- •The Never-Ending Reforms of Italian Civil Justice
- •1. When I sat at my desk and decided to write a short essay on the latest Italian reforms in the
- •In the South. This is the average length: it is estimated that in the South approximately sixteen cases
- •Into motion an exclusively written preparation of the case. Such a written preparation will take
- •2008/52/Ec of the European Parliament and of the Council of May 2008 on certain aspects of
The Never-Ending Reforms of Italian Civil Justice
ELISABETTA SILVESTRI*
SUMMARY: 1. The present state of Italian civil justice. – 2. Many reforms, no positive results. – 3.
What will the future bring?
1. When I sat at my desk and decided to write a short essay on the latest Italian reforms in the
field of civil procedure, the first question I asked myself was: where should I start? Since 1990 no
year has gone by in Italy without a reform that was announced as the ‘mother of all reforms’, the
one that would solve at last the many problems affecting the administration of justice at large, and
most of all reverse the dramatic state of civil justice. Then I realized that there was no point in
boring the reader with an endless list of what can be considered as a long series of failed attempts
at patching up a fabric that – unfortunately – is beyond repair. Obviously, this is my personal point
of view: in order to allow you to establish whether I am right or wrong, I decided to begin by
offering you some data so that you can form your own opinion. I am almost certain that, in the light
of the data I am about to present to you, you will have to agree with me.
The data come from official sources, in particular from the Report on the state of justice
submitted to the Parliament by the Minister of Justice in January 2011.(1) At the end of 2010, six
million civil cases were pending before Italian courts, which means that approximately fifteen
million Italians were waiting for a judgment. And it is a very long wait they have to endure: the
average length of civil proceedings (from their inception to the exhaustion of all possible appeals) is
seven years and one month in the Northern regions of the country and nine years and seven months
In the South. This is the average length: it is estimated that in the South approximately sixteen cases
out of one hundred cases may last up to twenty years.
Let us take a look at how Italy ranks in Europe and in the worldwide scenario as far as the
administration of justice is concerned. Among the countries of Western Europe, Italy has the worst
performance regarding the length of judicial proceedings.(2) The many judgments issued by the EU
* Associate Professor of Comparative Civil Procedure & Director of the Post-Graduate School for Mediators and ADR
Professionals, School of Law, University of Pavia, Italy.
(1) The complete text of the Report is available online at <http://www.governo.it/ GovernoInforma/ Dossier/ giustizia_
relazione/rela_integrale.pdf>.
(2 ) According to the official statistics of the European Court of Human Rights, between 1959 and 2010 Italy scored the
highest number of violations of the principle according to which an essential component of the right to a fair trial, as
elucidated by art. 6.1 of the European Convention on Human Rights, is the ‘reasonable length’ of judicial proceedings:
see the file ‘Violation by Article and by Country 1959 – 2010’, at < http: //www.echr.coe.int/NR/rdonlyres/2B783BFF-
39C9-455C-B7C7-F821056BF32A /0/ Tableau _de_ violations_19592010_ENG.pdf>. This explains why 60% of the
violation judgments issued against Italy concern the length of proceedings: see ‘Statistics for Italy on 1 January 2009’,
at < http://www.echr.coe.int/NR/rdonlyres/B21D260B-3559-4FB2-A629-881C66DC3B2F /0/ CountryStatistics
01012009.pdf>.
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Court of Human Rights for violation of article 6 of the European Convention on Human Rights
(ECHR) mean that the Italian national budget is burdened by the huge expenditure necessary to
match the financial compensation the State owes to those whose right to a fair and reasonably long
trial has been infringed: to help you understand how dramatic the problem is, consider that for the
years between 2002 and 2009 such an expenditure reached the astronomical amount of 267 million
euros, taking into account both the compensations paid and the outstanding ones.(3)
As of December 2, 2010, 2,183 cases against Italy concerning the excessive length of judicial
proceedings (mostly civil cases) were pending before the European Court of Human Rights. This
figure comes from the latest Interim Resolution issued by the Committee of Ministers of the
Council of Europe,(4) which is the last one in a long list of Interim Resolutions addressing the same
issues from 1992 on. In criticizing the Italian authorities for their inability to devise solutions for the
endemic problem of the backlog crowding the courts, the Committee cast light on a new
phenomenon: a growing number of applications submitted by Italians to the European Court of
Human Rights now concerns the issue of excessive delay in the payment of monetary
compensations the Court originally awarded to them, compensations that cannot be obtained from
the Italian government within a reasonable amount of time.
