Justice: here is the reform needed to reduce trial times

The 19th acquittal of Bassolino brought to the fore the tragic condition of justice in Italy. We all share the relief for those who have seen their innocence established and their credibility restored. But after 17 years of trials. This is a denial of the human right to justice and the European Court of Human Rights condemns Italy to repay the victims of these indecent delays. Except that the trials in Italy to establish compensation for excessive length of trials end up incurring in turn the procedure for unreasonable length of trial!  

After the relief for the victim comes the questions: how can we ensure that these cases do not happen again? That is, what sanction can be expected from the self-governing body of the judiciary, the Superior Council of the Magistrates (CSM)? And the answer is “no sanctions”. Unless there is a profound reform of criminal and civil justice and of the CSM.  

What is needed to reduce process times? 

1. align with the best practices of the specialization of lawyers that even in Italy they should choose, as in other countries, whether to plead before the Court of Cassation or before the courts and the appeal. We have 55.000 lawyers authorized for the Cassation against 100 in France and less than 50 in Germany. With the specialization of lawyers, they themselves select the appeals to be dealt with in the Supreme Court.
2. set up a two-year post-university course with a final exam for qualification to practice before the Cassation (law proposal presented in 2012 by the then Minister Severino). 
3. modify not only the electoral system of the CSM, but also its functioning by restoring the career based on professional merits.

The solution to the unpredictability of the sentences which disrupts both businesses and families. The unpredictability also depends on the fact that the Cassation, which has the task of guiding the interpretation of the laws, instead deals with fines and condominium lawsuits. Consequently, 400 Cassation judges, needed to deal with the 80.000 cases a year, instead of ensuring the uniformity of the jurisprudence, issue a number of often contradictory sentences which leaves the window open to every appeal and its opposite. In other words, the 600.000 cases a year that are poured into the courts.  

Because spending on justice in relation to GDP is higher in Italy that in France, Ireland and almost all the Nordic countries (CEPEJ 2018), all countries in which trial times are a fraction of those in Italy, the solution is not in the budget to be made available to justice. Instead the solution lies in the spending quality: digitization and datacenter on the one hand, court management on the other improve performance. With the help of the legislator, the collection of data on the results of the judges in carrying out the trials, the unreformed sentences on appeal, etc. can be included in the personal files which are the only source of information allowed for executive positions and for election to the CSM. 

Management courses are good, but it is necessary to introduce managerial capacity requirements in the choice of court managers. The quality of the sentences counts: judges whose sentences are annulled in the Cassation or totally reformed on appeal in a percentage clearly higher than the national average should be deny the four-year suitability judgment.  

Therefore, the CSM is the third key point: if made up of currents – whether the members are from the judiciary or from politics it makes no difference – it does not sanction anyone, each current defending “its own”. Therefore, the draw for establishing the members of the commission for appointments to managerial positions was excellent while the wounds of recent scandals were being healed, but to regain credibility in the role of regulator of the judiciary, the CSM must leave the corporate-union corner in which it closed and restore career for professional merits.  

Alternative Dispute Resolution Methods can reduce the pressure on the courts if well organized like theBanking Arbitrator and Financial (ABF) which in a few years has come to receive more appeals than mediation and civil justice even though its decisions are neither binding nor enforceable. The high specialization of the members of the territorial colleges makes the difference. In mediation, a simple procedural change – not halting the proceedings if the defendant does not appear – could increase the cases resolved, which today are stuck at 30% of the proceedings started. Also to reduce the demand that falls on the judges, it is possible to resort to honorary judges with a special procedure for minor disputes.  

Finally, the backlog of 3,3 million cases needs to be reduced: Economic incentives should reward the entire judicial branch that achieves the backlog reduction targets. Tax incentives should reward all actors – lawyers included – of out-of-court settlements of pending cases. And recent graduate fellows can help in the disposal.   

Large law firms, which observe the flight of foreign investors in the light of the performance of the Italian justice system, estimate that i 3,3 million cases still in the courts immobilize well over 100 billion euros. A figure that if put back into circulation these days would give breathing space to private individuals, but also to the public sector for taxes on these activities, if they have not failed in the meantime. Yet these 100 billion euros are peanuts when compared to the lack of growth of the economy due to an inefficient justice system that discourages private and public investment, national and foreign.  

The European Commission has indicated justice reform as a priority for Italy precisely because of its effects on the stagnation of the economy. Brussels calls for a National Recovery and Resilience Plan (PNRR) that integrates institutional changes and investments in order to achieve results in the envisaged period. It is in the face of the results that funding is given. This was reiterated by the director general for reforms at the Commission, Mario Nava, recalling the difference between the PNRR and the cohesion funds. The reform currently discussed in Parliament does NOT address the causes of the inefficiency of civil justice in Italy and therefore will not achieve the result of trial times similar to other European countries and consistency of the sentences within the time frame of the recovery plan and will not be financed. 

The bill discussed in the House Justice Commission gets lost in one myriad of small, mostly procedural, code changes. It must be integrated with the three fundamental changes to the judicial system illustrated here to reduce trial times.  

More precisely, the rediscovered judicial efficiency will allow an increase in the size of companies, their participation in global value chains, an improvement in the delivery times of public works. So a positive impact on total productivity and therefore on employmentand, investment and long-run GDP (the one with which you pay off the debt). 

It would be criminal to waste the opportunity given to us by the EU to reform justice in order to start growing again. 

°°° The legal considerations of this article derive from the reports presented at the webinar of the Observatory on productivity and well-being (OPB) of the Tor Vergata Economic Foundation by A. Nappi, A. De Nicola and M.Bianco. The reports are available on the OPB website.