La justice reform discussed in Parliament it is not the answer to the recommendations of the European Commission to make the judicial system in Italy efficient. So it won't help to get the Recovery Plan accepted and to activate its grants, loans and subsidies. Let's see why, in the light of the revised guidelines just published by the Commission.
The Italian Recovery Plan has adopted in its premise justice and public administration reform as a priority. It is always easier to put the right choices into the premise than to specify the allocation of funds in a way that is consistent with priority. In the latest version, sent informally to Brussels, the combination of reforms and investments is finally present. But if you go to Component 1.1 on the digitization and modernization of the PA, for justice you will find the contents of the 2019 reform proposal under discussion in the Chamber. This reform, daughter of the CSM scandal, is presented as aimed at the efficiency of justice, measured by the time needed to obtain a sentence. For this purpose, in addition to the sprinkling of digitization and staffing which are equally distributed to all components of the Plan, the justice reform contains proposals to fix the hearing timetable and some minor procedural changes in the first instance process.
But is it in the first stage of the process that the delay with respect to the other EU countries accumulates? No. Comparisons between European countries, updated to 2018 by Cepej, show that the greatest delay is in Cassation: 1.266 days is the median time needed to close a civil case against a median time in Europe of 207 days. For the first degree process, 527 days are needed in Italy against 122 in Europe.
Given that the delays accumulate in the Cassation, why is there nothing that concerns it (apart from the backlog of tax litigation) in a reform that aims to cut trial times? We remember that Europe has just repeated to us that reforms they must be "substantial and credible", therefore they must identify and remove the causes of the inefficiency, both the timing of the proceedings and the uncertainty about the sentences. And the cause is common: the impossibility on the part of the Cassation to carry out its role as ultimate interpreter of the laws, due to the 80.000 cases that fall on the Cassation every year, produced by 55 lawyers who can plead before the Supreme Court.
The solution is the specialization of lawyers. This is "experience gained in other countries", a criterion mentioned in the Plan without applying it. Let's take a judicial system close to ours, with the same derivation from Roman law: France has 100 (one hundred) lawyers who can plead before the Supreme Court. Germany has fewer. In all advanced countries the Cassation can play its role of ultimate interpreter of the laws because – institutionally or customarily – few lawyers authorized to the Supreme Court themselves filter the cases worthy of discussion in the Court.
Freed the Court from traffic fines and condominium lawsuits, the interpretation of the laws will become unambiguous and the consequences will be two:
- uncertainty about the outcome of a lawsuit will disappear;
- the tsunami of more than a million lawsuits per year from civilians alone will cease.
It can be done simply by introducing it into the ordinary law which regulates the access of law graduates to the legal professions the option to plead before the Court of Cassation or as an alternative to the other two levels of judgement. The result will be short-term and will demonstrate Italy's seriousness in removing obstacles to growth and convergence with Europe.
In the longer term, the proposal in 2012 by the then Minister Severino to establish a two-year postgraduate course with a final exam for qualification to practice before the Cassation. For the efficiency of justice, which is measured in trial times, these are the known best practices. Not a "Process Office" mentioned by the Plan, given that, if we look for it on the official statistical website of justice, we get the answer “no element matches the search”: in spite of best practice.
The reform proposal adopted in the Plan recognizes that managerial capacity requirements should be introduced in the selection of court managers. As? It needs to be reintroduced a real evaluation of the judges and restore choices based on professional merits, collecting data on the performance of judges in the conduct of trials, the percentage of sentences reformed on appeal or annulled in Cassation if above average, to insert them in personal files which are the only source of information officially admitted for managerial positions and for the election to the Csm. There is none of that in the Plan.
The proposals for small procedural changes in the court of first instance and the small push for mediation contained in the reform project under discussion in the Chamber do no harm, but they cannot achieve the result of reducing trial times. One can only be amazed at the lack of a simple procedural change to mediation – do not stop the procedure if the defendant does not appear – which could increase the cases resolved today stuck to 30% of the proceedings started.
Instead the best practice consolidated in all the advanced countries of the specialization of lawyers would achieve the goal of reducing the time and uncertainty of justice, preventing the re-accumulation of millions of unsolved cases.
However, in order to include the specialization of lawyers and the evaluation of judges based on merit in the reform, it is necessary that our politicians make the difference between the funding of the Next Generation EU and the European cohesion funds their own. The famous 209 billion euros of the Recovery Fund require the achievement of the intermediate and final results of the reforms and investments within the established times. Only the advance is based on the approved Plan. While for the cohesion funds the statement of the costs incurred is sufficient. They are two different worlds.
Italy runs the risk, if not the approval of the Plan, of remaining with only an advance, which can perhaps satisfy the needs of some parliamentary groups, but certainly not restart the potential growth of our economy. In conclusion: we have two months to define the Recovery Plan with due attention to the quality of the reforms, the intermediate results and the implementation times, as Gentiloni recalls. Leaving aside for the moment the void of the governance of the Plan, given the three strategic axes and the six missions, including European ones, everyone can contribute with their skills in the recovery plan they must be precise in suggesting improvements or even profound changes to the components and projects. Only in this way can the Plan be modified if and when the politicians realize they have to act for the Next generation seriously, achieving the intermediate results, defined with numerical indicators, within the time frame needed to obtain the established objective. Because Europe will check that the funding is substantially needed for the recovery of the country and its social cohesion.
