Civil proceedings reform: first reflections on the expected outcome
On January 23, 2019, during the giving of the Ministry of Justice’s annual report, an announcement was made: the current Minister of Justice declared an intention to submit a draft Bill on civil process reform. The intent of the Bill is to simplify and accelerate civil proceedings; in doing so, the reform aims to intervene on both the in-court and out-of-court levels. Should the draft Bill become law, several provisions for civil proceedings will change, and this will possibly have an impact on the efficiency of state court proceedings.

1. In-Court Procedures

Based on declarations made, there are several possible novelties in regard to in-court procedures. First, the Bill would reduce the time schedule for proceedings that are being handled by one judge (as opposed to matters being handled by a Tribunal of three judges), in an attempt to offer a swifter and more efficient mechanism. It is, however, arguable whether this is the best way to achieve this result: at the present time, what bogs down civil proceedings the most is a lack of administrative organization, and cutting procedural deadlines down might help to solve this issue, but seems to be insufficient. Second, the use of electronic means would be enhanced, especially for cases that are to be resolved by a “Giudice di pace” (Justice of the Peace). Finally, Second-Instance claims would no longer have to pass a preliminary verification of their admissibility, since the case’s merits will be directly addressed. On the one hand, under the current provisions, the early dismissal of an appeal was a means by which to reduce the number of cases that are submitted to Court of Appeal examination on their merits. On the other hand, since the introduction of this tool in 2012[1], the Courts of Appeal have not used it very often.  It is surely true that the so-called “filter” did not prove to be an effective tool to deflate the number of appeal proceedings. However, it is doubtful that the proposed novelty can help to shorten the duration of the appeal proceedings.

2. Out-Of-Court Procedures

According to the Ministry’s statements, as far as out-of-court procedures are concerned, the reform would eliminate compulsory mediation for cases in which it has been proven to be an unsuccessful remedy: financial and banking cases, and healthcare disputes. In its place, an attempt at assisted negotiation would be introduced.

In addition to this, a so-called “avvocato istruttore” (i.e., an investigating counsel), would be introduced in relation to this remedy. The name comes from the fact that the counsel would, basically, be a substitute for investigating judge in the collection, as evidence, of third parties’ oral statements and the opposing parties’ written statements, and this is evidence which might be admissible to the proceedings. Evidence gathered in this way would, then, be evaluated directly by the judge on its merits. The judge will, however, retain the power to verify it. Such a procedure is very likely to bring advantages: at the state of the art, the gathering of evidence is a particularly cumbersome phase of civil proceedings, whose simplification would benefit the proceedings as a whole, and that would allow judges to focus on selected aspects of each case. On a less positive note, however, some have argued that the institution of the “avvocato istruttore” would be against Art. 111 of the Italian Constitution, which grants the impartiality of the judiciary body: judges might be influenced by counsels’ activity, even though they would retain the above-mentioned power of verification.

3. Final Remarks

In conclusion, it is safe to assume that the reform would only provide for an increase in the efficiency of civil proceedings, if it were to manage to address the civil procedural system as a whole: reducing deadlines, as much as allowing counsels to gather evidence, might offer solutions to some of the most critical aspects of civil proceedings. The Italian “Consiglio dei Ministri” (Council of Ministers) has already approved the draft Bill. This means that if the Italian Parliament ratifies it, the Bill could become law by December 2020, as envisaged by the Ministry of Justice.

 


[1] The tool was introduced by Section 54 of the Law Decree 83/2012, which was converted into Law 134/2012.

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