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WG Independence-Efficiency > Meetings > Würtzburg 2007 > Questionnaire on the Independence and Efficiency of administrative Justice : Italy

Questionnaire on the Independence and Efficiency of administrative Justice : Italy

I./ Personal Independence of the administrative Judge:

1. Indicate the ways in which judges are selected/appointed for/to administrative Justice as well as the terms and nature of the judicial selection/appointment:

1.1. Describe the selection/appointment procedure that is applied in your country 
First and foremost we must say that administrative Justice in Italy is composed of Regional Administrative Tribunals (T.A.R.)- 1st instance- and Council of State – supreme administrative Court.
Regional Administrative Tribunals: all judges are selected by means of a competitive examination. It consists of 4 written tests on juridical topics (one of them being a professional task, i.e. candidates must decide a specific case giving the grounds in detail) and an oral exam. Qualifications are considered. Skills in foreign languages are evaluated on demand.
Council of State:
  ¼ of the judges are selected by competitive examination. It consists of 5 written tests on juridical topics (one of them being a professional task, i.e. candidates must decide a specific case giving the grounds in detail) and an oral exam. Qualifications are considered. Skills in foreign languages are evaluated on demand;
  ¼ of the judges are appointed by the government among professors of law, senior lawyers, State general managers or directors of other public organisations (bodies), senior judges (except for the administrative ones); 
  ½ of the judges come from Regional Administrative Tribunals in seniority order, on demand. It is necessary a positive evaluation on merit by the Council of Presidency for administrative Justice (the independent body that controls the career of administrative judges). 
The term of judicial appointment is for life for all the categories.
1.2. What are the terms of this procedure?
There are no mandatory terms; in fact, the procedure lasts 1 year for the Council of State and 1 ½ year for Regional Administrative Tribunals (because of the higher numbers of participants). 
1.3. Is there specific professional background such as previous work record in the administration or general legal training included?
The admission to the selection requires previous experience as graduated (in law) workers in the public administration or as judges (except for the administrative ones) or as lawyers.
1.4. What are the possible contents examined during this procedure? 
Civil and commercial law, administrative law, taxation law, international law, constitutional law, penal law, civil penal and administrative procedure, community law, economics, public finance and (optional) up to two foreign languages.
1.5. Who meets the decisions in the course of the selection/appointment procedure and who selects and appoints the aforementioned decision –makers?
The decisions are met by a temporary, independent body, whose member are professors and administrative judges. The body is appointed by the President of the Council of State, after hearing the Council of Presidency for administrative Justice. 
1.6. Does the law provide for judicial remedies against decisions concerning appointment/selection?
Yes, decisions concerning appointment/selection are considered as administrative acts and then they may be challenged before the administrative judge.
1.7. Does there exist any difference in the way the selection/appointment of judges of the civil/penal courts takes place?
Yes. The career of the civil/penal judges is completely separated; the competitive exam is different: in particular, it does not include a practice/professional test and no previous work record is required. 
1.8. Is it possible for “external candidates” to be appointed as judges at different court levels and instances? 
Yes. In general, see above under 1.1. In some cases (T.A.R. of Trento and Bolzano and the Council for administrative Justice in Sicily- the latter works as a section of the Council of State) special appointments of “external candidates” (for life) are provided, because these regions have a special statute, according to the Italian Constitution. 
1.9. Are those legal provisions concerning the ways of selection/appointment of judges constitutionally entrenched?
Yes. In general, the Italian Constitution requires that candidates pass a public, official, competitive examination in order to get a post in the public organisations.


2. Describe in brief the conditions of service and tenure (security of tenure, suspension and removal, transfers etc.) of the judges:

2.1. Is the term of judicial appointment for life?
Yes.
2.2. Is it possible to extent the term of service of judges beyond retirement age? In this case who has the power to take the decision?
Yes. The request for extension is made by judges and is not subject to any approval.
2.3. Is it possible to appoint temporary judges?
No.
2.4. Is it possible for the judge to be removed or transferred and under what specific terms?
Yes.
The judge may be transferred on demand; the application form is examined by the Council of Presidency for the administrative Justice as soon as a free work seat is available.
The judge may be transferred officially in case of objective incompatibility with the environment.
The judge may be removed as disciplinary decision. The proceedings must be completed within 200 days.

2.5. Where does the power of removing or transferring judges from one office to another lie? 
See under 2.4.
2.6. Is it possible to transfer between the different divisions and types of courts?
Yes. It is possible to transfer between the different divisions of courts.
2.7. Is it possible to transfer to government administration and back?
Yes. It is possible to transfer judges temporarily to government administration for advisory tasks on approval of the Council of Presidency for administrative Justice.
2.8. Does a transfer to the administration have a career-promoting effect?
No.
2.9. Is incompetence a ground for removal of a judge from the bench?
No.


