|
...within the Italian legal system. It shows that reform suggestions rarely have a positive effect on all three dimensions at once, regardless of whether the reforms are structural, process, or resource--related.
'My travels led me to embrace--in retrospect--an odd paradox: the further I moved from my original boundary, the more I learned about the place that I had left, and about its "civil procedure"'
Oscar G. Chase (1)
I INTRODUCTION
This paper is a critical analysis of certain aspects of civil procedural reform in Italy. The framework used to undertake that analysis is the 'dimensions of justice' model, utilised by Zuckerman (2) and Leubsdorf, (3) discussed in part II of this paper. These dimensions of justice--time, (4) cost, (5) and accuracy (6)--and their inter-relatedness are explained.
The Italian civil legal system is notorious for its delay, (7) with one commentator drawing the conclusion that it 'is largely useless to citizens who ask for justice'. (8) Moreover, it has been concluded that civil procedural reform has been largely unsuccessful. (9) One of the aims of this paper is to test these assertions.
In part III of this paper, the effects of various law reform activities within the Italian legal system over the last ten years are analysed from the perspective of practicing lawyers. Similarly, some of the law reform initiatives proposed by those lawyers are analysed in part IV using the same framework.
The final part of this paper draws some key conclusions from the analysis:
* In today's legal system, it is rare to find a law reform activity that will positively enhance all dimensions of the quality of justice at the same time.
* Based on this, any state administration will necessarily emphasise the importance of one of these dimensions of the quality of justice compared with the others.
* The necessary trade-offs in the dimensions of the quality of justice become political in nature.
II DIMENSIONS OF THE QUALITY OF JUSTICE
A Introduction
The "quality of justice" is merely shorthand for expressing the concept of the quality of the service provided by the state in delivering a justice system to resolve legal disputes, where that quality is perceived from the perception of the users of the system--the disputants. Critical assessment of the quality of service, and of any likely positive or negative effects that civil procedural reform may have, is more easily undertaken from a practical perspective when broken down into a number of dimensions.
B The Time Dimension
The time dimension of the quality of justice is probably the most straightforward, and commonly understood by the saying "justice delayed is justice denied". This most recognisable measurement of this, especially when comparing common law and civil law systems, is the elapsed time between the formal commencement of an action and its final--that is non-appealable--determination.
In civil law systems, the time dimension tends to match the time taken to complete a series of hearings. In contrast, common law litigation is broken up into two parts--pre-trial and trial processes.
C The Cost Dimension
Cost is the dimension that is most frequently affected by procedural reforms. As will be seen below, it is also heavily affected by reforms to the other dimensions. Costs fall clearly into two categories--the expenditure by parties in pursuing and defending legal actions, and the overall costs absorbed by the government in providing the public civil litigation infrastructure. (10) Legal aid represents a cost-shifting exercise from litigants to the government, and court fees act in reverse--shifting costs from the government back to litigants. (11) The fact that there are two sets of costs, which over time may be shifted between the government and litigants, means that a safer analysis may be undertaken by grouping both of these, and discussing them under the general heading of "cost".
D The Accuracy Dimension
In contrast to both time and cost outlined above, the accuracy dimension is a highly qualitative factor. Bentham has identified the dimension of justice where the court has to determine the true facts and then correctly apply the law as 'rectitude of decision', (12) whilst Zuckerman has described this as 'a just procedure'. (13) Davies J, writing extra-judicially, has referred to the combined concepts of 'accuracy of result and fairness of procedure'. (14) The term that will be used here, which reflects the objectiveness of the concept is 'accuracy'. (15)
Another aspect of accuracy is that in the context of a civil matter, the resolution of that matter by a judge 'will not be a determination of truth in an absolute sense, but only that one version is more probable than another'. (16) In contrast to the criminal process, in practice the civil process tends to be more focused on the truth and correctness of a plaintiff's claims, rather than the "objective" truth in the interests of society. (17)
E The Inter-relatedness of the Dimensions
Each of the dimensions outlined here does not exist in isolation; they are all interrelated. (18) For example:
* Time affects accuracy. If a matter is protracted over a number of years, that quality of witness testimony erodes, which may affect the finding by the court. A matter which is disposed of very quickly may not permit a full investigation of the relevant issues of fact and law and this may not justify a finding by the court that could be considered to be accurate. Also, the concept of a Statute of Limitations may be seen as a direct compromise between time and accuracy. Of specific relevance here is the recent recognition within the Italian Constitution (19) of the relationship between the "due process of law" (giusto processo) and having no reasonable delay. (20) The term 'reasonable' draws its significance from its use in the relevant European Convention that some litigants have relied upon when seeking redress from the Italian government due to protracted delays in the legal system. (21)
* Time affects cost. A matter that is protracted can accumulate substantial costs by the parties as the matter is reviewed a number of times by professionals who charge fees. In addition, the court system can accumulate costs as it must continually re-visit old ground over the life of a matter. The aggrieved party who is out of pocket due to the substance of the litigation may have associated opportunity costs that will have an increasing effect over time--the financial compensation that they might have been awarded could have been used to invest in income-producing or capital growth investments.
* Cost affects accuracy. A system that costs too much for parties to pursue matters to their conclusion denies access to a means of resolving matters according to the objective truth; a barrier to the commencement or continuation of litigation in the form of high costs can prevent potential litigants from pursuing their substantive rights. This is generally what commentators are referring to when the term "access to justice" is used with respect to civil procedure reform. (22)
* Cost affects time. A legal system that has very low entrance costs may means that an increasing number of litigants may enter the system, delaying the hearing of cases where no court resources are added to compensate for the increased workload. Note that if sufficient court resources were added to avoid an adverse effect on the time dimension, additional costs would accrue in the court system.
* Accuracy affects time. From the perspective of accuracy, the investigation and hearing of absolutely all evidence relevant to reach what may be considered an accurate decision in a particular case may take a long time.
* Accuracy affects cost. Similar to the accuracy/time concept above, the full investigation and hearing of evidence necessary to achieve accuracy could entail more labour and associated expenses, and thus will come at a cost to both the court system and litigants.
A key implication that comes from the inter-relatedness of the dimensions is that it is not possible to positively affect one of these dimensions without adversely affecting one or more of the others. This is a tentative conclusion that will be revisited after consideration of practical examples of reform initiatives. Furthermore,...
NOTE: All illustrations and photos
have been removed from this article.
Looking for additional articles?
Search our database of over 3 million articles.
Looking for more in-depth information on this industry?
Search our complete database of Industry & Market reports by text, subject, publication
name or publication date.
About Goliath
Whether you're looking for sales prospects, competitive information, company
analysis or best practices in managing your organization,
Goliath can help you meet your business needs.
Our extensive business information databases empower business
professionals with both the breadth and depth of credible,
authoritative information they need to support their business
goals. Whether it be strategic planning, sales prospecting,
company research or defining management best practices -
Goliath is your leading source for accurate information.
|
