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Contini, Francesco --- "The Never-Ending Crisis of Italian Justice: Role and Responsibility of Its Governance System" [2023] LawTechHum 12; (2023) 5(1) Law, Technology and Humans 153

The Never-Ending Crisis of Italian Justice: Role and Responsibility of its Governance System

Francesco Contini

National Research Council of Italy (IGSG-CNR), Italy

Abstract

Keywords: Judicial governance; judicial reform; procedural delays; administration of justice.

Introduction

For more than 30 years, the Italian justice system has experienced a crisis that has exacerbated over time. In addition to the problem of court delays—which date back to the 1950s^[1] and have worsened over the years as certified by statistics and sanctioned by countless European Court of Human Rights decisions—critical areas include poor predictability of judicial decisions, low trust in court, and rising integrity issues. A crisis that endures decades without being solved is a promising case to be discussed in a seminar series investigating conditions critical to the environment, institutions and society.^[2] By definition, critical conditions cannot last long. They either go towards recovery or death. This final epilogue, obviously, cannot occur for an institution representing one of the state’s branches. Still, the oxymoron of an enduring condition critical justifies an investigation into its features and origins. The endurance of the crisis can hardly be associated with contingencies, like budget cuts, increased litigation or judicial corruption. When a crisis becomes endless and does not evolve despite uncountable reforms, it represents the system’s equilibrium point—hence, a stable state. The crisis is instead connected to the basic features of the system, the institutional setting and the governance.

Even if the reasons for the crisis are multifold and cannot be explained by a single reason, this paper argues that the governance of the Italian judiciary is a relevant factor to be considered. Indeed, its governance functions split between the Ministry of Justice, and the Judicial Council can hardly face the complexity and challenges of the current administration of justice. It is the case of effective management of available resources, performance evaluation, digitisation and procedural justice—thus, the contemporary toolkit of judicial administration. Hence, the reasons for the crisis are deep and can be traced in the very institutional setting of the judiciary.

The main aim is to introduce the growing complexity of the administration of justice in the judicial governance debate, looking at the consequences of having the governance of the third branch shared between two different institutions. Based on the Italian case, this paper considers the roles of the Ministry and the Council. However, the issues discussed can occur any time judicial governance entails a joint effort of two bodies, as in the case of a ministry and a supreme court. The goal is limited to discussing an issue not adequately considered in the judicial governance debate. The suggestion of alternative governance mechanisms, the cutback of the functions of the councils, or the endorsement of the ministerial model is not the aim of this work.

Since this work is part of a more extensive investigation of conditions critical of institutions and systems, the argument is developed starting from the multiple failure points of the Italian judicial system. This broad assessment helps to discriminate between critical areas not directly connected to the dual governance structure (poor predictability of judicial decisions, judicial integrity, low trust in courts, and the perceived independence of judges) and those directly affected. The paper states that while dual governance does not account for all of the critical conditions identified, it holds strong significance in resource management, court organisation and digitisation.

The research follows a qualitative method, based on literature and secondary sources analysis, to examine the issues more strictly related to the rule of law. Statistical data analysis informs the discussion of the issues of legitimacy, timeliness of proceedings, and management of resources. A statistical Appendix provides data of a higher granularity. Despite the use of quantitative data, the paper does not follow the law and economics approach. Statistics are just used to describe the system’s evolution in terms of efficiency, effectiveness and legitimacy through plain indicators commonly used in the judicial reform debate.

The paper first presents the judicial governance debate focusing on the councils’ role, to connect the findings with the broader discussion. Then, after introducing the main features of the dual governance structure of the Italian justice system, the paper discusses critical areas not directly connected with the dual governance structure: predictability, integrity and legitimacy. The following analysis of the length of proceedings and the use of available resources highlight the limits of the dual judicial governance in facing the current challenges of judicial administration. The conclusion summarises and reconnects the findings with the judicial governance literature.

The Rise of the Councils between Judicial Independence and Accountability

The dual governance structure with a ministry and a council mandated to manage the recruitment, appointment, career and discipline of magistrates^[3] is considered the gold standard for judicial governance.^[4]

The Council of Europe recommendation Judges: Independence, Efficiency and Responsibilities (Chapter IV), the Magna Carta of European Judges (para. 13), and the Venice Commission’s Rule of Law Checklist (para. 81)^[5] state that—even if other arrangements are acceptable—councils are the most effective way to ensure external independence in decisions regarding the status of judges. The model has been adopted by many civil law countries and transplanted across Eastern Europe during the European Union (EU) accession process.

Several comparative analyses have investigated the rise of the councils in Europe,^[6] while studies challenging their raison d’être and effectiveness in protecting judicial independence fuelled the debate. A first radical critique of the traditional approach touches on the protection of judicial independence, the very rationale of the councils. From a principal-agent perspective, judges are agents who exercise power on behalf of a principal (society). This setting gives rise to well-known issues like information asymmetry and lack of accountability, fixed by establishing a board between the principal and the agents. In private companies, shareholders (principals) establish directors’ boards to monitor the managers (agents); in the judicial sector, councils are created to manage the status of judges, reduce information asymmetry and establish accountability mechanisms.