3. Financial security (salaries, remunerations, pensions etc.)

3.1. Who decides about judges’ salaries?
The law provides for automatic salary increases, calculated on the average salary increases of all public servants.
3.2. In what way and under what conditions are the salaries of judges increased? Are they accompanied by annual cost-of-living adjustments? 
The automatic salary increase (see afore under 3.1.) is accompanied by annual cost-of-living adjustments.
3.3. Is there a need for executive approval or executive decision to initiate the increase?
No.
3.4. Is it possible for the judges to initiate judicial proceedings against the State with regard to their remuneration and which are the competent courts in this case? 
Yes. The competent courts are Regional Administrative Tribunals (T.A.R.)- 1st instance- and the Council of State – supreme administrative Court.
3.5. Is there a uniform salary scheme for all courts, divisions and types?
Yes.


4. Career prospects (promotions etc.)

4.1. Describe briefly the ways in which the promotions of judges are made. What kind of procedures are to be applied in this context?
The promotions of judges are deliberated by the Council of Presidency for administrative Justice; it appreciates above all the seniority and then the quality of service. The exam of the quality of service and of eventual texts on juridical topics or of organizing ability is deeper in the cases of moving of a judge from T.A.R. to the Council of State and of attribution of tasks as president of chamber, president of T.A.R. and president of the Council of State.
A judge of T.A.R. may accede more quickly to the Council of State only through public competitive examination, described under 1.1. 
4.2. Indicate the competent body for the promotions and the criteria applied thereto.
See above under 4.1.
4.3. Are judges of the administrative courts promoted to the Supreme Administrative Court and under what conditions (seniority etc.)?
Yes (see above under 1.1.).
4.4. Can judges accept any government assignment after retirement?
Yes.


5. Standards of conduct (professional and service Code, public activities, law-related activities etc.)

5.1. Can a judge be involved in law-related activities (arbitration, law practice, writing books)?
Yes.
5.2. Can a judge be involved in business activities?
No.
5.3. Is the judge entitled to sideline employment?
No.
5.4. Is there a Code of conduct of judicial behaviour?
No. There is no special, complete “Code” of conduct of judicial behaviour; the rules are deducted from various laws.
5.5. Is there a Commission on Judicial Conduct or any other body to supervise the behaviour of a judge?
Yes, the Council of Presidency for administrative Justice.
5.6. Describe the restrictions - if there are any - on judges’ right to express their views?
Generally speaking judges may not speak about the processes that are pending before them and express their opinions (especially on politics) in a way that could cause doubt about their impartiality.


6. Inspection of judges and disciplinary proceedings

6.1. Who is in charge of the inspection of judges and in what way is this inspection conducted?
The Council of Presidency for administrative Justice is in charge of the inspection (see below on under 6.4.).
The inspection is usually directed (not to a single judge, but) to a Regional Tribunal or a chamber of Council of State for checking their working in general and it consists of visits and auditing.
The investigation on the behaviour and the performance of a single judge follows the rules of the disciplinary proceedings.

6.2. Are there specific criteria for the evaluation of the performance of judges?
Yes. There are specific criteria only for the evaluation of the quantity of work.
6.3. Who holds the legal power to initiate disciplinary proceedings against the judge? 
The Prime Minister (who has never actually initiated it) and the President of the Council of State.

6.4. Who decides the disciplinary tribunal and its composition? Is it permanent or ad hoc?
The Council of Presidency for administrative Justice is the disciplinary tribunal for administrative judges. It is a permanent body and its composition is ruled by law.
It is made up of the President of the Council of State, 4 external members appointed by the Parliament and 10 members elected among the judges.

6.5. Is there a legal remedy against the decisions of the disciplinary body provided for by law?
Yes, disciplinary decisions concerning administrative judges are considered as administrative acts and then may be challenged before the administrative judge.

6.6. Is there a special procedure for investigating and prosecuting a judge?
Yes, but the procedure followed for administrative judges is not very different from the general one for all civil servants.


II./ Functional and Institutional Independence of administrative jurisdiction:

II.a./ General aspects


1. Separation of powers and judicial independence

1.1. Indicate who is responsible for the central administration of administrative jurisdiction
The President of the Council of State under the high supervision of the Prime Minister office.
1.2. Individual and collective independence of the judiciary
Tasks and work seat can be changed only in cases provided for by law and decided by the Council of Presidency for administrative Justice (for example, for disciplinary charge reasons). 
1.3. Is it possible for sanctions (of any kind) to be imposed on a judge based upon the content of his/her decision?
Yes, under some circumstances. The main rule is very general and may be interpreted in several senses. It sounds: “The judge, who fails to do his own duty or behaves, in office or outside, in a way that makes him/her unworthy of trust or of esteem that he/she must be held in, or prejudices the prestige of the judicial body, is subject to the sanctions, provided for by law” 
1.4. Can a judge face disciplinary charges solely on the basis of the substance of his/her ruling? Is this the case when a judge declines to follow a supreme court’s decision?
Yes, if the substance of his/her ruling reveals a not excusable negligence or ignorance and then there is proof that he/she fails to do his/her own duty. A judge runs no risk of disciplinary charges if he/she declines to follow a supreme court’s decision.
1.5. Do you think that accountability of judges threatens judicial independence?
In general I don’t think not, but in concrete the answer depends on the criteria used to estimate a judge’s negligence.
1.6. Can a judge be held liable in civil actions for his/her judicial acts (e.g. be sued for damages for actions taken in his/her judicial capacity)?
Yes, for malice, gross negligence and deny of justice.
1.7. Are judges immune from prosecution in other courts for their judicial acts?
No.
1.8. Can criminal charges be brought against a judge for actions on his/her duties? 
Yes.
1.9. Do judges face sanctions for “decisional conducts”?
Yes (see above under 1.4).


