Interim Resolution CM/ResDH(2009)42¹

Execution of the judgments of the European Court of Human Rights concerning the excessive length of judicial proceedings in Italy:
Progress achieved and outstanding issues in the context of general measures to ensure compliance with the judgments of the European Court of Human Rights in:

- the 2183 cases against Italy concerning the excessive length of judicial proceedings (listed in Appendix I)
(Follow-up to Interim Resolutions DH(97)336, DH(99)436, DH(99)437, ResDH(2000)135, ResDH(2005)114, and CM/ResDH(2007)2), and
- the cases concerning bankruptcy proceedings (Articles 1of Protocol no.1 and 6§1) (listed in Appendix II)
(Follow-up to Interim Resolution CM/ResDH(2007)27)

The Committee of Ministers, under the terms of Article 46, paragraph 2, of the Convention for the Protection of Human Rights and Fundamental Freedoms, as amended by Protocol No. 11 (hereinafter “the Convention”),

Considering the large number of judgments of the European Court of Human Rights (“the Court”) and decisions of the Committee of Ministers ("the Committee") since the early 1980s finding structural problems underlying the excessive length of civil, criminal and administrative proceedings in Italy;

Recalling the major reforms undertaken in respect of civil and criminal proceedings as well as proceedings before the Court of Audit which led the Committee to close its examination of these aspects of the problem in the 1990s (see Resolutions DH(1992)26, (1995)82 and (1994)26);

Recalling that given the subsequent, continued influx of new findings of violations the Committee resumed its examination of these proceedings;

Recalling that the Committee decided to keep these cases on its agenda until such time as effective reforms were implemented and the reversal of the national tendency in the context of length of proceedings was definitely confirmed (Interim Resolution DH(2000)135);

Recalling that, as in Interim Resolution ResDH(2005)114, the Committee in its last Interim Resolution, CM/ResDH(2007)2, urged the Italian authorities to hold to their political commitment to resolve the problem of the excessive length of judicial proceedings and invited them to undertake interdisciplinary action involving the main judicial actors and co-ordinated at the highest political level with a view to drawing up a new, effective strategy;

Bearing in mind that in Interim Resolution CM/ResDH(2007)27 concerning bankruptcy proceedings the Committee welcomed the 2006 reform of bankruptcy proceedings and its immediate effect in erasing many of the restrictions on rights and freedoms criticised in the Court’s judgments; moreover, it called on the Italian authorities to provide information on the effects of this reform as regards the acceleration of bankruptcy proceedings and decided to examine these cases in conjunction with those related to the more general problem of the excessive duration of judicial proceedings;

Recalling that the dysfunction of the justice system, as a consequence of the length of proceedings, represents an important danger, not least for the respect of the Rule of Law;

Welcoming the regular and close co-operation established between the Italian authorities and the Secretariat in particular through bilateral meetings at high level that took place in Rome in October 2007 and in October 2008, with a view to keeping the Committee of Ministers informed on the progress achieved following Interim Resolution CM/ResDH(2007)2 with respect to the structural problem of length of proceedings before the civil, criminal, and administrative courts, and the efficiency of justice in general;

Noting with satisfaction the continuing political commitment of the authorities to overcome the structural problem of the length of judicial proceedings and welcoming the efforts made in recent years focusing simultaneously on legislative reform, reorganisation of the judiciary and management of proceedings by judges;

Underlining the declarations made, at the beginning of 2009, by the Presidents of the highest courts (Constitutional Court and Supreme Court of Cassation), as well as by the Ministry of Justice, which show the authorities’ determination to give the structural problem of the length of proceedings the necessary priority in their own fields of action by ensuring the implementation of the measures already taken and the prompt adoption of further measures intended to improve the efficiency of justice;

Assessment of the Committee of Ministers

Having examined the information provided by the Italian authorities concerning the measures taken since the adoption of Interim Resolutions CM/ResDH(2007)2 and CM/ResDH(2007)27, as presented in Information Document CM/Inf/DH(2008)42 of 28 November 2008 and in Appendix II to the present resolution;

1) Civil and criminal proceedings

Noting that, notwithstanding the measures taken, the statistics for the years 2006-2007 still show an increase in the length of proceedings in particular before certain jurisdictions (justices of peace [giudici di pace] and courts of appeal), as well as a substantial backlog in the civil and criminal fields (approximately 5.5 million pending civil cases and 3.2 million pending criminal cases), and that therefore a permanent solution to the structural problem of length of proceedings must be found;

