Questionnaire - Italy
- I t a l y -
Questions
1. The proportion and the number of cases in the administrative courts who have been waiting longer than the time limits set down by the European Court on Human Rights.
According to an internal study about 480.000 cases (out of 650.00 pending ones) have been waiting longer than 5 before the Regional Administrative Tribunals .)The data is not available for the Council of State.
Anyway the claims, that were filed in the last 3-4 years, have been decided mostly in 2-3 years; especially the law considers urgent some kinds of cases (for examples, disputes on public procurement) that follow an accelerated procedure.
In other fields, however, trials last much longer.
The causes of delay
2. Is the number of cases judged by the administrative courts increasing each year ? If, yes what is the evolution during the past years? For the first instance, the courts of appeal, the supreme court?
No, because some kinds of administrative cases has been given to the civil judges by law and the (state) fees for accessing to justice have been increasing in the last years.3. Lack of resources at the courts, shortage of judges.
3.1. What is the number of the administrative judges in your country and the number of cases registered each year?The administrative judges in my country are in all 443; in 2008, 56.716 cases were registered at first instance (Regional Administrative Tribunals -T.A.R.) and 7909 ones at the Council of State – supreme administrative Court (including the Council for the Administrative Justice in the Region Sicily) .
3.2. The number of judges is increasing or not ?
Yes, but the increase in number is slowly and few.
3.3. Is there inadequate support staff? The judges have assistants or not?
The support staff is inadequate for quantity and quality. 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 about 900; therefore the resulting average number is 1 administrative judge/2 clerks.
3.4. Are judges obliged to deal with things that are not really judicial matters, and that other personnel could do instead?
No, except the Presidents of the Regional Administrative Tribunals and the President of the Council of State, who have obviously organisation tasks, too.
4. An uneven geographical distribution of courts within the country
In your country do some courts have too much workload and others not, due to demographical changes or other evolutions?Actually in my country some courts have too much workload and others not. The Regional Administrative Tribunals of Lazio (Rome) is in a special condition. It receives twice as many claims as the other Tribunal, because it is competent for the decision of the central administrative bodies and agencies. The different workload is not due to demographical changes or other evolutions, but to an underestimation of the number of cases in future and of the need of judges and support staff.
This mistake comes from the law 6th December 1971 n° 1034, that has established the Regional Administrative Tribunals.
5. The organisation of the courts
5.1. The proportion of single judges and collegial judges. Is judging in chambers at first instance regarding as a source of delay? (It has been judged as a source of delay by the Court on Human Rights).Administrative justice in Italy is exclusively organized in colleges. There were proposals for introducing decisions of a single judge, above all, of easier or older cases, but the idea had no effect, because it is not clear the relationship between advantages (single judge can perhaps work faster) and disadvantages (the single judge should tackle alone very difficult questions eventually with an increase of different interpretation of the administrative laws).
5.2. Is there a specialisation of courts or of judges in your country ? Is it a way of avoiding delays?
In general, in the most important Regional Administrative Tribunals and in the Council of State every chamber is occupied with different kinds of cases, but the judges must generally changed the chamber where they work every 5 years (10 years at the Council of State). In this way there are no specialised judges.
Mostly we think that a specialisation cannot help avoiding delays in a legal system like the Italian one where the laws frequently change and in this situation it is better that the administrative judges have a wide view of the rights in continuous evolution.
6. Inadequate procedural rules.
6.1. Are the procedural rules themselves creating delays, for instance by giving the parties too much time to answer?We don’t think so.
6.2. Oral hearings - Are the proceedings in the administrative courts mainly in writing (percentage)? If there are possibilities for oral hearings, are these hearings, in your opinion, too many or too few? Has your country been criticized by the European Court of Human Rights for not holding oral hearings? What is happening in oral hearings (are they prepondaretly devoted to take evidence (witnesses and experts) or to the question of law?
The procedures are accomplished mainly on a written basis, but also oral hearings take place (usually only once, before the decision), especially to allow lawyers to illustrate their arguments before the decision. Witnesses or experts may be heard although it rarely occurs.
6.3. In order to accelerate proceedings, do you think that the using of witnesses and experts ought to be encouraged? Are witnesses heard by the courts themselves or by the administration during the previous administrative procedure? Does the court nominate experts of its own or does he usually just refer to the expertises ordered by the administration? Which kind of experts does the administration use (civil servants who are employees of the administration or independent experts)? Which kind of experts are nominated by the court? Who has to cover the costs of all these experts? Are there rulings concerning recovery of these costs if the administration or the party wins the case? Can such costs be covered for parties who enjoy themselves of legal aid.
We think that the increasing using of witnesses and experts could not accelerate proceedings.
Witnesses are heard by the courts themselves.
The court can nominate experts of its own and can choose between specialized civil servants or independent experts.
Architectures and engineers (e.g., for cases concerning country plans or building permission), business/fiscal consultants, doctors (for professional damages to civil servants) are more often nominated by the court.
In general the costs of all these experts are immediately covered by the plaintiff. In the final decision the party that loses the case is condemned to pay definitively or to recover these costs.
Yes, such costs can be covered for parties who are entitled to legal aid.
6.4. Appeal - Is leave to appeal required to enable a court of appeal to consider a case? If not, do you think there ought to be?
One is always allowed to challenge (appeal) a judgment of an administrative court of first instance before the Council of State. A special leave could not be useful because only 2% judgments of the Regional Administrative Tribunals is appealed before the Council of State.
6.5. What kinds of restrictions of judicial review are existing : a./ between the challenged decision of the administration and the first level of administrative jurisdiction? b./ between the different levels of the lawsuit within the administrative justice?
a. The administrative judge controls not only the legality of the challenged decision of the administration, but also verifies whether the discretion used by the authority is in adherence with the spirit of the law (control involving “détournement de povoir” and “excès de povoir”).
b. There are no different powers in the judicial review between the different levels of the lawsuit within the administrative justice.