2. Judicial administration at the Court level (division of work among judges and assignment of cases etc.)

2.1. Is the division of work among judges and the assignment of cases to each judge or panel done according to a predetermined rigid plan or is it flexible and may be changed easily?
The division of work among judges and the assignment of cases to each judge are done according to predetermined guide-lines, fixed by the Council of Presidency for administrative Justice, so we have a compromise between rigid methods und flexibility.
2.2. Who is in charge of case assignment? 
The president of TAR or the president of a chamber in the Council of State and in Regional Administrative Tribunals divided into chambers.


3. Self - administration of justice

3.1. Is judicial administration effected through independent judicial self-governance?
Yes.
3.2. Describe briefly how the governing body/committee is elected?
It is made up of the President of the Council of State, 4 external members appointed by the Parliament and 10 members elected among the judges.

3.3. Is there any restriction for the members of the above body to participate in other syndicalistic bodies?
No.


4. Human, financial and material resources necessary for the performance of judicial functions

4.1. Who is responsible for the administrative staff employed in the courts?
The President of the Council of State and the Presidents of Regional Administrative Tribunals (T.A.R.) with the help of General Secretaries who in T.A.R. are not judges, but administrative units.
4.2. Who is competent to make available the necessary funds for the performance of justice?
The Council of Presidency for administrative Justice.
4.3. Who has the power to execute and spend the budgetary allocations?
The President of the Council of State, the Presidents of Regional Administrative Tribunals (T.A.R.), the General Secretaries and other senior servants (Directors).


II.b./ The relation between administrative jurisdiction and other powers:

1. Relations with the executive (the influence of the Administration on the judge etc.)

1.1. Have there been cases of executive pressure on judges in any form?
No.
1.2. Can judges be members of the Government?
Yes.
1.3. Is it allowed for judges to participate in administrative bodies having decisive or consultative competences?
Yes. 
1.4. Do the administrative courts have the power to challenge administrative acts of general character (presidential decrees etc.)?
Yes.


2. Relations with the legislature (retroactive legislative reversals of cases etc.)

2.1. Can the legislature override a decision of a court if they disagree with the way the latter has applied or interpreted a law? 
The legislature can never override a final judgement (res iudicata), but can issue a retroactive law in order to interpret a law already in force, whose meaning is not clear thus giving rise to a contrast of interpretation (these conditions are very largely applied). In this situation the new law influences pending cases but not cases already defined by a final judgement .
2.2. Have there been retroactive legislative reversals of court decisions? 
Yes (see above under 2.1.).

2.3. Has there been legislation abolishing courts with results of statutory removal of judges and if so, how was it received?
No, since the fall of the fascist government and the beginning of the Italian Republic. 
2.4. Pending cases?
Yes (see above under 2.1.).

2.5. Can judges be members of the legislature?
Yes.
2.6. Do the administrative courts have the power to challenge laws?
Yes, but the decision is taken by the Constitutional Court.


3. Interest representation of administrative judges

3.1. Are judges organised in associations for furthering their rights and interests?
Yes.

3.2. Are there separate professional representations for administrative judges, or a joint association of judges?
There is a separate professional representation for administrative judges.
3.3. What are the specific activities of the aforesaid association? Describe them in brief.
It protects the interest of administrative judges in all its aspects (salary and retributions, pensions, career, dignity and independence, benefits) vis-a-vis the Council of Presidency for administrative Justice, the Government and the Parliament. To this purpose it can organise strikes or any demonstration of administrative judges. It also bargains special conditions for the whole category vis-a-vis private entities (for example, banks, insurance and so on).

3.4. Do judges have the right to strike or to hold a demonstration?
Yes.


II.c./ The relation between administrative jurisdiction and the society:

1. The administrative judge and the media scrutiny (the press, the judiciary and the courts, criticism of judicial decisions etc.)

1.1. Is criticism of judges, judicial decisions and judicial conduct in the press existent, frequent, rare? What are the relevant grounds for this? Could you give major examples?
Criticism of judges, judicial decisions and judicial conduct in the press is frequent for penal judges, but rare for administrative judges and it mainly concerns delays in process and sometimes the general possibility for an administrative judge to be an advisor for the Government.
1.2. Are trials open to T.V.?
Virtually yes. In fact, only crime processes have been broadcast.

1.3. Do you think that press reporting and commenting on judges, courts, judicial decisions and matters pending before the courts poses a challenge to judicial independence?
No.


2. The administrative judge and the public opinion

2.1. Do you think that a judge’s engagement in politics or speaking his/her mind in favour of a political party compromises the public confidence in the judiciary?
Yes.
2.2. Are there institutions that favour strong public opinion in defence of the independence of the judiciary?
Yes, but they are mainly concerned with penal judges.