Noting with interest the progress achieved through the measures adopted so far in the field in particular:

- Law-Decree No. 112 of 25 June 2008, converted into Act No. 133 of 6 August 2008, which introduced amendments designed to bring about a significant reduction in civil claims in which the behaviour of litigants delays the proceedings;
- Law-Decree No. 92 of 23 May 2008, converted into Act No. 125 of 24 July 2008, which amended the Code of Criminal Procedure with a view to accelerating and rationalising criminal-law proceedings;

Considering that the reforms adopted will show their results only in the medium term;

Noting also in this respect the Bill (A.S. 1082), currently pending before Parliament, which specifically aims to expedite the processing of civil cases by broadly reforming civil procedure with an underlying strategy of reducing the number of trials; accelerating the on-going trials and developing the use of alternative dispute regulation;

Recalling that in several judgments concerning the remedy against the excessive length of proceedings (Law No. 89/2001, Award of just satisfaction in the event of a breach of the requirement to dispose of proceedings within a reasonable time and amendment of Article 375 of the Code of Civil Procedure, referred to as the Pinto Law), the European Court found that the late payment of compensation to the applicant did not afford adequate redress and considered the applicant continued to be a victim of a breach of the “reasonable-time” requirement, and that the statistics provided by the government show an increase in the length of proceedings before the courts of appeal competent to deal with “Pinto Law” appeals;

CALLS UPON the Italian authorities to pursue actively their efforts to ensure the swift adoption of the measures already envisaged for civil proceedings; to envisage and adopt urgently ad hoc measures to reduce the civil and criminal backlog by giving priority to the oldest cases and to cases requiring particular diligence; to provide the resources needed to guarantee the implementation of all the reforms; and to pursue the consideration of any other measure to improve the efficiency of justice;

ENCOURAGES the authorities to continue implementing awareness-raising activities among judges to accompany the implementation of the reforms;

INVITES the authorities to draw up a timetable for anticipated medium-term results with a view to assessing them as the reforms proceed, and to adopt a method for analysing these results in order to make any necessary adjustments, if need be;

STRONGLY ENCOURAGES the authorities to consider amending Act No. 89/2001 (the Pinto Law) with a view to setting up a financial system resolving the problems of delay in the payment of compensation awarded, to simplify the procedure and to extend the scope of the remedy to include injunctions to expedite proceedings.

2) Administrative proceedings

Acknowledging the progress achieved following the reform of administrative proceedings (Act No. 205 of 21 July 2000) to expedite them, which has begun to have a concrete effect on the length of such proceedings;

Bearing in mind that the real problem of administrative courts is the backlog, which in 2007 amounted to 640 000 pending cases at first instance and 21 000 pending cases at appeal;

Noting that, with a view to reducing the backlog, specific measures have been adopted, such as

- Act No. 133 of 6 August 2008 which inter alia decreased the time limit for the lapsing of an administrative complaint from 10 to 5 years, unless the parties apply to the court for a hearing date, and
- the broader application of information technology (Nuovo Sistema Informativo della Giustizia Amministrativa), which should make it easier to identify of time-barred proceedings;

Noting also the measures envisaged in the field (in particular, the setting up of special provisional sections);

ENCOURAGES the Italian authorities to continue with their undertakings:
- to measure precisely the backlog in administrative proceedings;
- to adopt any measures envisaged further to reduce that backlog;
- and to assess the impact on the backlog of any measure taken.

3) Bankruptcy proceedings

Noting the reform brought in by Act No.80 of 14 May 2005 and Legislative Decree No. 5 of 9 January 2006 on bankruptcy proceedings (the measures of which are detailed in the appendix), which aimed, inter alia, at expediting such proceedings and simplifying the different procedural steps;

Noting that, on the basis of the statistics provided by the government, in absolute numbers, the bankruptcy petitions filed, as well as the bankruptcy declarations, decreased by approximately 40% in 2007, (that is after the entry into force of the reform);

Noting also that as far as expedition of proceedings is concerned, the reform has contributed to reducing substantially the phase of auditing claims, now grouped in one hearing ;

Bearing in mind that, as far as the length of bankruptcy proceedings is concerned, the reform has not yet been fully deployed insofar as it applies only to proceedings introduced following its entry into force and statistics are only available up to 2007;

