Yesterday the Chamber of Deputies definitively approved the draft law on the civil liability of magistrates with 265 votes in favour, 51 against and 63 abstentions. The League, Fi, Sel, Fdi and Alternativa Libera abstained. The M5S voted against. It is “a historic passage. Justice will be less unfair and citizens will be better protected – commented the Minister of Justice, Andrea Orlando -. We will evaluate the effects secularly and we are ready to correct some points. But I believe that the jurisprudence will be sufficient to clarify that many of the feared dangers have no confirmation".
'SNational Association of Magistrates, instead, "it's a bad sign, politics approves a law against magistrates" and this happens while "there is rampant corruption".
The new provision reforms the Vassalli law of 1988, while maintaining the approach of indirect responsibility: the citizen sues the State, which will have to take recourse against the judge. But compared to the Vassalli, there are some novelties: the possibility for the citizen to appeal is expanded; the economic threshold for compensation for damages rises, which can reach up to half the salary of the magistrate; the admissibility filter of appeals is cancelled; there is an obligation to take action even in the event of gross negligence and misrepresentation of the fact and of the evidence.
Here are the fundamental points of the reform (source: Ansa).
INDIRECT LIABILITY
The principle according to which it is the State that directly compensates for the damages of 'bad justice' remains firm, being able only in the second instance to make up for the magistrate. The citizen who has suffered unjust damage, in other words, will be able to exercise the compensation action exclusively against the State.
REFUND OBLIGATION
The retaliatory action of the State becomes mandatory. Compensation from the magistrate must be requested within two years of the conviction in the case of denial of justice or when the violation was caused by willful misconduct or inexcusable negligence. As for the extent of the compensation, the threshold currently set at one third increases: the magistrate will now respond with the annual net salary up to half. If there is fraud, however, the action for damages is total.
FILTER SUPPRESSION
No more preliminary admissibility checks of the compensation claim against the state. The 'filter' activity (verification of the assumptions and evaluation of manifest groundlessness) today entrusted to the district court is cancelled.
BOUNDARIES OF GRAVE GUILTY
The hypotheses of gross negligence are redefined and integrated. In addition to the affirmation of a non-existent fact or the denial of an existing fact, gross negligence will be triggered in the event of a manifest violation of the law and of Community law and in the event of a misrepresentation of the fact or of the evidence. Gross negligence will also be the issuance of a personal or real precautionary measure outside the cases permitted by law or without motivation.
MISREPRESENTATION FACT OR EVIDENCE
The parliamentary works, referring to a constitutionally oriented interpretation of the law, have clarified how the relevant 'misrepresentation' for the purposes of the magistrate's civil liability is only the macroscopic and evident one, such as not to require any in-depth analysis of an interpretative or evaluative nature.
SAFEGUARD CLAUSE
The scope of the 'safeguard clause' is redefined: while confirming that the magistrate is not called to answer for the interpretation of the law and the evaluation of the fact and the evidence, cases of willful misconduct are expressly excluded from this scope of irresponsibility, of gross negligence and manifest violation of the law and EU law.