3. Judges and politics

3.1. Is it allowed for judges to become member of political parties?
No.
3.2. Are there any major restrictions for judges with regard to their political activities? What are the consequences in case of breach?
No. Anyway he/she may not express his/her opinions in a way that could cause doubt about his/her impartiality and, in general, can “make him/her unworthy of trust or of esteem that he/she must be held in, or prejudices the prestige of the judicial body” (so sounds the very general rule on disciplinary charge). In these cases, he/she is subject to sanctions.

3.3. Are there any other restrictions for judges as far as their public activity is concerned?
No.

3.4. Have there been cases where political leaders attacked the judges and criticised their decisions?
Yes, but only concerning criminal cases.


III./ Efficiency in the internal organisation of an administrative jurisdiction.

1) The judge and his work

1.1 Describe briefly the kind of the initial training and the qualifications of an administrative judge prescribed by law and his further education and/or formation, inter alia in European law, emphasizing more particularly the aspects which might help the judge to improve the efficiency of administrative justice.
The admission to the competitive exam for administrative judges requires a previous experience as a graduated (in law) worker in the administration or a (except for administrative ones) judge or a lawyer.
In the first period of service an administrative judge must attend a course (on main topics, included European law), usually for a week. In the first three months he/she is followed and helped by a tutor, mostly by the president of his/her chamber in reading trial acts and in making-up decisions.

1.2 Do you think that a higher salary paid to the judge and, more specifically, other (material) advantages which may be granted to him in consideration of the output might help to improve the efficiency of administrative justice?
No.

1.3 Please indicate the number of administrative judges in your country and compare it to the population being under their jurisdiction (an average number can be indicated per country).
The number of administrative judges in my country amounts to 445; by comparing it to the population being under their jurisdiction (58.462.375 inhabitants), the resulting average number is 1 administrative jugde/131.376 inhabitants.

1.4 Please indicate the number of legal or other assistants (including clerks, secretaries …) working for the administrative jurisdictions, indicating more particularly the average number per judge working at an administrative court.
There are no legal assistants, but only clerks and secretaries in offices.
The number of the whole staff (including clerks, secretaries …) working for the administrative jurisdictions amounts to 897; therefore the resulting average number is 1 administrative judge/2 assistants.

.
1.5 Describe briefly the working conditions of an administrative judge in your country, emphasizing more particularly the technical means which are at his/her disposal, as well as legal or other assistants helping him/her in his/her duties, his/her access to libraries and data bases, access to internet and so on…
There are no legal assistants, but only clerks and secretaries who work in the offices and have no specific task in helping an administrative judge individually.
The technical means at the disposal of an administrative judge are:
 a personal computer (usually at home), connected to the “administrative justice”(“giustizia amministrativa”) intranet and internet;
 a portable personal computer;
 a handy, that allows the connection of the portable PC to the intranet and the internet, too.
The intranet has a complex structure. It contains
 an E-mail connection among all offices and all judges;
 a web-site which makes it possible (also for the public) to
• check the situation of a trial and the dates of hearings;
• read all the decisions of the Council of State and Regional Administrative Tribunals since 2000 and laws concerning administrative jurisdiction;
• read the records of the Council of Presidency for administrative Justice;
 some libraries and data bases with complete and up-to-dated collection of jurisprudence and laws, with juridical articles and a juridical encyclopaedia;
 many links (for examples, to the EU, to the Council of Europe, to the Italian Constitutional Court, to the library of the Italian Court of Cassation).
In some Regional Administrative Tribunals a system that converts all trial paper documents (including judgements and decisions) into data processing ones (project called “data processing trial”) is being experimented at present.

1.6 Describe briefly the internal working regulations of an administrative court and more particularly the way in which the work is distributed among the judges, the person in charge of the distribution of the work to be done by the respective judge and of the control of his/her work, indicating inter alia the criteria according to which the way of distribution is decided as well as the criteria according to which the work of the administrative judge is controlled, as well as the possible sanctions which may be taken against the judge who does not fulfil the legal or internal requirements concerning the quality of his/her work. Describe in this context internal control procedures (if there are any).

The division of work among judges and the assignment of cases to each judge are done according to predetermined guide-lines, fixed by the Council of Presidency for administrative Justice. The guide-lines tend to assign the same number of cases and all in all cases of same complexity to each judge.
The president of TAR or the president of a chamber in the Council of State and in Regional Administrative Tribunals divided into chambers are in charge of case assignment.
The work of the administrative judge is controlled by the president of TAR or the president of a chamber in the Council of State and in Regional Administrative Tribunals divided into chambers. 
When a judge does not fulfil the requirements concerning essentially the quantity and the time of his/her work in a conspicuous and systematic way he undergoes a disciplinary procedure.