Recalling, however, that the length in days of these proceedings remained stable, even in 2007, around a 2003-2007 average of 3300 days (i.e. approximately 9 years), and that proceedings pending before the entry into force of the reform, to which the reform does not apply, continue to be affected by this length;

CALLS UPON the Italian authorities to continue their efforts to ensure the Bankruptcy Proceedings Reform fully contributes to the acceleration of bankruptcy proceedings, to assess the effects of the reform as it proceeds with a view to adopting any further measures necessary to ensure its effectiveness, and to take also any measures necessary to expedite pending proceedings to which the reform does not apply.

4) Measures for improving the efficiency of the judiciary

Recalling the measures adopted aimed at improving the structural organisation of the judiciary (Law-Decree no. 143 of 16 September 2008, the increase of the number of ordinary judges, and disciplinary procedures against judges), as well as the fact that within the current legal framework, certain courts in different parts of the country have already achieved excellent results in terms of reduction of the backlog and expediting proceedings by improving their organisation and work management;

Noting the Ministry of Justice is continuing its efforts to develop the application of information technology in all judicial offices, in particular by the introduction of the Electronic Civil Trial (Processo civile telematico);

INVITES the authorities to ensure the dissemination of these best practices to other courts, implement any organisational measures taken, including the widespread use of information technologies to all jurisdictions, and adopt any additional measures to enhance more responsible and efficient behaviour from all players in the judicial system.

In view of the above, the Committee of Ministers

DECIDES to resume consideration of the progress achieved at the latest:
- at the end of 2009 for administrative proceedings, with a view to considering the possibility of closing the examination of the cases concerned;
- mid-2010 for civil, criminal, and bankruptcy proceedings;

INVITES the Italian authorities to keep the Committee of Ministers informed of all developments in order to ensure a continued monitoring of the progress, if need be, through bilateral meetings between the authorities and the Secretariat.

Appendix I to Interim Resolution CM/ResDH(2009)42

Information provided by the Italian authorities to the Committee of Ministers on general measures taken to comply with the European Court’s judgments on excessive length of judicial proceedings are summarised in the Information Document CM/Inf/DH(2008)42 of 28 November 2008 “Stock-taking of the measures adopted by the Italian authorities in 2006-2008 on the excessive length of judicial proceedings”.

- 2183 cases against Italy
2183 cases concerning the length of judicial proceedings
(see also, for more detailed information, CM/Inf/DH(2005)31 and addendum 1 and 2, CM/Inf/DH(2005)33, CM/Inf(2005)39, CM/Inf/DH(2008)42
Interim Resolutions DH(97)336, DH(99)436, DH(99)437, ResDH(2000)135 and CM/ResDH(2007)2
(See Appendix for the list of cases)

Appendix II to Interim Resolution CM/ResDH(2009)42

- Cases concerning bankruptcy proceedings (Articles 1 of Protocol No. 1 and 6§1)
Interim Resolution ResDH(2007)27
CM/Inf/DH(2008)42
32190/96 Luordo, judgment of 17/07/03, final on 17/10/03
56298/00 Bottaro, judgment of 17/07/03, final on 17/10/03
47778/99 Bassani, judgment of 11/12/03, final on 11/03/04
14448/03 Bertolini, judgment of 18/12/2007, final on 07/07/2008
1595/02 De Blasi, judgment of 05/10/2006, final on 12/02/2007
10347/02 Di Ieso, judgment of 03/07/2007, final on 03/10/2007
77986/01 Forte, judgment of 10/11/2005, final on 10/02/2006
10756/02 Gallucci, judgment of 12/06/2007, final on 12/11/2007
10481/02 Gasser, judgment of 21/09/2006, final on 12/02/2007
55984/00 Goffi, judgment of 24/03/2005, final on 06/07/2005
7503/02 Neroni, judgment of 20/04/2004, final on 10/11/2004
39884/98 Parisi and 3 others, judgment of 05/02/04, final on 05/05/04
44521/98 Peroni, judgment of 06/11/03, final on 06/02/04
52985/99 S.C., V.P., F.C. and E.C., judgment of 6/11/03, final on 6/02/04
7842/02 Viola and others, judgment of 08/01/2008, final on 08/04/2008