Further, when councils are representative of society and judges, they can become an intermediary trustee whose role is to exercise expert oversight and filter out political influence.^[7] Hence, while conventional wisdom states that judicial councils are established to protect or enhance independence, Garoupa and Ginsburg argue that the fundamental institutional reason behind the rise of the councils is to address the principal-agent issue.^[8]

Other studies cast doubt about the capacity of the councils to balance independence and accountability,^[9] or to criticise the councils’ capacity to effectively protect judicial independence and the rule of law.^[10] Even court efficiency appears negatively correlated with the role played by judicial councils, particularly those belonging to the French tradition,^[11] in which governance is split between a ministry and a council. However, judicial governance is more complex than having or not having a council. A more nuanced approach emphasises how the different judicial governance competencies can be split between a ministry, a council and other bodies in different ways, leading to various degrees of judicial self-governance.^[12] For instance, the Dutch Council joins up the functions that the Italian Constitution assigns to the Council and the Ministry, including financial management and digitisation.

However, this growing stream of research underestimates the complexity of judicial administration. Court digitisation and governance are entangled.^[13] IT systems guide judicial behaviour and automate procedures that reduce judicial discretionality, and this may affect independence. Given the required financial investments and their capacity to structure and streamline court proceedings, IT systems must be systematically used also by judges. This objective can be hard to implement if the ministry has financial duties and the lead on IT development, while the council is asked to promote the system’s adoption through the judiciary.^[14] It is the long-term coordinated effort required to implement such changes that dual governance systems can hardly achieve. The discussion of these issues requires an introduction to the fundamental institutional features of the Italian justice system.

The Italian Justice System

The architecture of the ordinary judiciary^[15] is a classical three-tier court system, with the Court of Cassation at the top, 26 courts of appeal, 140 courts of general jurisdiction dealing with civil and criminal cases (Tribunale) and 29 juvenile courts handling cases involving minors.^[16] Other courts include the surveillance courts, which supervise the execution of criminal sanctions, and 441 Justice of the Peace offices, in which non-professional magistrates decide minor cases. Prosecutors’ offices are attached to the Court of Cassation, appeals, courts of general jurisdiction and juvenile courts. Both judges and prosecutors belong to the magistracy (magistratura) and, as members of the same body, are called magistrates (magistrati). However, this work will focus just on judges and the judiciary.^[17]

The Constitution designs a dual governance structure with functions entrusted to the Ministry of Justice and the Judicial Council (Consiglio Superiore della Magistratura). Article 110 assigns to the Ministry of Justice the organisation and functioning of judicial services such as financial provisions, procurement and human resources including court managers, ICT development and deployment, and facilities. Hence, the Ministry’s primary functions are handling the general budget,^[18] resource allocation to courts, human resource management for non-judicial personnel, and ICT development. The Ministry also has fundamental policy-making functions and the power to issue by-laws and decrees regulating matters assigned by the Constitution.

Article 105 of the Constitution entrusts the Council with the functions of selection, assignment transfers, promotions and disciplinary measures of judges and prosecutors to the Judicial Council. This body is composed of 33 members. Twenty are judges and prosecutors elected by their colleagues, and ten are law professors or lawyers with at least 15 years of experience in the legal profession, elected by the Parliament. The three remaining components are permanent (ex-officio) members.^[19] Each member remains in office for four years, and members cannot be immediately re-elected.^[20]

The Judicial Council handles the transfer from one court to another, the assignment to the different judicial functions, the warrant to an extrajudicial activity (e.g., secondment to a job in the executive branch, teaching, and consultant activity for an international organisation), individual performance evaluations, and the appointment as head of a judicial office.^[21] All the decisions are taken following the majority rule.

The functions assigned to the Ministry and the Council reflected the features of judicial administration in the aftermath of World War II when the Constitution was written. At that time, the day-by-day management of courts was much more straightforward than experienced today. Managerial techniques were yet to come, digitisation was not even imaginable, and people’s trust in judges and courts was not an issue. Clerks, judges and lawyers were working with pencil and paper. The ‘judicial services’ mentioned in the Constitution were provided by clerks and assistants in charge of registration, service of documents, assistance to the judges, typewriting and, essentially, ordering papers.^[22] Court organisation, random case assignment and case management did not exist. Organising judicial services was straightforward: the simple and automatic consequence of applying formal rules and supervising the registries through the hierarchy. The real issue was to guarantee the effective separation of powers and protect judicial independence from undue influences,^[23] particularly those of the executive. Assigning the management of the status of judges to the Council was a practical move to encapsulate such a critical function in a body that—with two-thirds of its components being magistrates elected by other magistrates—was not easily influenced by the Ministry.

Predictability, Integrity and Legitimacy: A First Comprehensive Assessment

The framework in which justice was administered when the Constitution entered into force 75 years ago radically differed from the one in place now. This section starts the investigation by considering a first set of critical areas not directly linked to the dual governance structure: the role of the Court of Cassation in assuring uniform and predictable jurisprudence, and the distrust of citizens for courts and judges.