2) The jurisdictional procedures

2.1 Describe briefly the access to administrative justice, indicating more particularly whether the complaint or file has to be introduced by a lawyer or any other professional and the conditions under which the plaintiffs may have access to legal assistance. Can you also indicate whether the procedures are accomplished only on a written basis or whether also oral hearings take place, indicating in which cases such oral hearings are organised and the persons who, at these occasions, are allowed to make oral submissions to the court.
The complaint has to be introduced by a lawyer (except in some special procedures, like the action for obtaining documentation from administration). However the plaintiff may have access to legal assistance if his annual income does not exceed euro 9.723,84 and his request (examined by a body composed by judges and lawyers) explains the reasons on which the complaint is based and, at a first scrutiny, these seem well-grounded (sound) enough. The procedures are accomplished mainly on a written basis, but also oral hearings take place, especially to allow lawyers to illustrate their arguments before the decision. Witnesses or experts may be heard although it rarely occurs.

2.2 Describe briefly the different types of procedures which can be introduced at an administrative court, insisting inter alia on the differences existing between those procedures.
The main procedure tends to annul an administrative act; other actions bring to condemn the administration to pay a sum (usually in favour of a public servant; this procedure is similar to an ordinary, civil one), bring to condemn the administration to issue an act (for example, the administration gave no answer to a private citizen who had filed a formal request according to the law); bring to condemn to give copies of documentation kept in the administrations’ office.
A special action is the enforcement one (see below under 2.8).
In all the aforesaid cases the judge may condemn the administration for damages.

2.3 Describe briefly the different steps of the procedures to be followed at an administrative court of your country, starting with the date the file is introduced until the date the judgment is pronounced, insisting more particularly on the deadlines which may have to be respected by the parties in order to introduce written notices, briefs, pleadings, statements as well as on the deadlines to be respected by the judge to pronounce the judgment.
Only the procedure for annulment of an administrative act (the typical commonest one) will be briefly described.
A plaintiff (through a lawyer) must serve his/her claim to the administration and (eventually) to private people, who have interest to maintain the challenged act, within 60 days from the date of individual communication of the act (to him/her) or from the legal knowledge of this one (e.g. from the date of publication in the official journal). He must file the served claim not later than the 30 following days.
The President establishes/fixes the date of public hearing that can not be held earlier than 40 days.
The parties may produce documentation (not later than 20 days before the public hearing) and final written notices (not later than 10 days before the public hearing).
Immediately after the public hearing the dispute is discussed and decided by the chamber and the decision (with all its grounds) should be made official, through its publication, within the following 45 days.
In some cases (for examples, for public procurement) the deadlines- except for the term for serving claims – are halved.
Since 2000 some rules have been introduced to accelerate procedures. Among these one of the most effective is the possibility to decide immediately (by means of a concise explanation of the pertaining reasons) the dispute, in occasion of the discussion on interim measures. Such a possibility is allowed when the questions involved are very easy to solve or have already been solved in univocal way by jurisprudence or concern mere procedural aspects (for example, the claim was untimely, the administration has meanwhile revoked the challenged act or the plaintiff has otherwise no longer any interest in a decision of the case).

2.4 Describe briefly the internal organisation of an administrative court, and indicate whether the judges are working in chambers or if they are acting as individual judges, as well as the criteria according to which a case is dealt with either by a chamber or by an individual judge.
Regional Administrative Tribunals -T.A.R. -are composed of one or more chambers; the Council of State has 3 chambers and a great chamber, that decide disputes (the other units have advisory tasks).
A chamber of a T.A.R. works with 3 judges; a chamber of the Council of State works with 5 judges and the great chambers (“Adunanza plenaria”) with 13 judges, including the president of the Council of State.

2.5 Which kind of procedures do apply in case an urgent matter of any kind is introduced with an administrative court? Indicate also what kind of decisions may be taken by the judge dealing with this kind of urgent matters.
What kind of interim measures or measures of suspensive effect may be granted by 
your Court upon the receipt of a complaint? 
a) suspension of the administrative act complained against, 
aa) becomes effective when served to the parties, 
bb) may also have retroactive effect, 
b) my Court may order any interim measure deemed necessary when the interests 
of justice so require.

Our Court can grant both
a) The suspension of the administrative act complained against, that (bb) have retroactive effect,
and b) a Court may order any interim measure deemed necessary when the interests of justice so require.

What are the legal criteria for a decision to give an order of suspensive effect or 
order an interim measure?
a) Does the prospective outcome of the proceedings have any relevance? 
b) Please give a short description of the content of the legal provisions concerned.
The legal criteria for a decision to give an order of suspensive effect or to order an interim measure can be summarized in the Latin expressions “fumus boni iuris” and “periculum in mora”. Therefore 
a) the prospective outcome of the proceedings has decisive relevance.
b) the legal provisions are included in the law on Regional Administrative Tribunals (T.A.R.), issued in 1971 and amended in 2000. It sounds approximately as follows:
If the plaintiff alleges that the execution of the challenged act causes him/her a heavy and irreparable damage, while waiting for a decision, and requests interim measures (possibly including an order to the administration to pay a sum of money), the judge gives the order of suspensive effect or orders an interim measure that in the meantime better ensures effectiveness to the final decision. When these measures may cause irreversible effects, the judge can order the plaintiff to give a caution money.
The order must be grounded having considered the prospective positive outcome of the proceeding and the heavy and irreparable damage related to the execution of the challenged administrative act, in comparison with the public interest involved in the case .
The order is usually issued by a chamber. In case of extreme urgency, an interim measure is taken by the President of the court, as soon as the plaintiff files his/her claim, and later the chamber approves the measure (or does not).
For controversies concerning procurement special rules are provided for by an Italian law enacted on 12th April 2006, implementing Directive 2004/17/EC of the European Parliament and of the Council of 31 March 2004 - coordinating the procurement procedures of entities operating in the water, energy, transport and postal services sectors – and Directive 2004/18/EC of the European Parliament and of the Council of 31 March 2004 - on the coordination of procedures for the award of public works contracts, public supply contracts and public service contracts-.
Herein in exceptionally heavy and urgent cases, the president of court may take an interim measure (for 60 days), before the plaintiff files his/her claim (measure “ante causam”).

