With the "Legge di Stabilità 2016" (Act No. 208 of 2015), our Legislator has again intervened on the Law in the epigraph introducing important innovations, all undeniably aimed at limiting public expenditure resulting from the infringement of the term of reasonable duration of the trials.
This modus operandi was translated, in particular, into the introduction of art. 2, according to which “E’ inammissibile la domanda di equa riparazione proposta dal soggetto che non ha esperito i rimedi preventivi all’irragionevole durata del processo”.("The request for equitable redress proposed by the person who has not carried out the preventive remedies for the unreasonable duration of the trial" is inadmissible ".)
The legislative intervention, therefore, if on the one hand recognizes to every part of a trial “il diritto a esperire rimedi preventivi alla violazione della Convenzione” (art. 1-bis) ("the right to experience preventive remedies to the violation of the Convention" (Article 1-bis)), on the other hand expressly provides that the same party must necessarily use such instruments if it intends subsequently to request fair compensation.
It is evident that this provision actually undermines the effectiveness of the remedy provided for by law no. 89 of 2001, to the point of giving rise to many doubts about its compatibility with the requirements in this regard required by the European Convention on Human Rights and fundamental freedoms.
However, the provision pursuant to art. 6, paragraph 2-bis, also introduced with the short story commented and entitled "Transitional standard", pursuant to which “Nei processi la cui durata al 31 ottobre 2016 ecceda i termini ragionevoli di cui all’art. 2, comma 2-bis, e in quelli assunti in decisione alla stessa data non si applica il comma 1 dell’articolo 2” ("In the processes whose duration to October 31, 2016 exceeds the reasonable terms pursuant to art. 2, paragraph 2-bis, and in those taken in decision at the same date paragraph 1 of article 2) does not apply and, therefore, the completion of the preventive remedies will not constitute, yet, condition of admissibility of the request for equitable reparation .
Returning to the preventive remedies introduced by the recent novel, particular merit deserves the combined provisions of the articles. 1 bis and 1 ter of the Law in question, ex novo introduced by the Stability Law for 2016 and entitled "Remedies to the unreasonable duration of the trial" and "Remedies for preventive measures" respectively.
These are procedural instruments that the parties have the "power" (burden) to activate to contain the excessive duration of the process but whose fulfillment, pursuant to the aforementioned article 2, it is raised on the condition of admissibility of the subsequent request for equitable reparation.
Regarding the civil judgments, the framework of preventive remedies provided for by art. 1-ter of the Pinto Law, in itself not suitable for ensuring a reduction in the duration of the presupposed judgments, can be summarized as follows:
Introduction of the judgment in the forms of the summary process of cognition referred to in articles. 702 bis and following of the Code of Civil Procedure;
- Request for passage from the ordinary rite to the summary rerum pursuant to art. 183 bis before the hearing and, in any case, at least six months before the term of reasonable duration of the trial has expired;
- In cases in which the summary rite, including appeals, is not applicable, proposition of the request for decision following an oral procedure pursuant to art. 281-sexies C.P.C. at least six months before the duration of the process exceeds the reasonable time limit;
- In cases in which the Court judges in collegiate composition, finally, the investigating Judge when he considers that the case can be decided following an oral procedure, pursuant to art. 281-sexies C.P.C., puts the case back to the college setting the collegiate hearing for the clarification of the conclusions and for the oral discussion.
As already suggested in the introduction, the provision - behind the apparent recognition of a faculty - of the necessary completion of the remedies on exposed in view of proposing an appeal for fair reparation not only undermines the effective exercise of the right guaranteed by article 6 of the ECHR, but is likely to contract significantly the right of defense (fundamental right recognized by Article 24 of the Constitution), especially in the part where it imposes, in fact, the introduction of a judgment in summary forms (with all the obvious repercussions negative and potentially detrimental to the point of investigative activity) in order not to preclude the possibility of subsequently requesting fair compensation if the duration of the presumed judgment exceeds the reasonable time limit.
In conclusion, precisely for the reasons explained above and in light of the clear unsuitability of the preventive remedies expected to ensure a reduction in the timing of justice, many doubts raise the legislative will to increase the performance of these instruments on condition of admissibility of the application for fair repair, with consequent considerable doubts as to the constitutionality of the changes introduced, as well as their compatibility with Community law.