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1 LAW N° 89 OF 24 MARCH 2001, on the equal compensation in case of violation of the reasonable length of a trial.

2 LAW N° 89 OF 24 MARCH 2001 "Fair and equal compensation for violation of the reasonable length of a trial and ratification of Art. 375 of the Civil Code"

3 LAW-DECREE N° 370 OF 12 OCTOBER 2001 Published on the Offical Bulletin N° 240 on 15 October 2001. Postponement of the terms of Art. 6 of Law N° 89 of 24 March 2001, about the submittion of the equal compensation application. (Official Bulletin N° 240 of 15 October 2001) entered into force on 16 October 2001.

4 LAW DECREE N° 28 OF 11 MARCH 2001  "Ratifications of Art. 9 of the Law N° 488 of 23 December 1999 about the enrolling consolidated payment for civil, penal and administrative proceedings, as well as Law N° 89 of 24 March 2001 about the equal compensation".

-->5 WHERE TO SUBMIT APPLICATIONS
] ---->The trial was held into a legally recognised office of the Court of Appeal of:
The equal compensation application for excessive length of trial shall be submitted to the court of Appeal of:] --

LAW N° 89 OF 24 MARCH 2001, on the equal compensation in case of violation of the reasonable length of a trial.

The original document of Law N° 89 of 24 March 2001, was published on the Official Bulletin N° 78 on 3 April 2001.

The law is meant to provide domestic safeguard means, as described in the European Convention (Artt.35-36-37 ) and it is a direct consequence of the numerous advices the Committee of Ministers and the Court gave to Italy judged guilty of violations of Art.6.1. and of not trying to find a suitable domestic remedy as described in Art.13 of The European Convention on Human Rights and Fundamental Freedoms.

The applicant right to offence compensation due to the violation of Art.6.1., includes patrimonial and non patrimonial offences such as legal costs, physical and psychical sufferings due to the long time spent waiting for the final decision to the case. The amount of the offences shall be fixed according to Art.2 of Law N° 89, according to Art.2056 of the Italian Civil Code in observance of  Artt.1223, 1226 and 1227 of the Civil Code. It is not a real compensation but an “equal compensation”.

In order to obtain his equal compensation for a patrimonial offence(Art. 2056 and 1223 of the Civil Code), the applicant shall prove that the offence is a direct consequence of the extreme length of the trial. The European Court , on the other hand, needed the evidence of this connection only for material offences, while moral offences compensation was fixed in case of violation of Art. 6.1 only on request of the applicant and according to its Code of Rules (Art. 50 Reg.).

In fact, the applicant shall prove the violation of Art. 6.1 and secondly his direct and personal offence connected. The applicant shall pay for double legal charges.

The Pinto Law, then, even following Art.6.1 of the E.C.H.R., doesn't include the European Court compensation rules.

So, if judged acceptable, the Court of Appeal Decree shall fix the compensation according to Art. 2056 of the Civil Code, taking into consideration both the new offence and the missed profit according to Art.1223 of the Civil Code. This profit shall be dismissed considering the case circumstances according to Art.2056, clause 2 of the Civil Code, with an equal evaluation according to Art.1226 of the Civil Code and calculating the casual reduction  if the applicant is involved in the case causes according to Art.1127 of the Civil Code.

According to the Legal Section of the Court, when fixing the compensation for a civil, penal, administrative or tributary trial, the entire period of the trial shall be taken into consideration and not only the time starting after the reasonable length of it. When fixing the compensation the Court uses the "case by case" criterium analysing each singular trial. Then, the Court has fixed the excessive length of a trial after three years and three months and gave Lire 11.000.000 to the applicant, that is to say four millions per years. This final decision is in contraddiction to the Pinto Law which is very doubtful as always so different  from the European Court decisions.

So, the average compensation fixed by the European Court varies between 2,5 millions and 4 millions for each year of trial after the reasonable length which is about four years. As a consequence, the Pinto Law shall be completely modified as the applicant is obliged to submit his application to the Supreme Court and then again to the Court of Strasbourg.

The patrimonial offence can't be compensated through a public statement of the violation.

