Overloaded justice system ties Italy in knots

ROME Thu Apr 5, 2012 2:14pm IST

Lawyers stage a protest in front of the Justice Palace in Rome March 15, 2012. REUTERS/Alessandro Garofalo/Files

Lawyers stage a protest in front of the Justice Palace in Rome March 15, 2012.

Credit: Reuters/Alessandro Garofalo/Files

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ROME (Reuters) - Falsifying a one euro bus ticket in Italy is a criminal offence eligible for a full trial and two appeals that would cost the state many thousands of euros.

The U.S Supreme Court reviews around 100 appeals per year. The number for Italy's top appeal court, serving a population a fifth the size? More than 80,000.

Italy has 40,000 lawyers specialising in supreme court cases. According to Valerio Spigarelli, head of Italy's top criminal lawyers body, the number in neighbouring France, with a similar population, is 25. They are among 240,000 lawyers in Italy, compared to 54,000 in the country next door.

Statistics like this give a glimpse into a chaotic, byzantine legal system which not only reduces citizens to despair and has senior judges tearing out their hair, but acts as a serious disincentive to foreign companies planning to invest and a powerful brake on the euro zone's third economy.

Everything from a simple dispute among tenants of an apartment block to attempts by Prime Minister Mario Monti to revive Italy's stagnant economy are at the mercy of a system that can delay final judgement for many years.

One of the criticisms of Monti's plans to reform the labour market is that they will involve even greater recourse to notoriously slow moving courts to settle disputes.

The average time to settle a civil case in Italy is more than seven years and a criminal case nearly five. And except in the most serious criminal cases, those found guilty will not be jailed until they have exhausted the appeal process.

Yet wholesale legal reform is not on the agenda of Monti's technocrat government. The problem is just too big to tackle in a brief mandate set to end with elections expected next spring.

Paola Severino, one of Italy's top lawyers, told parliament last November shortly after becoming justice minister: "It would be mistaken, given the limited duration of this government, to put legal reform at the centre of our programme. It would be beyond our strength and possibilities."

You can hardly blame her.

HUGE BACKLOG OF CASES

There is a backlog of around nine million cases, 5.5 million civil and 3.4 million criminal.

Italy is the fourth most litigious of 38 European countries with 2.8 million new cases being brought last year alone.

The state paid 84 million euros in compensation for miscarriages of justice and legal delays in 2011. There were nearly 50,000 such claims compared to 3,500 in 2003. Another 46 million euros was paid out to people unjustly thrown in jail.

Some 42 percent of those in jail or 28,000 people, are awaiting trial and the prison population is 68,000 in institutions intended to hold 45,000.

U.S. Chief Justice John G. Roberts could not believe how many cases were brought before Italy's supreme Court of Cassation each year, said Michele Vietti, vice president of Italy's top magistrates body the CSM, describing a recent visit to Washington.

"He thought he hadn't understood the translation properly," Vietti told Reuters.

At the centre of Italy's legal woes are a failed reform in 1988 intended to streamline the system and rules making full prosecution compulsory for a long list of comparatively minor offences which many lawyers say should be decriminalised.

Banal civil cases that in most countries would never get to a full court, in Italy drag on interminably because the system is so inefficient and can be manipulated by the unscrupulous.

In Milan's central Viale Beatrice d'Este, the 25 tenants of an apartment block have been vainly trying through the courts for more than 20 years to recover the monthly maintenance costs from two brothers owning an office in the building.

A court ruling against the brothers was followed by four attempted auctions of the shop, the latest last month, in a judicial procedure to recover the money. They all failed as the case sinks deeper into a legal quagmire.

The debt for unpaid maintenance charges, originally about 7,500 euros, now totals 100,000.

"We are resigned to it now. We will try to move forward but we believe there is no effective judicial protection," said Silvia Lanata, 46, one of the tenants.

Pier Camillo Davigo, a distinguished judge and former prosecutor in Milan's anti-corruption unit, expresses the frustration felt by many magistrates.

He says a 2001 reform decriminalised many offences including challenging someone to a duel, but left others on the statute book like falsifying a bus ticket, punishable by a year in jail.

"INSANE"

"This is horrible. These are people who use an eraser to rub out the stamp on a metro ticket so they can use it again. It is insane. For a one euro bus ticket we have three trials."

Davigo said because people committing this kind of offence were normally poor, a state defender would be appointed at a fee of 3,000 euros and could demand a forensic examination of the ticket costing a further 1,500 euros.

Davigo said that when he was an appeal court judge, "I thought, 'Why don't I just give one euro to the transport company and we can stop this?' But you can't because a criminal prosecution is compulsory in this case."

Like many magistrates, Davigo thinks the key to the problem is decriminalising many offences to reduce crimes requiring a full trial and encouraging a fast track lower court process.

A new penal code in 1988 introduced a series of alternative legal processes to deal with less serious offences in an attempt to copy aspects of the U.S. and British systems.

Davigo borrows a medical metaphor to explain that it didn't work. "Transplants nearly always provoke a crisis of rejection," he said.

He added that the Anglo-Saxon systems encourage offenders to plead guilty in return for a lighter sentence, streamlining the system. "They have no interest in wasting time, the exact opposite of what happens in Italy."

Here an appeal court cannot increase a sentence and there is always hope of exploiting a generous statute of limitations. In addition, only those found guilty of the most serious crimes go to jail before appeals are exhausted.

"So why wouldn't an accused person appeal?" Davigo asks.

All this creates more chaos at the apex of the system, the supreme Cassation Court, which is presented with 80,000 new cases each year. Davigo says this is 100 times more than France or Germany.

Reformers want far more stringent limitations on the admissibility of appeals to the highest court, as in other countries.

"The Cassation is submerged by so many cases that it cannot even ascertain contradictions within the system," said Davigo, who is now a supreme court judge. He added there was no law of precedent because the judges could not read all the cases.

"For 40 years I have watched as the number of cases and sentences increases. I feel like a juggler who adds every day to the number of balls in the air," he said.

DESPAIR

Other magistrates are just as despairing.

Under the governments of scandal-plagued media magnate Silvio Berlusconi - replaced by Monti last November - the statute of limitations was shortened for white collar crimes, especially for corruption where it was cut in half to 7 years in what critics said was a favour to the prime minister.

He has escaped six fraud and corruption cases that ran out of time since 1999.

"Each year in this country 169,000 trials are pulped...the statute of limitations frustrates the whole justice system," says the CSM's Vietti. "The statute has a perverse effect on the length of the process. The defence is all aimed at delay so as get this result rather than a sentence," he said.

Alfredo Robledo, who now leads the Milan anti-corruption unit, agrees: "In court, all I see are lawyers who raise objections, who are aiming for the statute of limitations."

Reformist magistrates recommend fines and social work instead of imprisonment for minor crimes to ease jail overcrowding, more mediation and conciliation in civil cases, and a rationalisation of 2,000 judicial offices spread across the country in a system dating from the 19th century - something also being pushed by Justice Minister Severino.

But even a modest attempt to extend compulsory conciliation for minor civil cases is opposed by lawyers organisations who have taken their objections to, where else? The supreme court.

(Additional reporting by Emilio Parodi in Milan)

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