6.6. What changes in procedural rules may, in your opinion, help accelerating procedures? In particular, what could be a court’s reaction if witnesses (also those who live abroad) do not appear before court or if experts are in delay to deliver their expertise.
The problems of the Italian administrative justice are structural. The mass of pending cases depends first of all on 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.
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).
Therefore many repute useful the introduction of more alternative disputes resolutions (in Italy in fact, arbitration procedures are commonly used for controversies concerning public procurement, while the recourse to conciliation procedures and settlements is rare).
At present we believe that changes in procedural rules cannot help accelerating procedures.
Anyway, in Italy are already in force since 2000 some effective rules for this purpose. 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).
Another existing mean consists in the automatic extinction of the trials, which have been pending for more than 5 years. These old claims are decided only if one party declares to have still interest in the decision.
The use of data processing means and the internet, as described above, have brought practical positive effects.
Perhaps it would necessary to connect more strictly the inactivity of the parties to the extinction of the trial.
7. Goals set up by the Government or administrative authorities or stated by law
7.1. Has your government set up specific goals for how fast the administrative cases should be dealt with (before the administration and before administrative jurisdiction)?Before the administration: law 7th August 1980 (law on the administrative proceeding) fixes the general time limit for the case that should be dealt with; the single administrative bodies can specify the terms with their own official regulations. When adminstration gives no answer to a private citizen, who had filed a formal request according to the laws, after the expiry of the fixed term, the plaintiff has a special lawsuit, that may bring to condemn the administration to issue an act.
Before administrative jurisdiction: the government has no direct organisation powers on administrative justice.
However specific goals of this kind are not set up at all.
There are other measures:
1) some cases (for example, controversies concerning procurement or elections) are considered urgent by law and therefore special rules are provided for; in these cases, the deadlines for the term for serving claims, for filing the served claims, for date of public hearing, for the production of documentation and of final written notices are shortened;
2) vis-à-vis the administrative judges, 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.
7.2. Are there time limit rules laid down by law for certain cases? Could you enumerate the subjects? The custody of mentally ill, children, drug or alcohol misuses, immigration cases.
No there are no final term for the whole procedures; only deadlines for the single operations in the trial, included the terms for the judge who will write the judgement. In some fields the law provides that the case has to be treated very quickly (for instance, request of knowing or copying administrative documents, enforcement of the judgements, disputes on public procurement and so on).
7.3. If yes, what happens when the time limits are not followed?
In case of negligence, undue length of the proceedings can bring to disciplinary measures against individual judges.
The possible tensions with fundamental rights.
This part of the topic can be connected to the aforementioned general issues of CJ-S-JUD, “The balance between independence and effectiveness” and “The responsibilities of judges in the terms of the independence of judges”. In some countries, the government has taken measures in order to accelerate the procedures, which interferes with the independence of judges.
8. A new system of remuneration partly based on individual salaries for judges : look further questions number 11 to 13.
9. The matter of the responsibilities of the president of the court (or other entities within the courts).
9.1. What may or must they do in order to fasten procedures?Administrative justice in Italy is exclusively organized in colleges; therefore normally the president of the court establishes the order of cases, that follows normally the chronological criterion; but he/she may decide that a certain case should be dealt with a priority.
9.2. Is it possible, in your country, that the president of the court can remove a case from a judge that is dealing with the case too slowly?
Yes, in practise but the situation is not specifically provided for by law.
9.3. If yes, can this be done without interference with the independence of the judge?
No, if the removal is actually grounded on the delay caused by negligence or by other reason (e.g., ill).
9.4. What happens when a case has been unduly delayed – will there be disciplinary measures against a judge who is responsible for the delay? Can the judge be prosecuted?
Yes (see above under 7.3).
The simple delay is not a crime by law.
(Example : The Swedish government laid a proposition to the Parliament with a law “Declaration of priority of cases in court”. An applicant should be able to turn to the court and ask for priority if his case has been unduly delayed. Then the president of the court can decide that a certain case should be dealt with priority and the judge in question must follow this decision. If he does not there can be disciplinary actions against the judge).
10. Is there a legal remedies against delays in the sense of article 13 EMRK in the respective national procedural laws (see the ECHR’s cases Kudla/Poland and Sürmely/Germany). What kind of legal remedies do we find to be compatible/incompatible with the independence of judges?
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.In our opinion this kind of legal remedy is compatible with the independence of judges, because the law considers the unduly delay as caused by the justice system in general and not by the single judge. However when the delay is a result of malice, gross negligence or deny of justice of the judge the state asks to the judge the recovery of damages through another procedure.
Judges remunerations and its evolution in the new economical context
11. Could you describe the system of the judges remunerations in your country, and give some information about the level of their remunerations?
The scheme of the judges remunerations in our country is the same for civil, penal and administrative.
The administrative judges are divided in “referendario” (“référendaire” in French, that corresponds to the judge of the civil Appeal Court), “first referendario”, consigliere (“Conseiller”, that corresponds to the judge of the High Court) and president of a chamber of the Council of State/ president of a T.A.R..
The first before-tax remuneration for the referendario amounts to € 54.677,24, for the first referendario to € 62.315,58, for consigliere to € 99.372,26 and for president to € 124.593,41.
To these sums a special payment (about € 1.000) for judges is added.
The law provides for automatic salary increases, calculated on the average salary increases of all public servants, even if the Italian Association of administrative judge shall often bargain exactly the way of calculation.
The automatic salary increase is accompanied by annual cost-of-living adjustments (today about € 1.000).
After tax the remuneration is actually cut down nearly to 50%.