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JURIST's Italy Correspondents are: Elisabetta Silvestri, Assistant Professor of Civil Procedure, Faculty of Law, University of Pavia; Nicola Lugaresi, Associate Professor of Administrative Law, Faculty of Law, University of Trento; Enrico Baccetti, Adonnino Ascoli & Cavasola Scamoni, Milan; Alberto Cantu, De Berti Jacchia Perno & Associti, Milan; and avv. Stefano Nespor, Milan.
Recent Developments in Italian Law

[Pavia; Special to JURIST] According to John H. Merryman, "a common lawyer who approaches the Italian law should attempt to acquire the Italian outlook. To some extent this outlook is peculiarly Italian: there is an Italian style." [The Loneliness of the Comparative Lawyer (1999), at 178]. Law-Italian style can be difficult to understand not only for common lawyers, but for Italian lawyers as well. A too prolific and messy lawmaker floods the country with conflicting rules; courts are overburdened and constantly on the verge of a breakdown; citizens are confused and dissatisfied with the legal system; almost every second day European institutions reprimand the government for its failure to comply with the obligations deriving from the Union membership.

Against this gloomy background one might begin to describe recent developments of Italian law with the reform that in 1989 turned upside down the procedural model traditionally followed in criminal trials. The idea was to get rid of the inquisitorial procedure in favor of an adversarial one, heavily drawing on the common law experience. Over the last decade, however, countless statutory revisions and rulings of the Constitutional Court have given birth to a sort of procedural "monster", whose species is still unknown. The only thing that is well known by everybody is that criminal proceedings are long, cumbersome and ineffective.

Civil cases are not in much better shape, if one takes into account that the average length of a civil case pending before a trial court is above three and a half years. In the 1990s several reforms attempted to simplify and expedite the procedure; others have established new decisionmaking bodies such as the justices of the peace and the single judge in the courts of first instance. Nothing seems to work, though: Italy retains the disgraceful record of having the highest number of cases in which it has been found guilty by the European Court of Human Rights for the infringement of article 6 (Right to a Fair Trial) of the European Convention on Human Rights. Some data may put this in context: in 1999 alone, not less than 361 decisions were issued by the European Court against Italy, mostly because the delay of civil cases did not meet the requirement of "a reasonable time" imposed by article 6 of the Convention. The cost of these rulings to the public revenue, and therefore to Italian tax payers, was twelve billion lire (roughly six billion US dollars) in damages. In an effort to solve this problem, the Italian Parliament had the brilliant idea of amending the Constitution by inserting the following principle: "the law shall ensure the reasonable lenght of proceedings". Needless to say, no law by itself can guarantee an expedited trial: if the courts' dockets are overcrowded, if judges are lazy, if lawyers are interested in dragging things on to make more money, what is the advantage of having such a principle engraved in our Constitution, when every knowledgeable person realizes that it is doomed to remain ineffective?

Another path followed by Italian lawmakers in order to improve the state of civil justice is the increasing use of ADR, most of all mediation and conciliation. Mandatory attempts at conciliation, for instance, are now necessary steps of the procedure in labor cases; conciliation is widely favored in the field of environmental and consumer protection. ADR providers are flourishing everywhere, and practicing lawyers as well as academics seem fascinated by the opportunity of jumping on the boat of a new business that is likely to be very profitable.

The last innovation worth mentioning is the creation of independent authorities. Very controversial bodies, with their mixture of administrative as well as adjudicative powers, such authorities rule very important fields such as competition, telecommunications, natural resources, and privacy protection. They are becoming more and more powerful, but also less and less indipendent from political influence.

How can the average Italian citizen survive in such a defective legal system? Believe it or not we do survive. But we complain a lot.

Elisabetta Silvestri
JURIST Italy Correspondent
April 13, 2000


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