Additional information provided by the Italian authorities with respect to excessive length of bankruptcy proceedings

The reform is based upon two pieces of legislation: Act No.80 of 14 May 2005 and Legislative Decree No. 5 of 9 January 2006 on bankruptcy proceedings. In addition to the changes (concerning the individual restrictions following bankruptcy and remedies against the acts of the liquidators and magistrates) carried out to bring the situation into conformity with the ad hoc indications given by the Court, the reform also dealt with the goal of expediting bankruptcy proceedings, in particular by the following means:

a) the personal scope of bankruptcy proceedings has been reduced, whereas the amount of debts necessary to obtain a bankruptcy declaration has been increased;
b) the procedure in the case of bankruptcy adjudicated by a non-competent court, as well as in the case of an appeal lodged against a bankruptcy declaration has been simplified;
c) higher professional competencies are required to exercise the function of liquidator;
d) the competencies of the credits committee have been enlarged;
e) shorter and stricter time-limits have been introduced for the preparatory stages of the proceedings, which precede the declaration of bankruptcy, as well as stricter statutory time-limits for examining liabilities as from the bankruptcy declaration (180 days). Stricter statutory time-limits have also been introduced for auditing liabilities (120 days as from the deposit of the bankruptcy declaration); for lodging requests for admission to the liabilities (30 days before the audit hearing date); and for out-of-time demands. Shorter time limits are also in place for contesting the substantive proceedings, which also have a simplified procedure;

f) proceedings for the determination of liabilities have been rationalised and simplified, the delegate judge will in principle give immediate approval;
g) at the beginning of the procedure and no later than 60 days from the compilation of the inventory, the liquidator must present a plan for liquidation of the assets, with particular regard to the modalities and the timetable for claiming them;
h) introductory and prescription time-limits have been introduced, fixed with respect to the action to set aside a debtor’s fraudulent transaction, in order to limit the disputes following the bankruptcy itself;
i) a simplified procedure for sharing assets has been introduced;
j) any possibility of early closure of the bankruptcy proceedings by means of economic agreements (agreement with creditors or any similar instrument) has been favoured;
k) the possible recuperation of the defaulting business or the improvement of the situation of the bankrupt have been favoured, in particular, for the former, by increasing the chances for the business to continue its activities and for the latter by the possibility for the bankrupt to have personal debts which remained unsatisfied at the end of the bankruptcy proceedings, deleted if the bankrupt has co-operated and allowed the proceedings to be expedited (esdebitazione);
l) the possibility of immediate closing of proceedings in the event of insufficient assets has been foreseen;
m) controlled administration has been abolished: this caused a delay of two years in the bankruptcy proceedings in the event it became clear it was impossible for the business to continue trading.

The reform extended the chamber proceedings to proceedings following from the bankruptcy proceedings, since the chamber proceedings are faster and less complicated proceedings, but preserve the adversarial aspect and the principle of equality of arms.

According to the information provided by the Ministry of Justice, the reform led to a significant reduction of petitions filed to obtain a bankruptcy declaration and, therefore, of the bankruptcy proceedings opened. Moreover, as far as expedition of pending proceedings is concerned, the reform has already shown positive effects with respect to the phase of auditing claims, which has been substantially reduced.

Due to the fact that the reform, under Article 150, applies only to proceedings introduced following its entry into force (16 July 2006) and that statistics available stop at 2007, it is not currently possible to collect information on its effects on the following phases of the bankruptcy proceedings. This information will be provided as soon as it becomes available.

Statistics on bankruptcy proceedings

Table No.1 shows the evolution of the number of bankruptcy petitions filed in all the Court of Appeal’s districts for the period 2003-2007.
Table No.2 shows the evolution of the number of declarations of bankruptcy as a consequence of the first reform and of the most recent definition of the bankruptcy criteria.
Finally, the application of the new bankruptcy procedure has shown that the length of the preliminary phase of bankruptcy remained unchanged, while the phase of auditing claims has been drastically reduced by concentrating it in a single hearing.

1: Number of bankruptcy petitions filed before first instance courts for each Court of Appeal’s district
Period: 2003-2007

2: Number of declarations of bankruptcy before first instance courts for each Court of Appeal’s district
Period: 2003-2007

Mean duration of proceedings (in days)

¹ Adopted by the Committee of Ministers on 19 March 2009 at the 1051st meeting of the Ministers’ Deputies