2.6 Indicate the types of control the administrative court may exercise over the activities of the administration or over the decisions taken by it: is it a control only of the legality of its decisions or can the judge also control whether the discretion was used by the authority in the spirit of the law? Is the judge allowed to take a decision instead of the administrative authority? Do there exist other types of control procedures?
The judge can also verify whether the discretion was used by the authority in adherence with the spirit of the law (control involving “détournement de povoir” and “excès de povoir”).
The judge is not allowed to take a decision in the place of the administrative authority in the ordinary procedure, but only in the special one for the enforcement of the judgment (see below under 2.8).
Other kinds of control by an administrative judge are not contemplated.

2.7 Indicate the delays of the procedures introduced with an administrative court, starting from the date of introduction of a complaint until the date the judgment is pronounced (average delays).
The data are not available.

Is there any remedy against undue length of the proceedings for the parties of the 
proceeding before courts? Is this
a) a remedy provided by law (please give a quotation of the legal provision) 
b) a remedy of informal character (please give a short indication of its content).
What may be the result of such a remedy?
a) actual acceleration of an individual proceeding
b) payment of just satisfaction 
c) reduction of a penalty imposed 
d) disciplinary measures against individual judges
Which authority is responsible to deal with such a remedy? 
a) the president of the Court
b) a supervising judicial body 
c) an administrative authority
A first remedy against undue length of the proceedings is a compensation for damages unduly suffered, provided for by law (24th March 2001, n° 89). It may result in the payment of a just satisfaction. The dispute is decided by the civil judge (Appeal Court).
Another remedy is the request to respect terms and tends to the actual acceleration of the single proceeding. The president of the Court is entitled to deal with it.
In case of negligence, undue length of the proceedings can bring to disciplinary measures against individual judges.

2.8 Which kind of means are at the disposal of the administrative judge (or the parties) in order to provide for a correct execution (enforcement) of the judgment. Does the judge have the possibility to give injunctions to the administration? Do there exist specific procedures which the parties may use in case the administration does not voluntarily execute the judgments?
The specific procedure for the enforcement of the judgments is called “giudizio di ottemperanza” and is similar to the German “Verpflichtungsklage”. Herein the judge is allowed to give injunctions to the administration and take a decision in the place of the administrative authority (through a delegate, too), in case the administration should not voluntarily execute the judgments.

2.9 Which kind of new technologies are at the disposal of the administrative judge and do the procedures to be followed at the administrative court provide for the possibility to use standard forms or electronic transmittal techniques (for example, are the parties allowed to introduce the briefs by way of mail or other electronic transmittal systems) ?
The new technologies at the disposal of an administrative judge are
  a personal computer (usually at home), connected to the “administrative justice”(“giustizia amministrativa”) intranet and the internet;
  a portable personal computer;
  a handy, that allows the connection of the portable PC to the intranet and the internet, too.
The intranet has a complex structure. It contains
  an E-mail connection among all offices and all judges;
  a web-site which makes it possible (also for the public) to: 
• check the situation of a trial and the dates of hearings;
• read all the decisions of the Council of State and Regional Administrative Tribunals since 2000 and laws concerning administrative jurisdiction;
• read the records of the Council of Presidency for administrative Justice;
  some libraries and data bases with complete and up-to-date collection of jurisprudence and laws, with juridical articles and a juridical encyclopaedia;
  many links (for examples, to the EU, to the Council of Europe, to the Italian Constitutional Court, to the library of the Italian Court of Cassation).
In some Regional Administrative Tribunals a system that converts all trial paper documents (including judgements and decisions) into data processing ones (project called “data processing trial”) is being experimented at present. 
At present the parties are allowed to introduce briefs by way of fax, according to law; a transmission by mail is possible in some Regional Administrative Tribunals on the basis of a previous mutual consent between the Tribunal and the lawyer.

2.10 Do the administrative courts in your country possess central computer systems to which all judges are linked, and comprising inter alia data bases, general information, laws, procedural acts, access to electronic files and so on.

Yes. The Italian administrative courts and judges are all connected to an intranet, that has a complex structure, described above under 2.9.