With 70,000 incoming cases in 2020, the Court of Cassation is charged with a flow of new proceedings not comparable with other European countries such as France, Spain and the Netherlands.^[24] The Court is composed of 385 judges organised into 13 departments; in each department, there are several chambers and presiding judges. Overall, Cassation is the biggest supreme court in Europe. Standardising the number of supreme court judges per inhabitant, the number of judges is four times higher than in the Netherlands and Spain, and 60% higher than in France. Despite being oversized compared to similar courts, the number of incoming cases per judge is two times higher than in France and 60% higher than in the Netherlands.^[25] From a statistical perspective, the outcome is a disposition time of 1.526 days in civil cases and 237 days in criminal cases compared to 485 and 146 in France.

Data do not show, but make it understandable, how the massive caseflow and the same scale of the Court make it challenging to have a relatively stable and consistent jurisprudence.^[26] The idea that the Court cannot guide the decision-making of the lower courts with credible and well-argued decisions but delivers contradictory jurisprudence even within the same chamber is spread across the legal community.^[27] Further, due to the slow pace of proceedings, when a new legal framework must be applied, the lower courts (and the courts of appeal) have to adjudicate cases without knowing the jurisprudential orientation of the Cassation for several years. This lack of consolidated jurisprudence can further raise the entropy of the system. Indeed, legal uncertainty is a rationale for filing new disputes at any court level, from the first instance to Cassation. Uncertainty fills up litigation, and, in turn, litigation feeds up uncertainty. As recently noted by Aniello Nappi, ‘the Court of Cassation can have the guiding role of interpretation, just if it shows the ability to express itself in unitary and recognisable guidelines [decision], which can only be obtained if the Court’s interventions are reduced in numbers’.^[28]

Recent scandals made visible to the public two different issues of judicial integrity: the political bargaining for appointing the apexes of courts and prosecutors’ offices, and several corruption cases involving magistrates. The phenomenon of political bargaining is not new.^[29] However, the scandal was fuelled by the discovery of clandestine meetings among current and former members of the Council and of the Parliament to influence the appointment of the chief prosecutor of Rome, along with thousands of WhatsApp messages showing plots and negotiations to assign top positions. In turn, this prompted calls for radical reforms. The case was sensational because one of the politicians involved—under investigation by one prosecutor’s office—tried to influence the appointment of the chief prosecutor of that office.^[30] In addition to this political bargaining, there are several cases pointing to a lack of integrity and judicial corruption. Recent cases range from bribes paid to release members of criminal organisations from pre-trial detention,^[31] to petty corruption such as the exchange of judicial influence through sexual favours,^[32] to judges routinely not paying for bills at restaurants.^[33] Now the phenomenon is openly criticised in public debate and popular pamphlets,^[34] and not just discussed in academic or professional publications.^[35] While it is hard to identify a trend showing growth or reduction of judicial integrity, it is clear, and of the public domain, that a problem exists. It entails political bargaining within the Council and judicial integrity.

The legitimacy of judicial officers, courts and the entire system is usually evaluated with court users’ surveys assessing the service delivered^[36] and procedural justice,^[37] or surveys addressed to the general public to check trust in judicial institutions.^[38] Surveys are essential because they identify service delivery strengths and weaknesses and help identify measures to design justice services centred on users’ needs. In this respect, the first observation is that the Ministry and the Council have never organised court user surveys to assess the level of service delivered to court users, including trust in judicial officers, procedural justice, and perception of independence. Some surveys were conducted between 2010 and 2015 as courts’ or research institutions’ projects but without the involvement of the Ministry or the Council.^[39]

On the contrary, Eurobarometer’s surveys regularly check the trust and perceived independence of judicial institutions across EU member states. Italian judges have one of the worst evaluations in the EU, as shown in Figures 1 and 2 (Appendix A):^[40] 57% of businesspeople and 59% of the general public perceive the independence of Italian judges as very bad or fairly bad. This evaluation is consistent over time.

Predictability, Integrity and Legitimacy: A First Assessment

Different factors can explain the endurance of the three critical areas just mentioned. Article 111 of the Constitution grants broad access to the Court of Cassation: ‘Appeals to the Court of Cassation in cases of violations of the law are always allowed against sentences and against measures affecting personal freedom.’ The provision explains the uncommon flow of incoming cases, the size of the Court, and, hence, the difficulties of the Court in granting consistent jurisprudential orientation.

The issue of political bargaining can be justified by the democratic constituency of the Council,^[41] with members elected by magistrates and the Parliament.^[42] The leniency of the disciplinary board of the Council is the most common explanation for the recurring ethical, deontological and disciplinary issues mentioned above.^[43] In turn, the lengthy time to disposition (discussed below), the political games within the Council, and the frequent tension between political parties and the magistrates’ association can explain the enduring perception of the lack of independence of Italian magistrates.

In any case, explanation of the phenomena discussed in this section does not involve the dual structure of judicial governance, which should not be understood as the unique reason for the Italian judiciary’s condition critical. The responsibility of dual governance emerges when resources have to be managed, court organised, or digital technologies designed and introduced, as discussed in the next section.

Efficiency, Effectiveness and Flee from Civil Proceedings

The dual governance of the Italian justice system shows its primary limits when resources have to be assigned, managed and used to deliver services. Analysing this critical condition implies considering effectiveness and efficiency through a quantitative analysis. Since the two concepts are often used as synonyms in the judicial reform debate, we refer to effectiveness as the capacity of a system to reach expected results. Hence, it measures the outputs of the system. Efficiency measures the resources used to produce the outputs. Hence, it is a ratio between output and input.^[44] In terms of statistical indicators, effectiveness relates to the ability of the system to dispose of cases in a reasonable time (time to disposition) or to manage cases without piling up backlog (case turnover ratio). Efficiency looks at the resources required to finalise a case (cost per case), or the number of cases closed in a given period (cases decided per judge).^[45] The analysis will focus almost exclusively on the civil sector, looking at the last eight years. The criminal sector will be briefly mentioned to validate the findings.

