giappichelli

Editore, 2005) 7.

were likely to cause further problems, since they paved the way to new and more sophisticated

delaying tactics.

And now we come to the most recent comprehensive reform, dated 2009. Many new rules have

been enacted, but very little has changed in reality. It is true that the procedure for commercial cases

has been repealed, but the trend toward the privatization of civil justice is still alive and kicking.

But I will come back to this aspect later.

The ordinary proceeding is still far from the pattern that is predominant in Western Europe

nowadays. A real preparatory phase is still missing: after the pleading stage, the first hearing before

the judge is not aimed at narrowing and clarifying the issues, but has only the purpose of setting

into motion an exclusively written preparation of the case. Such a written preparation will take

place through an exchange of pleadings that can drag on from one hearing to the next for a very

long time. Similarly, in a subsequent stage of the proceeding the evidence is taken in a piecemeal

way, and the judgment is not issued immediately after the final submissions of the parties, but much

later. Concentration and immediacy are still utopias, not to mention orality: even witnesses are not

expected to give their depositions orally any longer, since now it is possible to use written

affidavits. Case management is unheard of. Theoretically, the judge could set the ‘calendar of the

procedure’, but the wording of the relevant rule clarifies that he or she could only set the dates for

the hearings devoted to the taking of evidence. Therefore, such a calendar has no bearing on the

preparation of the case, whose time frame is left to the parties. Furthermore, no sanctions are

provided for in order to force compliance with the deadlines set by the judge: in other words, the

rule has the same effect as a toy weapon, and is completely useless.

Coming back to the plan of privatizing justice, a clear sign pointing in this direction is the recent

statute on out-of-court mediation.(11) It is true that Italy had the duty to implement Directive

2008/52/EC of the European Parliament and of the Council of May 2008 on certain aspects of

mediation in civil and commercial matters, but the Italian legislator jumped at the chance to make

mediation mandatory in a wide variety of civil cases, so that parties can go to court only if an

attempt at mediating their disputes has failed. I have to admit that I am biased against ADR, since I

do not subscribe to the idea that a settlement is under any circumstances a better solution than a

judgment, most of all in a country, such as Italy, where you can grow old while waiting for that

judgment.(12) In any event, the choice of making mediation mandatory is simply a strategy to keep

disputes out of courts, that is, it is a choice made with the only purpose of deflating the courts’

(11) Legislative Decree n. 28 of March 4, 2010 (Gazzetta Ufficiale, 5 marzo 2010, n. 53).

(12) See SILVESTRI, E., ‘ADR Italian Style: Panacea or Anathema? ’ in UZELAC, A. and VAN RHEE, C.H. (eds.), Civil

Justice between Efficiency and Quality: From Ius Commune to the CEPEJ (Cambridge-Antwerp-Portland, Intersentia,

2008) 249.






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