In the worldwide scenario, things are even worse for Italy. According to the yearly report issued
by the World Bank on the performance of 183 selected countries (the famous ‘Doing Business
Report’), Italy ranks 157 with reference to the indicator labelled as ‘Enforcing contracts’.(5) This
indicator measures the time, cost, and procedural complexity of resolving disputes between two
domestic businesses over the breach of a contract for the sale of goods. The Italian rank has been
constant over several years, with no signs of improvement. What the World Bank takes into account
is the procedure before a court of first instance, that is, the time necessary to obtain an enforceable
judgment, and to enforce it as well. Here are the results of the survey: in Italy it takes an average of
three years and three months to complete this cycle; forty-one different procedures are involved,
and 30 percent of the claim is eaten up by the costs of litigation and attorneys’ fees. The comparison
(3) The data related to the cost of justice delayed for the national budget come from a very interesting Report prepared
in 2010 by ‘Cittadinanza Attiva’, a consumer association. The Report is named ‘Grandi opere: la giustizia – Il rapporto
sulla giustizia in Italia’, and is available online at <http://www.cittadinanzattiva.it /files/doc_man/
giustizia/rapporti_pit_giustizia/2010_II_rapporto_pit_giustizia_completo.zip> , p. 44 – 51.
(4) Interim Resolution CM/ResDH (2010) 224, Execution of the judgments of the European Court of Human Rights
concerning the excessive length of judicial proceedings in Italy (adopted by the Committee of Minister on 2 December
2010 at the 110th meeting of the Ministers’ Deputies), at
<https://wcd.coe.int/wcd/ViewDoc.jsp?id=1715973&Site=CM>.
(5) Here, reference is made to ‘Doing Business 2011’: the country report for Italy is available at
<http://www.doingbusiness.org/~/media/FPDKM/Doing%20Business/Documents/Profiles/Country/DB11/ITA.pdf>.
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with other European countries, such as the Netherlands, France or the United Kingdom, casts Italy
in a very poor light.
2. This being the situation, you can understand why previously I spoke about the reforms that
took place starting from the 1990s as a series of failed attempts.(6) I suppose you wonder why the
reforms have failed. The main reason is that the Italian legislator thought things could be improved
by changing only the procedural regulations, and leaving the environment in which such regulations
are supposed to work untouched. Procedure does not operate in a vacuum: you can change it as
often as you want, but if you do not improve the institutional and structural settings that are the
necessary background of procedure, then you cannot expect any positive results. Just to give you
some examples: the judicial geography is more or less the same as Italy had when it became a
unified country (that is, one hundred fifty years ago), which means a very inefficient distribution of
courts throughout the national territory; Italy has a very high number of professional judges, but
civil courts are understaffed because the way criminal trials are organized implies that often judges
in charge of civil cases are called upon ‘to give a hand’ in dispatching criminal cases. The share of
the national budget allocated to the administration of justice is not much smaller than in other
European countries, but money is spent in irrational ways (for instance, building new courthouses
that end up being called ‘cathedrals in the desert’). Italy has too many lawyers (a little less than
250,000);(7) statutes assign to courts disputes that could be resolved more effectively and quickly
by resorting to administrative procedures – for example, the many disputes over unemployment
benefits, disability benefits, social security benefits, and the like; the Italian legal system is
obsessed with appeals, so that even a judgment issued by the court of last resort can be appealed
against under special circumstances. The list could continue, but I think the examples I made are
enough to help you understand at least some of the reasons explaining the failure of the recent
reforms of civil procedure.
If we move to take a close look at the reforms themselves, we notice that the Italian legislator has
taken pride in disregarding the common trend of the recent procedural reforms adopted in England,
France, Spain, and Germany. In order to improve the efficiency of civil justice, the countries I have
just mentioned have all chosen case management, even though to different degrees and in different
(6) For an overview of the many reforms implemented in the last two decades in the field of civil justice, see CAPONI,
R., ‘Italian Civil Justice Reform 2009’ (2009) 14 ZZPInt 143; VARANO, V. and DE LUCA, A., ‘Access to Justice in Italy’
(2007) 7 Global Jurist, available at <http://www.bepress.com/gj/vol7/iss1/art6>; TARUFFO, M., ‘Procedural Reform in
Italy’, in TROCKER, N. and VARANO, V. (eds.), The Reforms of Civil Procedure in Comparative Perspective (Torino,
Giappichelli Editore, 2005) 217 ; CHIARLONI, S., ‘Civil Justice and Its Paradoxes: An Italian Perspective’, in
ZUCKERMAN, A.A.S. (ed.), Civil Justice in Crisis (Oxford, Oxford University Press, 1999) 263.
