an undue disturbance of the mind caused to the victim or his or her family. In the absence of specific provisions, legal theory and case law defended opposite positions under the previous code. Some sought as far as possible to limit the extent of redress obtainable and admitted damages for pain and suffering (pretium dolori) only in exceptional cases. Others sought to widen the range of admissible heads of claim and apply more generous remedies. The controversy has not been brought any closer to a solution by the provision in the current penal code (Art 185) that non-economic harm is redressable only if caused by the commission of an offence.

Judgments in decided cases tended to support the restrictive thesis, only admitting damages for mental suffering where, typically, a crime has been committed, although the formulation of mental suffering employed goes further than psychic disturbance to include also the effects of bereavement and the shock incurred through suffering grave harm. In recent years, however, it has shifted towards a more open view: non-pecuniary damages will be compensated whenever they are the consequence of violation of constitutionally protected rights (such as life, health, personality).

Chapter IX:

Protection of Rights

9.1. Protection of rights

9.1.1. Means of defending a legal position

Some of the means of defending a ‘legal position’, that is, any situation where an individual may assert a right or interest of any kind, are covered by the civil code and collected in Book VI and rather imprecisely labelled ‘protection of rights’. There are many different provisions to be found in the various Books devoted to the protection of claims that an individual may present in the contexts of: the person and the family (for example, the rules on injunctive relief, Art 10 civil code, on actions against directors of associations, Art 22, and on actions to claim, repudiate or dispute legitimacy, Arts 244ff); succession (for example, an estate petition, Art 533 civil code); property (for example, an action in defence of property, Arts 948ff, and for possession, Arts 1168ff); obligations (for example, actions for avoidance and nullity, discharge and rescission of contracts, and so on); and employment (actions for administrators’ liability, to take one example).

The various means of protection differ considerably among themselves, because they concern the existence and defensibility against third parties of actions and court decisions and procedures, and because they apply variously according to whether a party seeks relief before a court or through arbitration.

9.1.2. Notification

Notification of judicial actions means the ways in which notice is given of legally significant acts, orders and decisions. For immoveable property such as land there is a system of entry in various registries, whereby any transfer of property or minor interests is recorded.

Entry on a register does not affect the transfer and hence its validity. It merely serves notice on third parties of its existence and content. A transfer cannot be binding on third parties unless they have notice of it, so where Titus sells to Gaius a piece of land over which Sempronius

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enjoys a right of way not referred to in the deed of transfer, if Sempronius has not registered his interest in timely fashion before the transfer, he cannot assert his right of way against Gaius, who is not bound by it. If Titus sells his property first to Mevius and then to Gaius, but only Gaius registers the transfer, Mevius, even though he purchased first, cannot assert his property over the claim of Gaius who registered before him.

For registrable moveable goods a similar system applies. There is a Public Vehicle Registry (PRA) and one for boats (RINA).

Notification thus has a merely declarative effect. When it has been carried out it may, however, have a stronger, legally significant or constitutive effect, when the act of notification itself gives rise to a right. This is the case, for example, when a mortgage is registered. It may also have a curative effect, as when a void or voidable deed has been registered before the court order declaring it void or annulling it (Art 2690).

The code lists deeds and orders that require registration (Arts 2463, 2465, 2646ff). It also declares the principle of continuity of registration (Art 2690) and provides rules for registering judgments (Arts 2652 and 2653).

There is a further type of notification, which has less extensive effects than that mentioned above. This concerns deeds and orders that should be made public but whose validity is not impaired if notification is not made or is defective (for example, banns of marriage, Art 93).

9.1.3. Evidence

To assert a right before the court one must prove the facts on which the assertion is based. This is the principle of burden of proof (Art 2697) which can be discharged by documentary and parole evidence.

There are two kinds of documentary evidence, public and private. Article 2699 provides that public documents must be formally attested before a notary or other public official authorised to give it public credit in the place where it was transacted. This then constitutes proof, unless and until an action alleges it has been falsified, of the document’s origin, underwritten by the person who notarised it, and of the declarations made by parties and other acts that the public official attests to have been carried out by him or others in his presence.

A private deed is any written document created by the relevant parties. It has a lesser probative effect, because it proves, unless and until an action alleges it has been falsified, the origins of the declarations made in it by the signatories and these can be asserted legally against anyone who recognises the fact of signature.

Signature of a private deed attested before a notary or other authorised public official is deemed to have been recognised by the parties (Arts 2702 and 2703).

The date of the deed is certain in the case of a public document. The date of a private deed is ascertainable as the moment when it is registered for tax purposes or by indirect means (such as being formally stamped).

Parole evidence is adduced in court proceedings or in arbitration. It cannot be called if the facts it is sought to prove have already been established documentarily.

An admission (Art 2730) is an affirmation of facts that are unfavourable to the party making it and favourable to his opponent.

An oath (Art 2736) may be submitted to by one party vis-à-vis the other. The so-called decisory oath is one made in respect of specified circumstances in such a way as to settle the issue. A refusal to make an oath is deemed to resolve the issue in favour of the other party who has submitted to one.

9.2. Actions to protect rights and interests

9.2.1. Actions and trials

Rights and interests held by individuals and groups can be infringed in various ways by other persons. Since taking the law into one’s own hands is not permitted, in order to ensure social order and the equal application of rights and interests, the legal order puts various means of obtaining justice at the disposal of individuals and groups.