The slow pace of civil proceedings is the most classical and enduring condition critical of the Italian justice system.^[46] The poor effectiveness is regularly explained by the lack of resources^[47] and procedural complexity. The solution envisaged includes additional resources combined with procedural simplification, increased use of alternative dispute resolutions (ADR) and investment in court technologies. Since uncountable reforms have been implemented, a complete analysis cannot be done in this work. However, a bird’s-eyes view of the main reforms^[48] can help to grasp the efforts to reduce the demand for justice and those addressed to improve efficiency and effectiveness.

The actions on the demand side include the promotion of ADR, increased court fees, and sanctions for frivolous litigation. Law Decree No. 132/2014 promoted the use of ADR and established out-of-court procedures for separation and divorce. Law Decree No. 50/2017 increased the type of cases to be referred to mediation before filing civil lawsuits.^[49] Law Decree No. 59/2016 reformed some civil execution areas, moving some forced sales outside the judiciary’s perimeter. Court fees have been increased several times, particularly in 2014, contributing to making judicial remedies less attractive.^[50] Other measures have been implemented to discourage frivolous litigation, process abuse, and sanction ‘vexatious complaints’. Such measures include awarding the dispute’s costs to the losing party and, in cases of vexatious complaints, the compensation of damages and a financial penalty of up to EUR€5000 (see Articles 92 and 96 of the Code of Civil Procedure).

Several other reforms have been adopted to improve supply by increasing efficiency and effectiveness. Measures include changes in courts’ jurisdictions, internal organisation, and uncountable procedural reforms addressed to simplify case handling.^[51] So, the Ministry of Justice promoted the establishment of company law tribunals, a specialised court section dealing with industrial and intellectual property. Also, the civil and criminal jurisdiction of the Justice of the Peace offices was increased to reduce the Tribunals’ caseload. Court organisation has been improved by introducing judicial assistants (Ufficio per il processo).^[52]

The Ministry made a significant investment in court technology. The budget for IT progressively grew from about EUR€60 million in 2014 to almost EUR€120 million in 2018 and EUR€147 million in 2020.^[53] This effort made it possible to implement new case management and workflow systems in the criminal sector and to make the e-justice platform fully functional and mandatory for civil procedures.

Undoubtedly, the measure taken contributed to improving effectiveness, as emphasised by the Minister and members of the Council.^[54] The number of pending cases at the Tribunals went from 3.13 million in 2014 to 2.5 million at the end of 2019 (Table 1), reducing time to disposition.^[55] However, a closer look shows how this result is due to decreased incoming cases (from three million to 2.5 million in the 2014–2019 term) and not increased productivity. Indeed, in the same 2014–2019 period, closed cases declined from 2.5 million to two million. The year 2020 is not considered in the calculation since the pandemic’s impact on access and delivery of justice makes it hardly comparable with previous years. At the courts of appeal level, trends are identical to the ones observed at the Tribunals (Table 2).

Table 1. Tribunal: Civil Caseflow Data

Table 2. Court of Appeal: Civil Caseflow Data

Considering first instance cases, the decrease in incoming cases concerns mainly landlord-tenants’ disputes (–35%), social security cases (–20%), labour cases in the private sector (–28%) and injunctive orders (–12%). Just asylum seekers, family and guardianship cases increased over the period.

Hence, the drop in incoming cases is more significant when alternative means are available, such as in social security, labour and landlord-tenants’ disputes. On the contrary, when alternative options are unavailable, the caseload increases as in guardianship, asylum and family. The flee from traditional judicial remedies can also be understood as a consequence of timeliness, predictability, and perhaps the reputation and integrity of the system.

A similar dynamic occurs for criminal proceedings in all of the different types of courts except for the Court of Appeal.

The Ministry and Council emphasise the increased effectiveness and shortened disposition time. At the same time, they do not explain the brutal statistical reason behind the result: the decrease in incoming cases. Also, keeping the overall number of cases decided to the level of 2014 would have solved the excessive length of civil proceedings. Table 3 simulates a scenario assuming that from 2015–2019, the Italian Tribunal would have decided the same number of cases as in 2014.

Table 3. Tribunal: Civil Proceedings Simulation

The simple calculation shows a potential reduction of pending cases from three million to 1.4 million, and the speed-up of disposition time from 415 days to 212 days. In a nutshell, if the number of cases decided had been kept constant, the longstanding issue of timeliness would have been solved simply thanks to the decrees in incoming cases.

The trend of caseflow dynamics observed with the Court of Appeals is the one observed with the Tribunal, with a backlog reduction mainly due to a decrease in incoming cases. As with the Tribunal, if the aggregated output of 2014 is projected in the following years, we would observe a reduction in backlog and disposition, even if it is much more limited than in Tribunals (Table 4).

