Following the agitation that has affected all of the Bars throughout Italy and which led to a significant blockage of civil and criminal hearings for around two months, the famous mini-reform of Italian civil procedure has experienced considerable and innumerable revisions in relation to the usual urgent measures.
Apart from changes in competence in accordance with the value of the case (the lower court of the Pretore can now deal with matters with a value of up to fifty million Lire), in particular a timely attenuation of the so-called "time-bars", or the time limits during proceedings within which a party must perform a certain act (for example, ask for witness evidence, or raise an objection), has distinguished itself, non-compliance with which will lead to a party losing the right to exercise the relative option. The numerous time-bars provided, which make it possible to distort the outcome of a trial by purely procedural means were, in fact, demagogically introduced on the basis of the curious idea that the slowness of civil proceedings did not depend on the lack of staff, structures and funds, nor on the frightening inefficiency of the civil judicial offices, but on the indolence of the parties and the interested obstructionism and tactical moves of their lawyers.
However, another otherwise worrying point is the new disposition introduced by art. 186-quater of the Code of Civil Procedure, which provides that "the instructions being exhausted, the Instructing Judge, on the application of the party which asked for judgement to pay a sum, or for delivery or release of goods, can decide with an order on payment, delivery of release within the limits of proof which he considers already reached." That provision seems somewhat paradoxical, given that the proof "already reached" at the end of the instruction phase of proceedings represents all of the evidence which is gathered during the course of the proceedings, given that after instruction, the only two remaining phases are the filing of the final defences and the decision of the case; and that it is not understood how an Instructing Judge, who now is the only judge of a case, is subsequently induced to change his mind with the judgement. Further, the provision in question is executory; and automatically acquires effective judgement in the event that the proceedings end or where the party in whose favour judgement was made renounces the passing of the sentence (which is naturally in his interests to do, otherwise remaining for months or years burdened by an executory order before being able to obtain a re-examination, perhaps without adjournment, by another judge, and, possibly to be able to obtain a restitution of the case). We are, therefore, facing an attempt as drastic as enormous at thinning proceedings, which sees the legislator, with the sole objective of the quantity of decided matters, largely give up any preoccupation relating to the quality and circumspection surrounding decisions and of the guarantees of substantial justice for the parties. In practice, in fact, the single judge who has substituted the college of three magistrates (to whom the Instructing Judge had to explain the case before the decision, thereby being more or less forced to read out the pleadings) will find himself having to definitively decide the matter immediately after the closure of the evidence with a judgement almost devoid of reasoning, and without even having heard the closing arguments of the parties' lawyers, with the respective valuations and comments as to the evidence collected, the documents produced and to the various questions of fact and law, perhaps coming out for the first time in the course of the trial.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
To print this article, all you need is to be registered on Mondaq.com.
Click to Login as an existing user or Register so you can print this article.
Under Regulation (EU) No. 648/2012 of the European Parliament and of the Council of 4 July 2012 on OTC derivatives, central counterparties and trade repositories ("EMIR")...
Some comments from our readers… “The articles are extremely timely and highly applicable” “I often find critical information not available elsewhere” “As in-house counsel, Mondaq’s service is of great value”
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).