There are civil code rules which indicate how rights and interests are to be balanced, for example, in regard to nuisance Art 844(2) provides that the demands of production are to be balanced against those of property. Article 1380 provides that where interests relating to the enjoyment of the same object conflict, the right that has existed for the longer time shall prevail, and so on.

In most cases, when conflicts between neighbours arise, or contracts are not performed, or civil wrongs are committed causing harm to third parties, or in any other case where rights or interests are interfered with or infringed, the aggrieved party can go to court or to the appropriate tribunal provided by the State for the resolution of particular types of dispute (arbitrational justice). If the dispute arises between a citizen and the public administration concerning breach of legitimate interests or abuse of power, violation or wrongful application of laws, the matter is referred to an administrative court (administrative justice).

The Constitution guarantees the right to bring an action, and the protection of individual rights and legitimate interests, and to defend

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them in court (Art 24). The procedure for defending such rights and interests in court is as provided by the competent judge, and the case cannot be removed from the court’s jurisdiction (Art 25).

Judicial protection of a right is itself the subject of a right, that of bringing an action.

We have already mentioned the actions that the civil code authorises individuals to bring. Most of these are of standard form, insofar as the claims they are brought in respect of have certain features and are subject to certain time limits (for example, petitions and actions for possession, etc). Non-standard forms of action are also recognised, for example, an injunction action to put an end to an injurious activity.

Actions are distinguished from one another by the purpose they serve. Declaratory actions are brought before the court in order to establish that a claimed right exists or else to clarify the legal relations that obtain between parties (for example, an action to establish boundaries, or for the division of common property). Actions for relief are brought before the court so that a legal relationship can be instituted, modified or extinguished (for example, divorce, or discharge of a contract for non-performance). Actions for satisfaction are brought before the court so that a sanction provided by law (for example, damages) can be

applied.

The procedure triggered by the bringing of an action, that is, by the deposition of a claim at the court office, will be the one appropriate to the type of action. The process is concluded by a judgment.

Once the procedure is complete and judgment (declaration, or relief, or sanction) pronounced, or the legal relationship has been ascertained or the substantive rights do not need to be adjudicated, the party may now seek to realise the right that has been established. Enforcement proceedings now begin.

If the court’s intervention is sought as a matter of urgency, because any delay in setting up and completing the procedure would prejudice a defensible right (periculum in mora, fumus boni juris), this can be achieved through ex parte or preventive proceedings.

Civil court judges are categorised according to the type of case they are competent to hear. A justice of the peace hears actions concerning: moveable property (to a value not exceeding € 2500); damages claims involving traffic and nautical incidents to a limit of € 15,000; setting time and distance limits; nuisance in relations between landowners or others in possession of land; services in common ownership. All the other cases are brought in front of a Court of First Instance, in which a single judge or a three member panel hears the arguments of the parties following an adversarial procedure.

9.2.2. Principles governing trials

There are many principles governing trials. The following are the most important.

(a)the principle of request, whereby any person seeking to assert a right must make a request to the competent judge (Art 99 civil procedure code). To make or oppose a request it is necessary to have a relevant interest. An individual must therefore take positive action to obtain a right and not count on the outcome of official procedures set in motion by the judge (which only apply in exceptional cases, such as a declaration of insolvency);

(b)the evidential principle, whereby the judge can reach a decision only on the basis of evidence (as mentioned above) adduced or presented by the parties (Art 115 civil procedure code);

(c)the adversarial principle, by which a judge can take no measure against a party who has not been validly summoned or informed of the application to do so (Art 101 civil procedure code);

(d)the principal of correspondence with relief sought, whereby the judge can only make an order within the scope of the remedy sought and not go beyond it (Art 112 civil procedure code);

(e)the principle whereby the judge must reach his decision on the basis of law unless the parties have requested that he or she reach it on the basis of equity (Art 113 civil procedure code).`

An action begins with the lodging of a request (statement of claim) by the person bringing the action (the claimant), to which the person against whom the action is brought may lodge a reply (answer, or defence). The judge sets the investigatory process in motion to establish the relevant facts and, once these are completed, the parties are permitted further pleadings of fact and law (concluding arguments). The judge decides the outcome of the case if he or she is sitting alone, or otherwise refers it to colleagues. The decision is in the form of a judgment.

The judgment is in two parts: the order, in which the outcome of the trial is stated (a declaration, creation or modification of a relationship, a sanction); and the reasons, stating the arguments and reasoning on which the order was based.

The judgment is registered in the court office and the more diligent (or more interested) of the parties notifies the other. It becomes immediately effective unless the appeal judge decides, on serious grounds, that it must be suspended.

A first appeal lies to the next higher judicial level (from a justice of the peace to the Court of First Instance, and from the Court of First

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Instance to the Court of Appeal). It is an appeal on the merits of the case and so the evidence can be repeated.

Once a first appeal is completed, there may be a further and final appeal to the Court of Cassation in Rome. Reasons justifying the further appeal may include errors or inconsistencies of interpretation or application of legal rules on the part of the appeal judge.

The Court of Cassation may reject the further appeal and thus affirm the result of the first appeal, or else uphold the further appeal and remit the decision to the appeal judge so that the correct principle can be applied. The revised judgment on appeal can also be challenged in Cassation.