Table 4. Court of Appeal: Civil Proceedings Simulation

The Court of Cassation is not yet experiencing a reduction in caseload. Instead, it shows an increased demand (from 30,000 to 38,000 cases in the period) and a growth of decided cases. However, the balance is negative, with pending cases going from 97,000 in 2010 to 117,000 in 2019 (Table 5). This massive flow of cases contributes to clarifying the difficulties faced by the Court in granting clear jurisprudential orientation, discussed above.

Table 5. Court of Cassation: Caseflow of Civil Cases

The lack of resources (i.e., the most common explanation for the excessive length of proceedings) does not explain the results reached. First, the available resources (i.e., aggregated budget of the justice system, the budget assigned to courts, and the number of judicial and administrative officers) increased over the period (Table 6). Second, available resources are allocated without a clear organisational or managerial rationale. Third, because the efficiency of the different courts is exceptionally variable: many understaffed courts have better results in terms of efficiency and effectiveness than overstuffed courts.

At the national level, the latest data showed a court budget increase from EUR€2.846 million in 2014 to EUR€3.164 million in 2020. Professional judges grew from 6.939 to 7.027. Staff remained stable, and non-professional judges increased by about 500 units (Table 6).

Table 6. Budget, Judicial and Administrative Staff^[56]

The observed reduction of closed cases in the first instance and appeal courts with increasing or stable resources means an efficiency reduction: fewer cases decided per judicial officer (professional or non-professional) and higher cost per case.

Two recent works allow looking into the details of this first finding. The first work estimates the average cost per case incurred by each Italian court to define a single civil and a criminal case. The cost data are then cross-tabulated with the average time to disposition (2015–2017 term).^[57]

The costs of the proceedings in the different courts range from EUR€620 to EUR€180, with an average of EUR€307. Also, time to disposition for contentious proceedings is highly variable across the different courts: it goes between 2211 days and 250 days, with an average of 702 days. The ranges for criminal cases are even more extensive.

Several deductions can be made assuming a similar case complexity in the different courts.^[58] Courts that are effective but inefficient are overstaffed. When ineffective but efficient, they are likely understaffed: judges and administrative personnel are closing many proceedings compared to similar courts. Effective and efficient courts can be considered a model, and ineffective and inefficient ones require systematic reorganisation. Further, the analyses identified offices with radically different performances in the civil and criminal sectors—for instance, efficient and effective in civil, while inefficient and ineffective in criminal. Overall, the different court performances, and the substantive number of courts with poor efficiency and effectiveness, show there is potential to improve the two dimensions within the limits of available resources and procedures.

A second study suggests an answer about the factors influencing the efficiency and effectiveness variations. Following an approach similar to the study reported above, the new work first classifies courts based on their degree of efficiency and effectiveness above or below average.^[59] Then it identifies, with a statistical analysis, the variables that explain the different performances observed: number of judges per inhabitant, judicial turnover, litigation rate, and level of use of court technology. Table 7 summarises the results of the two works.

Table 7. Efficiency and Effectiveness of Italian District Courts

Group 1 (inefficient and ineffective) has courts with a higher number of judges per inhabitant, lower demand (number of incoming cases per population), lower use of e-justice applications, and higher judicial turnover. The courts in this group require measures to increase efficiency, including a more systematic adoption of IT and organisational improvements.

Group 2 (ineffective and efficient) shows an imbalance between supply and demand: few judges for the number of inhabitants and cases to be handled. The use of IT is above average. In this case, low effectiveness should be pursued by increasing human resources.

The courts belonging to Group 3 (effective but inefficient) have a low litigation rate and case complexity, a high number of judicial officers, and a low judicial turnover. This group of courts requires organisational measures to improve efficiency. Also, data suggest that reducing judicial and administrative staff should be considered.

Finally, courts of Group 4 (effective and efficient) show degrees of efficiency and effectiveness above the average. They have a low number of judges per inhabitant, while the use of IT is higher than in the other groups. Given the available resources, this group represents the best combination in terms of the timely definition of proceedings. Hence, the group should be analysed to identify the reasons behind its superior results.

To sum up, at the national level, the decline in efficiency (reduction of the number of cases decided per year while resources are growing) is coupled with a faster decline in the demand for justice (number of incoming cases). More precisely, the analysis shows that excessive disposition length is caused by declining productivity across the years and a high variation of efficiency across the various offices. Despite the growth of the budget and the measures taken at procedural, organisational and technological levels, the capacity to supply justice diminished over the years. The resources assigned to the different courts are not balanced on the caseload. Then, courts use the resources available with very different results. The main problem is not time to disposition but the capacity of the system to efficiently allocate and use available resources to deliver justice. The following section discusses the role of the dual governance structure in this critical state of affairs.

Dual Judicial Governance and Judicial Administration

Staff plans have been used since 1865 to establish the maximum number of administrative and judicial personnel assigned to each court.^[62] They are subject to periodical updates. The last one, dated back to 2016, was decided considering the number of incoming cases, supplemented by qualitative and quantitative ‘additional criteria’: population (residents and city users), pending cases and delay, court clusters based on dimension (number of magistrates), socio-economic factors, litigiousness and criminality rates, and preservation of social cohesion in mafia territories.^[63] However, the formula or the algorithm used for the calculation is not disclosed. This lack of information raises the suspicion that the decision was not technical but informed by other criteria. The result is that variations with the previous staff plans are minimal, with courts that remained over or understaffed.^[64] A proper workload exercise —estimating judges’ needs based on the complexity or ‘weight’ of the different types of cases can—make judges’ and staff needs estimates accurate.^[65] However, such a fundamental approach has never been used.