(7) See SILVESTRI, E., ‘The Legal Profession in Italy: Regulation v. Competition?’, in UZELAC, A. and VAN RHEE, C.H.
(eds.), The Landscape of the Legal Profession in Europe and the USA: Continuity and Change (Cambridge-Antwerp-
Portland, Intersentia, 2011) 145.
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forms. They have set up a strong and well-structured preparatory stage of the proceeding in which
the parties and the judge cooperate so as to narrow the issues in dispute, establish the time frame of
the future development of adjudication, choose the evidence that will have to be taken, explore the
possibilities of a settlement, and so on. No matter if case management implies a specific preliminary
hearing for the preparation of the case with a view to a subsequent main hearing, when evidence is
taken and the parties make their final submissions – as in Germany(8) or in Spain(9) – or a more
articulated sequence followed first to decide which procedural track is suitable for the case at stake,
and afterwards to prepare the case under the direction of a judge appointed for taking care of this
task, if the complexity of the case calls for a real preparation – as in France(10) – the recurring
element of case management is the active role conferred on the judge for the efficient development
of the adjudication.
An active role for the judge means granting him or her more powers, including the power to
apply sanctions on the parties at fault, but it also means curbing substantially the leeway left to the
parties for their strategies, and that is exactly what the Italian legislator decided to avoid. Actually,
the reform passed in 1990 made a modest attempt at introducing a minor version of case
management by providing for a simplified and concentrated form of preparation of the case. Due to
the strong opposition coming from the Bar, in 1995 a step back was taken, and the preparatory stage
of the case was diluted over three non-concentrated hearings that could easily become five, six or
more, since each hearing could be adjourned. This phase was followed by a series of fragmented
hearings for the taking of evidence according to the old, traditional Italian way of proof-taking, and,
therefore, no improvement was brought about by the reforms of 1990 – 1995.
That the Italian legislator was determined to hold on to the Italian ‘exceptionalism’ within the
European landscape of modern civil procedure was revealed most of all by the new special rules
enacted in 2003 for commercial cases. The drafters of the reform openly acknowledged that these
new rules were supposed to be a sort of rehearsal of a general rewriting of the entire Italian civil
procedure: the content of the new rules can be described with a slogan “let’s privatize civil justice,
and reduce the judge to a sort of clerk, whose only role is to take notice of the parties’ will”.
Subsequent reforms have allowed the parties to choose this new procedure as an alternative to the
so-called ordinary procedure, but the practice showed that the new rules had many drawbacks, and
(8) See MURRAY, P. L. and STÜRNER, R., German Civil Justice (Durham, NC, Carolina Academic Press, 2004) 225.
(9) See DÍEZ-PICAZO GIMÉNEZ, I., The Principal Innovations of Spain’s Recent Civil Procedure Reform, in TROCKER,
N. and VARANO, V. (eds.), The Reforms of Civil Procedure in Comparative Perspective (Torino, Giappichelli Editore,
2005) 33.
(10) See FERRAND, F., The Respective Role of the Judge and the Parties in the Preparation of the Case in France, in
TROCKER, N. and VARANO, V. (eds.), The Reforms of Civil Procedure in Comparative Perspective (Torino, Giappichelli
Editore, 2005) 7.
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were likely to cause further problems, since they paved the way to new and more sophisticated
delaying tactics.
And now we come to the most recent comprehensive reform, dated 2009. Many new rules have
been enacted, but very little has changed in reality. It is true that the procedure for commercial cases
has been repealed, but the trend toward the privatization of civil justice is still alive and kicking.
But I will come back to this aspect later.
The ordinary proceeding is still far from the pattern that is predominant in Western Europe
nowadays. A real preparatory phase is still missing: after the pleading stage, the first hearing before
the judge is not aimed at narrowing and clarifying the issues, but has only the purpose of setting