Academic journal article Justice System Journal

Can an Italian Court Use the American Approach to Delay Reduction?*

Academic journal article Justice System Journal

Can an Italian Court Use the American Approach to Delay Reduction?*

Article excerpt

Italy may have the largest backlog and the slowest pace of civil and criminal litigation among all western countries. This article represents an effort to outline some of the issues associated with delay in Italian courts and to consider whether solutions to delay from the American experience might be helpful for Italian courts and in countries with similar problems. After a brief examination of the tribunal in Bologna as an example of case processing in Italian general-jurisdiction courts of first instance, the article outlines possible suggestions for improvement that might be offered to this court based on the American experience-such as time standards and limitation of unnecessary continuances. It is not easy to apply such remedies in Italian courts, and the authors describe five factors that would impede any effort to implement suggestions for improvement based on the American experience. They conclude by offering ideas on what might be necessary for an Italian court to provide "a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law," as provided in the European Convention on Human Rights.

The European Convention on Human Rights (ECHR; Council of Europe, 1950) provides that "in the determination of his civil rights and obligations or of any criminal charges against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law" (Art. 6, par. 1). Yet in 1999, the president of the European Group of Public Administration observed that courts in all European countries are faced with problems of management ineffectiveness and inefficiency that have resulted in their being burdened with a backlog of work, with cases protracted beyond reasonable time limits (Snellen, 2000:v).

Courts in European countries are beginning to consider how to cope with judicial delays, and researchers have started to relate the "reasonable time" clause in ECHR paragraph 6 to court management problems regarding the timeliness of civil, criminal, and administrative proceedings (see Fabri and Langbroek, 2003). It has been suggested, however, that Italy may have "the largest backlog and the slowest pace of litigation, both civil and criminal, among all the Western countries. For the excessive duration of trials, Italy has been repeatedly condemned by the European Court of Human Rights" (Fabri, 2000:190; Council of Europe, 2006).

This article addresses some of the reasons for delay in Italian courts. Following a summary description of the Italian judicial system and an outline of the American approach to caseflow management, the authors briefly examine the way that cases are handled in the tribunal in Bologna as a specific example of case processing in Italian general-jurisdiction courts of first instance. We briefly describe possible improvements from the American experience that might be applied in these courts, and then we address the factors that would have to be considered in any effort to implement any prospective improvements.

ITALIAN COURT ORGANIZATION AND PROCEDURE

Organization. While the constitutional structure of the United States as a federal republic means that there is both a federal court system and a separate set of state court systems, the constitutional structure of the Republic of Italy provides for a single national judicial system (Democratic Republic of Italy, 1948: Arts. 1 and 101-113).

Public prosecutors are part of the judicial branch of government, instead of being in the executive branch as in the United States. In Italy, judges and public prosecutors together are "magistrates," and during their careers magistrates may go back and forth between judicial and prosecutorial assignments, even though recent legislation plans to limit this possibility (see Law No. 150, 25 July 2005, and Law No. 269, 24 October 2006) Public prosecutors have special "Anti-Mafia" bureaus dedicated to activities against organized crime. …

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