Due to issues like budget availability, retirements and the timing of recruitment, courts have fewer judges than those established by staff plans. They can be filled up with transfers from other offices and appointments of newly recruited judges. The procedure is carried out by the Ministry (for administrative staff) and the Council (for judges) through public calls. However, not all vacant positions are available in the call, just those selected by the Council based on some criteria. A similar system, exclusively managed by the Ministry of Justice, works for the administrative staff.^[66] The result is a distribution of human resources largely discretional and not based on transparent criteria.^[67]

Further, as emerged in the previous section, the staff plan arrangement leads to a lack of correlation between the resources assigned to courts and results achieved, and between incoming cases (demand) and human resources made available to courts. When current systems, such as workload assessment analyses or performance-based budgeting^[68], are adopted, results are different. A comparison of the cost per case in Italy with two countries that adopt weighted caseload and performance-based budgeting models—Finland and the Netherlands—shows a cost variation ranging from 27% in Italy to 17% in Finland and 6% in the Netherlands.^[69]

Thus, why are staff plan arrangements still in place after 158 years, and workload assessment or performance-based budgeting not even discussed? The answer requires considering the dual governance structure and identifying its limits when the administration of justice is not just a matter of applying the law but entails the management of resources, people and technologies through more or less complex techniques. Indeed, the case of resource assignment and management, epitomised by the endurance of staff plans, is just an example of the current challenges of judicial administration. Court management, court performance evaluation, court user surveys or digital transformation represents similar challenges. They all require an integrated, coherent and long-term approach to be implemented.

The cases of Finland and the Netherlands mentioned above represent two examples in which a single institution handles judicial governance: the Ministry of Justice in Finland,^[70] and the Judicial Council in the Netherlands. Such institutions are responsible for all of the functions required to assure judicial self-governance, including resource allocation, performance evaluation and court management. Hence, they are accountable for the governance of the systems. Difficulties in designing and implementing up-to-date management systems grow when governance is dual, and competencies are shared between a ministry and council because the functions are at a crossroads between the two bodies. A workload assessment exercise involving judges and staff requires an agreement between the Italian Ministry and Council about the leadership, methodology and use of the findings, including priorities for staff assignment. These requirements apply to workload assessment or resource allocation and the entire court management toolkit, including digital transformation, case management, court performance evaluation, and court user surveys. They all imply common understandings, a shared approach, a long-term commitment, and a synchronised effort by the two bodies. Reaching this kind of agreement is difficult, if not impossible, when two organs with different constituencies, priorities, agendas and institutional timelines are involved.

The Minister gets a confidence vote from the Parliament, and the Council is mainly elected by magistrates. Consequently, the strategies, policy preferences and values the two bodies promote differ. Also, the two bodies are elected with different timelines. This instance, which affects any system with dual judicial governance, is aggravated in Italy by the short average duration of the governments. Since the first election in 1959, the Council has been renewed 15 times. In the same period, the Ministry of Justice changed 36 times. Since each Minister and Council brings different priorities, policy agendas reshuffle every time there is a change (a new Minister or a new Council). Hence, policy alignment is unlikely, and when it occurs, it is short term. Hence, long-term and mid-term joined-up efforts are unlikely, even when the two institutions work with loyal cooperation. Therefore, innovation may become difficult or impossible when a policy or managerial area requires synchronised actions by the two governance bodies. It is the case of resource allocation or digitisation.

This dynamic affects policy-making and many institutional and organisational decisions, and can lead to different outcomes: lack of innovation and reform (as discussed in this paper), but also overlaps and competition, attempt to broaden the functions and conflict, as well as ‘pass the buck’ for the poor results.^[71] For instance, by Constitution, the Ministry of Justice is in charge of the evaluation of organisational performance, but also the Judicial Council develops policies in such areas.^[72] While ICT is considered a competence of the Ministry of Justice, the Council has established roles and committees to supervise the work in the field.^[73] The same applies to court organisation, which was a prerogative of the Ministry and is now increasingly taken by the Council.^[74] The broadening of the Council’s function has been criticised because it affects functions that the Constitution assigns to the Ministry.^[75] However, this work does not take a critical stance against this broadening of the function of the Council since organisational performance evaluation, digitisation and court organisation have clear impacts on judicial function. What matters is that the joint involvement of the Ministry and the Council results, in the best case, in delays, lack of innovative policies, and poor accountability.

Even a clear split of competencies between the Ministry and the Council would not reduce the need to take coordinated actions in policy-making and the implementation of the court management toolkit, as explained above. The administration of justice is, essentially and synchronically, the administration of staff and judges, procedures and digital technology, performance evaluation and quality development, with roots in the Ministry and the Council. Hence, they require simultaneous efforts and agreement between the two bodies.

