Prepared by Elisabetta Caccavella, Alessandra Annicchino e Francesca Rottino
The Legislative Decree No. 149/2022, issued as an implementation of Delegated Law No. 206/2021, carried out a substantial reform of civil justice to be achieved in different timelines according to the recent Law n. 197/2022.
The new rules has entered into force, in part, on 1st January 2023, while the more substantial ones will be applicable, in two steps, from February, 28 2023, and from June, 30, 2023.
The main goals pursued by the reform are the simplification and speeding up of the civil proceedings in order to guarantee effective judicial protection.
The changes made to the Code of Civil Procedure applicable from1st January 2023 includes:
- the increase of digitization in the administration of justice allowing only electronic filing of briefs and documents;
- the generalised possibility of holding civil hearings by remote audio-visual connections (i.e. ‘remotely’) or replacing them with the filing of written notes;
- the abolition of the hearing called for the oath of the technical office consultant, replaced with a declaration executed by the same consultant with a digital signature containing the oath;
- the abolition of the so-called ‘filter section’ of the Supreme Court and the reformation of the procedure on the admissibility of the appeal;
- the possibility for the Judge to defer directly to the Supreme Court the decision of some issues of laws deemed as prejudicial;
- some innovations on the revocation of judgments.
Electronic filing of briefs and documents
With regard to the telematic civil proceedings, the legislator has intervened, on the one hand by crystallising the rules issued as a matter of urgency during the Covid-19 pandemic, and on the other hand by introducing some important innovations.
Among the latter is the generalised obligation to file all briefs and documents related to the judicial proceeding electronically for proceedings pending before the Court, Appellate Court and the Supreme Court.
As of 1st January 2023, therefore, only in the event of malfunctioning of the computer systems, the filing of paper briefs and documents can be admitted and authorised.
Hearings held by electronic means or replaced by written notes
The holding of the hearings themselves also changes. The introduction of Articles 127(3), 127 bis and 127 ter of the Code of Civil Procedure crystallizes two alternative ways of conducting hearings, which had already been tested during the emergency period and were also widely used afterward.
The judge is allowed to order the holding of the hearing by means of remote audio-visual connections (i.e. “remotely”) or to replace it by the filing of written notes (Article 127, paragraph 3 of the Code of Civil Procedure) provided that some specific conditions are satisfied (Articles. 127 bis and 127 ter of the Code of Civil Procedure).
In particular, the possibility of holding hearings by electronic means or in written form is allowed only where the presence of third parties other than the defence counsel, the parties, the public prosecutor, and the judge’s assistants is not necessary (for example, the hearing should therefore always take place in person in case of the participation of witnesses). The possibility for the judge to replace the in-person hearing with a written hearing becomes an obligation when the relevant request is formulated by all the parties.
Then, in order to balance the different needs that may be presented by the parties, Article 127 bis of the Code of Civil Procedure provides for the possibility of holding a ‘mixed hearing’, i.e. at the presence of the parties that have requested it and by electronic means for the others.
Proceedings before the Supreme Court
With regard to proceedings before the Supreme Court, as of 1st January 2023 the mode of so-called “filter” proceeding was carried out has changed.
Article 376 of the Code of Civil Procedure (in force until 31st December 2022) provided, in fact, that all appeals filed with the Supreme Court – with the exception of those falling within the jurisdiction of the United Sections pursuant to Article 374 of the Code of Civil Procedure – were addressed to an ad hoc section, the so-called “filter section”, only to assess their admissibility profile, as well as their manifest groundlessness or unfoundedness. Appeals that are not declared inadmissible returned to the First President of the Court who assigned them to one of the simple Sections of the Court for the decision.
The reform effectively abolished the ‘filter section’ and replaced it with an accelerated procedure for the resolution of inadmissible or manifestly unfounded appeals, entrusting the same judge to whom the case is assigned for the decision. In particular, if the judge – the so-called ‘filter judge’ – detects an issue of inadmissibility, manifest groundlessness or unfoundedness, he informs the parties thereof, leaving them the decision whether requesting for a decision on such issue in a closed session (“camera di consiglio”), or directly waiving the appeal.
The decision to waive the appeal is encouraged by excluding, in favour of the party who waives, the payment of a penalty. Such penalty (equal to the value of the so-called “contributo unificato” requested for the appeal and determined according to the value of the case) is requested indeed to the party asking for a decision in closed session (“camera di consiglio”) and whose appeal is declared inadmissible.
Among the other innovations in force since January 1, 2023, there is the introduction of the new Article 363 bis of Code of Civil Procedure, indexed as “prejudicial deferral”.
The judge of the merits, who is called to decide a peculiar question of law, already discussed with the parties, is entitled to directly submit the question to the Supreme Court.
Clearly this is not a generalized power, but such deferral may take place only when the legal issue is essential for the decision of the claim and it has not been determined by the Supreme Court in previous decisions, as well as when it presents substantial interpretative difficulties or it will likely arise in numerous proceedings.
Revocation of judgements
Revocation is an extraordinary remedy that allows an appeal against judgments issued on the basis of erroneous assumptions, even if already definitive.
The reform introduces a new provision, Article 391 quater of the Code of Civil Procedure, which provides for a new hypothesis of revocation of civil judgments, where violations of the European Convention on Human Rights ascertained by the European Court of Human Rights have been found to have caused prejudice to a so- called “state right” of the person (i.e. all those rights, public and private, pertaining to the person).
Such remedy may apply provided that the following two conditions are met:
- the European Court of Human Rights has awarded the plaintiff a “just satisfaction”;
- nevertheless, such “just satisfaction” is deemed as inadequate to fully compensate the plaintiff for the consequences of the ascertained violation.
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