2.11 Indicate whether you think that the facilities used by the administrative courts and the means put at the disposal of these courts by the State are appropriate and, if this is not the case, indicate the problems you have noted in this context and the possibilities to remedy.
The facilities placed at the disposal of these courts by the State are certainly appropriate and are being more and more improved. Maybe judges (above all the oldest ones) should undergo a longer training in order to use these means in a more profitable way.

2.12 Indicate the total amount of money spent by the State to ensure the functioning of administrative justice, compared to the total amount of the State budget.

The total amount of money spent by the State to ensure the functioning of administrative justice is euro 154.185.537; by comparing it to the total amount of the State budget (euro 484.340.563.987) it results that the Italian State spends only 0,032 % of its budget for administrative justice (Update: 2005).
Last year the expenditure for administrative justice has increased to about euro 190.000.000.

2.13 Do there exist alternatives to the contentious proceedings, for example mediation, arbitration procedure and so on in your country?

This kind of alternatives (ADR) exists only for controversies concerning procurement. They are now specifically ruled by an Italian law enacted on 12th April 2006, implementing Directive 2004/17/EC of the European Parliament and of the Council of 31 March 2004 –coordinating the procurement procedures of entities operating in the water, energy, transport and postal services sectors – and Directive 2004/18/EC of the European Parliament and of the Council of 31 March 2004 –on the coordination of procedures for the award of public works contracts, public supply contracts and public service contracts-.
In fact, arbitration procedures are commonly used, while the recourse to conciliation procedures and settlements is rare.

2.14 Which kind of effective legal remedies can be used against a judgment of an administrative court of first instance?

It is always allowed to challenge (appeal) a judgment of an administrative court of first instance before the Council of State.


IV./ Efficiency in the relations of an administrative jurisdiction towards third parties

1) Access by the public or the parties to the information held by the administrative courts

1.1 Do the administrative courts in your country have a person in charge of the relations with the press (press speaker)?
There is no specific provision on this matter. The Presidents of Regional Administrative Tribunal are usually in charge of the public relations concerning the affairs of the single court.

1.2 Do the administrative courts in your country prepare annual reports about their activities? Is this report available to the public? To whom/ or to which body this report is it addressed?
Yes. Following art. 31 of Law 27.4.1982 n° 186, regulating the administrative justice system, the Prime Minister exercises the high supervision on all the offices and the judges and every year he refers to the Parliament presenting a report on the state of the administrative Justice and of tasks conferred in accordance with the provisions of the same law. The report is made up by the Council of State.
Apart from that, it is worth mentioning that a report concerning the activity of the court during the previous year is prepared every year by the President of the Council of State and by the Presidents of Regional Administrative Tribunals, each within his competence, and is read in public on the occasion of the opening ceremony of the judiciary year at the presence of the authorities attending the ceremony.
The reports are not addressed to any particular body but are made public through their reading in public and are often published on the intranet web-site of the administrative justice, accessible to the public .
1.3 Does there exist a possibility to access by internet or by any other means to the judgments pronounced by the administrative courts and other documents which might be relevant for the public/parties?
Yes. The intranet web-site of the administrative justice, which is accessible also to the public, makes it possible, inter alia, to check the situation of a trial and the dates of hearings as well as to read all the decisions of Council of State and of Regional Administrative Tribunals since 2000.
1.4 Do the parties of the case pending at an administrative court have the possibility to get information, by electronic or other means, about their file and the state of the proceedings
See above under 1.3.
1.5 Do the administrative courts of your country have the possibility to exchange information or experience with other national or international courts or with courts situated in other countries and, if this is the case, could you give more information about this kind of exchanges? 
As far as we know, there is no institutional site for the exchange of information or experience with international courts or with courts located in other countries at present. 
The exchange of information with other national courts is not formally provided for; in fact it is practised mainly at the level of professional representations of magistrates in order to discuss common topics on status, career and financial items concerning the different kinds of judges.


2) Control of the activities of the administrative courts

2.1 Do the administrative courts prepare statistics about affairs settled during the judicial year, about the stock of affairs pending and about the number of affairs dealt with by individual judges?
Yes. Statistics are a part of the report prepared each year on the affairs entered, pending, settled during the previous year.
2.2 Do the administrative courts possess electronic systems to ensure the follow-up of the affairs pending (e.g. electronic file system…)?
Yes. Administrative courts are equipped with personal computers connected to the “administrative justice” intranet; the intranet has a complex structure containing, inter alia, a web-site which makes it possible to check the situation of a trial, the dates of hearings and the briefs and documents deposited by the parties.
Moreover, administrative clerks are in charge of electronic file systems in order to manage and check the follow-up of the affairs pending. 
2.3 In your country, are there mutual or internal evaluations (on periodical basis) of the quantity and quality of the work to be done by the court? Which is the body which is competent to prepare this kind of evaluations, are they done by the court itself or by any other bodies, authorities or courts? Do there exist control procedures of the judicial work done by the administrative judges and, if this is the case, by which kind of authorities (national or international) are these procedures accomplished?
The Council of Presidency for administrative Justice predetermines guide-lines only on the quantity of work to be done by the administrative judges on a monthly basis and on the time of delivery.
The Council of Presidency supervises the accomplishment of such guide-lines. 
2.4 Which kind of sanctions may be taken against individual judges in case of misbehaviour or in case the work to be done by judges has not been delivered in certain delays
The main rule is very general and may be interpreted in several senses. It sounds: “The judge, who fails to do his own duty or behaves, in office or outside, in a way that makes him/her unworthy of trust or of esteem that he/she must be held in, or prejudices the prestige of the judicial body, is subject to the sanctions, provided for by law” 
The investigation on the behaviour and the performance of a single judge follows the rules of the disciplinary proceedings and, following art. 32 of Law 27.4.1982 n° 186, regulating the administrative justice system, rules provided for civil and penal judges are applied to administrative judges as far as disciplinary procedures and sanctions.
So when a judge does not behave in a proper way or does not fulfil the requirements concerning the quantity of work to be done and the time of delivery for his/her decisions in a conspicuous and systematic way, he undergoes a disciplinary proceeding.