Conclusion

The condition critical of the Italian judiciary entails different dimensions of justice administration. Disciplinary charges and deontological issues are not negligible, while the appointment of the apexes of judicial offices is exposed to bargaining and partisan manoeuvring among magistrate groups and politicians. Judicial integrity is an issue. Many citizens and businesses consider judges and prosecutors not independent, and the trust in courts and judges remains among the lowest in the EU. The unlimited access to the Court of Cassation granted by the Constitution generates a massive caseload, making it difficult to grant timely jurisprudential interpretation of the law and its homogeneous application. As discussed, the reasons that can explain these critical areas are multiple and not directly related to the dual governance structure. At the same time, some failure points can be directly explained by the features of dual governance, such as the allocation of resources, their efficient and effective use at the court level leading to lengthy procedures, or the lack of court users’ surveys. Hence, the duality of judicial governance precludes integrated judicial reforms. The separation of functions between the Ministry of Justice and the Judicial Council is an obstacle to action that requires the two institutions’ joint and coordinated efforts.

This finding does not entail just the Italian case. Based on structural and institutional features common to all systems in which judicial governance functions are shared between two bodies, they are familiar to all judiciaries with such a governance feature. Hence, they contribute to explaining, with organisational and institutional arguments, the negative correlation between judicial councils, particularly those belonging to the French model and judicial efficiency,^[76] and the difficulties these institutions face in promoting innovation at the managerial and organisational levels.

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Appendix A

Annex – Statistical data:

I. Judicial governance and the condition critical of the Italian justice system

Source for the Court of Cassation: Cepej dynamic database https://public.tableau.com/app/profile/cepej/viz/QuantitativeDataEN/Tables?publish=yes

Court of Cassation - Civil and Criminal caseflow 2020

Court of Cassation - Criminal caseflow 2020

Court of Cassation – Total caseflow (Civil and Criminal) 2020

Court of Cassation – Number of cases per judge 2020

Supreme courts (Cassation and Council of State) – Number of Judges per inhabitants

Supreme courts (Cassation and Council of State) – Number of Judges absolute numbers

II. Civil Procedures 2014-2020

Source: Webstat, Ministry of Justice https://webstat.giustizia.it/SitePages/StatisticheGiudiziarie/civile/Procedimenti%20Civili%20-%20flussi.aspx

Incoming cases - Civil

Decided cases - Civil

Pending cases - Civil

III. Criminal Proceedings 2014-2020

Source: Webstat, Ministry of Justice

https://reportistica.dgstat.giustizia.it/VisualizzatoreReport.Aspx?Report=/Pubblica/Statistiche%20della%20DGSTAT/Materia%20Penale/1.%20Movimento%20dei%20procedimenti/1.%20dati%20nazionali/1.%20tutti%20gli%20uffici%20in%20serie%20storica

Criminal proceedings - Incoming cases

Criminal proceedings - Decided cases

Criminal proceedings - Pending cases

Figure 1. Perceived independence of courts and judges among companies (2021)^[77]

Figure 2. Perceived independence of courts and judges among the general public (2021)^[78]

^[1] Calamandrei, Procedure and Democracy; Cappelletti, “Civil Procedure”; Denti, “Giustizia Civile.”

^[2] A first version of the paper was presented at the seminar series, Condition Critical: Disruption, Disaster and the Challenges to Law (September 2021): https://ces.uc.pt/pt/agenda-noticias/agenda-de-eventos/2021/condition-critical.

^[3] Constitution of the Italian Republic, arts 104–105.

^[4] Garoupa, “Guarding the Guardians”; Šipulová, “Judicial Self‐Governance Index”; Hammergren, Judicial Councils.

^[5] Consultative Council of European Judges, Magna Carta of Judges; Council of Europe, Recommendation; Venice Commission, The Rule of Law Checklist.

^[6] Voermans, EU Countries; Seibert-Fohr, Judicial Independence in Transition.

^[7] Garoupa, Judicial Reputation, 105–107.

^[8] Garoupa, Judicial Reputation, 138.

^[9] Di Federico, Recruitment; Garoupa, “Guarding the Guardians”; Šipulová, “Judicial Self-Governance Index.”

^[10] Castillo-Ortiz, “Judicial Council”; Kosař, “Beyond Judicial Councils”; Šipulová, “Judicial Self-Governance Index.”

^[11] Voigt, “Determinants.”

^[12] Šipulová, “Judicial Self-Governance Index.”

^[13] Velicogna, “Justice Systems and ICT,” 145.

^[14] Langbroek, “Dutch Judiciary,” 23; Bunjevac, Judicial Self-Governance, 62; Voermans, EU Countries.

^[15] This paper does not consider administrative, account and military courts since they have specific features that cannot be accounted.

^[16] For an official presentation of the main features of the Italian justice system, see the website of the Judicial Council: https://www.csm.it/web/csm-internet/magistratura/il-sistema-giudiziario. For a critical review, see Contini, “Quality of Justice.”

^[17] Including the role of prosecutors in the discussion will increase the complexity without adding value or relevant content.

^[18] Constitution of the Italian Republic, art 110. Despite the provision, the heads of Department and of General Directorates are almost completely magistrates.

^[19] They are the President of the Republic, the President of the Supreme Court of Cassation, and the General Prosecutor of the Prosecutor’s Office attached to the Court of Cassation (Article 104).

^[20] Constitution of the Italian Republic, art 104.

^[21] The increasing and complex functions carried out by the Council have also increased the number of employees of the Council, which is supposed to be about 200.

^[22] Vismann, Files.

^[23] Guarnieri, The Judicial System, 122.

^[24] See Appendix A with statistical data.

^[25] The Appendix provides a basic dataset to comparing caseflow and number of judges in the supreme courts of France, Italy, Spain and the Netherlands. Germany was not included because, being a federal system, the comparison would have been misleading. The caseload of the Spanish Tribunal Supremo, in steep rise, reflects the changes introduced by Law 41/2015, which broadened access to the court. The goal was to homogenise the doctrine in criminal matters since the criteria adopted by lower courts were inconsistent. For a discussion about the comparability of European Commission for the Efficiency of Justice (CEPEJ) data, see Onţanu, “EU Member States.”

^[26] Rordorf, “Stare Decisis,” 285.

^[27] Taruffo, Il Vertice Ambiguo; Taruffo, “Casistica e Uniformità.”

^[28] Nappi, “Corte di Cassazione.”

^[29] For an early analysis of these dynamics, see Di Federico, “Lottizzazioni Correntizie.”

^[30] FQ, “Luca Palamara.”

^[31] ANSA, “Avvocati.”

^[32] Scagliarini, “Giustizia.”

^[33] FQ, “Milano.”

^[34] See, for instance, Zurlo, Il Libro Nero della Magistratura.

^[35] Cavallini, Gli Illeciti Disciplinari.

^[36] Schauffler, “Judicial Accountability,” 125–126.

^[37] Rottman, “Judicial Performance.”

^[38] See the surveys regularly conducted by Eurobarometer: https://europa.eu/eurobarometer/.

^[39] The full list of court users’ surveys is available on the website of the General Directorate of Statistics of the Ministry of Justice: https://webstat.giustizia.it/Analisi%20e%20ricerche/Forms/Customer.aspx.

^[40] The last available surveys are available at https://ec.europa.eu/info/policies/justice-and-fundamental-rights/upholding-rule-law/eu-justice-scoreboard_en#surveys. For a discussion of the issue and a comparison of European Union data, see Sapignoli, “Trust in Justice.”

^[41] Guarnieri, The Judicial System, Chapter 5; Catino, “Le Regole Imperfetto.”

^[42] Constitution of the Italian Republic, art 104.

^[43] This position is acknowledged by a former leader of the magistrate association, who instead argues the Italian disciplinary board, having a higher number of sanctions in relation to a similar number of magistrates, is significantly more severe than the French one. Bruti Liberati, “Ordinary Judiciary.”

^[44] More precisely, efficiency implies getting any given results with the smallest possible inputs or the maximum possible output from the given resources. It ‘measures how successfully the inputs have been transformed into outputs. Effectiveness measures how successfully the system achieves its desired outputs’. Law, Dictionary, 210.

^[45] Fabri, “Economicità,” 6.

^[46] In addition to the references in footnote 1, see Chase, “Civil Litigation Delay”; Silvestri, Never-Ending Reforms; Caponi, “Performance”; Fabri, “The Italian Maze”; Fabri, “La Giustizia Civile.”

^[47] This is ritually emphasised in the annual report on the administration of justice presented by the President of the Court of Cassation. Curzio, Relazione sull’Amministrazione, 4; Santacroce, Relazione sull’Amministrazione, 46.

^[48] The data stream starts in 2014 because accurate and disaggregated statistical data were not available before that time.

^[49] An estimate of the impact of ADR on incoming cases does not seem to be very high. The last available data show around 150,000 new cases of ADR per year (2014–2021 period) and a success rate between 12% and 15%. Even if these official data may not entirely capture the number of ADR cases dealt with at the national level, the impact of the policies seems modest. Direzione Generale di Statistica e Analisi Organizzativa, Mediazione Civile.

^[50] Giacomelli, “La Giustizia Civile in Italia”; Trocker, “Degiurisdizionalizzazione.”

^[51] In the 2022 congress of the National Magistrates Association, Domenico Pellegrini, a well-known representative of the Association, emphasised the lack of impact of the 25 major procedural reforms entered into force since the establishment of the Italian Republic (Rome, 14 October 2022). See also Silvestri, Never-Ending Reforms.

^[52] Since its implementation was completed just in 2022, the impact on the dataset considered in this work is still negligible.

^[53] See CEPEJ, “Dynamic Database” for a list of prosecutors’ offices.

^[54] The table considers all of the first instance courts (Tribunali) and all of the different types of cases except ‘volontaria giurisdizione’ (i.e., non-contentious cases including guardianships).

^[55] If not differently specified, the source of the data used in this section is Ministero della Giustizia, “Civil Proceedings 2014–2021.”

^[56] CEPEJ, “Quantitative Data EN.”

^[57] Contini, “Quanto Costa la Giustizia?”

^[58] The study tackled the limitation caused by the lack of weighted caseload clustering courts based on their size and specialisation to assure a more homogeneous caseload. Also considered was a three-year term—and not single years—as a measure to reduce the impact of short-term variations of caseload or other factors.

^[59] Cugno, “La Giustizia Civile in Italia.” While both Cugno’s and Contini’s studies use the time to disposition as an indicator of effectiveness, Cugno uses the number of cases decided per judge as the indicator of efficiency (productivity), whereas Contini adopts cost per case, which also includes the cost of administrative staff.