2.5 Do there exist compensation procedures in case of errors committed by the court or individual judges or in case of delays in the proceedings? If this is the case, could you briefly describe the kind of compensation procedures which may be used by the victims of such errors or delays.
Law 24th March 2001, n° 89 provides for a remedy in the form of a fair compensation for property or non property damages unduly suffered as a result of the violation of the reasonable length of the proceedings. It may result in the payment of a just satisfaction. The dispute is decided by the civil judge (Appeal Court) and, for administrative proceedings, the complaint has to be introduced against the Prime Minister. 
Generally speaking, the civil responsibility of judges is ruled by law 13.4.1988, n° 117; a judge can be sued for unjust damages caused in the exercise of his/her functions or by denying justice as a result of malice, gross negligence or deny of justice. The complaint has to be introduced against the Prime Minister.

2.6 Do there exist possibilities for the public or the parties to introduce complaints against the way the administrative courts work
The parties can introduce a complaint to the Council of Presidency for administrative Justice, to the President of the Council of State or to the Prime Minister in order to get a disciplinary proceeding initiated or, more generally, so that measures for improving the organisation can be introduced.

2.7 Do there exist studies about the feed-back of “customers” (in a broad sense of meaning) of administrative justice, on the bases of inquiries made among the public, the parties or their lawyers, about the functioning of the court?
No, to the best of our knowledge.

V./ Conclusion

1. Could you indicate, according to your opinion, which are the factors (concerning organisation or rules of process) that cause malfunctions in the administrative judicial system in your country? 
First of all we think that one of the main factors inflating the mass of our cases can be identified with the great number of confusing laws existing in the administrative matter.
Therefore organizational efforts should tend to collect systematically cases, in order to solve interpretative questions in a more certain and coherent way.
To this purpose the data processing means could play a relevant role in supporting the preliminary activities of selecting and collecting cases centred on similar legal topics and , in a following stage, to create and maintain a sure and solid trace - despite the different geographical location of the judges and the lapse of time - of the univocal solution tendentially given to the various legal topics.
Apart from that the problem of malfunctioning in the administrative judicial system in Italy is also connected to the shortage of administrative judges and clerks (in proportion to pending cases).

2. Could you indicate which, in your opinion, might be possible remedies?
An increase in the numbers of judges and clerks depends on State financial resources, that are not available for the administrative justice at this very moment.
Anyway a practicable remedy would be the increasing use of data processing means in trials.
Italian administrative judges are all connected through an intranet system, that has a complex structure. It contains
  an E-mail connection among all offices and all judges;
  a web-site which makes it possible (also for the public) to 
• check the situation of a trial and the dates of hearings;
• read all the decisions of the Council of State and Regional Administrative Tribunals since 2000 and laws concerning administrative jurisdiction;
• read the records of the Council of Presidency for administrative Justice;
  some libraries and data bases with complete and up-to-date collection of jurisprudence and laws, with juridical articles and a juridical encyclopaedia;
  many links (for examples, to the EU, to the Council of Europe, to the Italian Constitutional Court, to the library to the Italian Court of Cassation).
In some Regional Administrative Tribunals a system that converts all trial paper documents (including judgements and decisions) into data processing ones (project called “data processing trial”) is being experimented at present. 
At present the parties are allowed to introduce briefs by way of fax, according to law; in some Regional Administrative Tribunals a transmission by mail is possible on the basis of a previous mutual consent between the Tribunal and the lawyer.


3. Have you noted whether effective measures have been introduced in recent times to improve the system in your country?

Since 2000 some rules have been introduced to accelerate procedures. Among these one of the most effective is the possibility to decide immediately (by means of a concise explanation of the pertaining reasons) the dispute, in occasion of the discussion on interim measures. Such a possibility is allowed when the questions involved are very easy to solve or have already been solved in a univocal way by jurisprudence or concern mere procedural aspects (for example, the claim was untimely, the administration has meanwhile revoked the challenged act or the plaintiff has otherwise no longer any interest in a decision of the case). 
In many courts the decisions’ number has highly increased and the annual ratio between decisions and new filed claims is more than 3 to 1.
The use of data processing means and the internet, as described above, have brought practical positive effects.