According to the new law of Art.3, the applicants wanting to submit their applications to the Court of Strasbourg shall first submit them to the Court of Appeal according to Art.11 of the Civil and Penal Code (see Table). The Council Chamber of the Court of Appeal shall take a decision within four months according to Art.737 of the Civil and Penal Code. The Court Decree has an executive power and is subject to appeal at the Supreme Court.

During the case analysis, Art.2 of Law 89/2001 clearly specify the elements judged by the judge as: the case complexity, in particular the number of high contracting parties, the number of witnesses, the investigation complexity and the amount of documents to be considered; the parties behaviour, in particular the number of postponements, the defendant absences, the hearings, legal representatives dismissals just to postpone the conclusion of the trial; the judge behaviour, in particular the reasons of his postponements, or the number of delays; any other authority bahaviour involved in the case.

According to Art.3 of Law 89/2001 individual applicants need a legal representative, but they can submit their applications at the Court of Strasbourg without him. The final judgment is given by the Court of Appeal of the district in which the assigned judge exercises his power. According to Art.11 of the Penal Code he can exercise his powers in the district area where the violation is pending. The applicant shall submit his application at the chancellery of the Court of Appeal involved. The application shall be signed by the legal representative with a special proxy.

The legislator criterium on the magistrates responsibility is critisized because generally speaking it it is compared to the State responsibility about the violation of the European Convention on Human Rights and Fundamental Freedoms, but in special cases. The application shall be submitted to the Ministry of Justice in case of a procedure in front of the ordinary judge; to the Ministry of Defence in case of a procedure in front of the military judge; to the Ministry of Finance in case of a procedure in front of a tributary judge; to the Prime Minister in all other cases.

The applicant shall notify his applications and the fixed hearing and not less than fitfteen days shall pass between the notification date and the first hearing.

The Law 89/2001 is about to enter into force but it has been already exploited.

It is remarquable however the great amount of negative final decisions for the applicant or completely inadequated compensations.

Then, Law N° 432 of 14 December 2001 postponed on 18 April 2002 the enter into force of Law 89/2001. So, according to Art. 11 of the Penal Code, all applications to the European Court of Strasbourg could be submitted to the Court of Appeal within 18 April 2002. According to Art. 2 of the Pinto Law, those applicants who will not submit their pending applications to the Court of Appeal within 18 April 2002, will loose their right of compensation as the Court of Strasbourg will reject their applications as inadmissible.

Those  applicants which still have pending cases of more than four years in Italy, should submit their applications to the Court of Appel and make reference to the new Law Decree N° 28 of 11 February 2002 which set forth the costs-exemption for the trial, ratifying the Pinto Law and its obligation to pay for enrollement, registration costs even if the Court of Strasbourg doesn't contemplate them.

Another reason for criticising the Pinto Law is the applicant submission to the State Government which is not contemplated into the European Convention on Human Rights.

An exemple could be the case Bertagna against the Italian Government.

LAW N° 89 OF 24 MARCH 2001

"Fair and equal compensation for violation of the reasonable length of a trial and ratification of Art. 375 of the Civil Code"

published on the Official Bulletin N° 78 of 3 April 2001

SECTION I

CIVIL TRIAL IMMEDIATE SETTLEMENT

Art. 1

(Council Chamber decision)

1. Art. 375 of the Civil Code:

«Art. 375. - (Council Chamber decision). – The Court, unanimously and in separate departments, declares in the Council Chamber that:

1) the main application and the extraordinary application, if any, are inadmissible;

2) the debate musts be taken into consideration as well as the impugnment notification according to Art. 332;

3) the trial ends for disclaimer according to Art. 390;

4) it will give its opinion on the trial end;

5) it will give its opinion on the rule, competence and jurisdiction petitions.

The Court, unanimously and in separate departments, declares in the Council Chamber that

the main application and the extraordinary application, if any, are both judged admissible or both judged inadmissible according to Art. 360 as inconsistent, or one is judged admissible and the other one inadmissible according to Art. 360.

The Court, if the first and second clause are inconsistent, may hold a public hearing.

At least twenty days before the hearing of the Court in the Council Chamber, the Public Prosecutor may communicate his final decision to the contracting parties' defendants and the defendants may submit their reports and be granted an audience according to Art. 378 and in the cases described in clause 1, number 1), 4) and 5), with the jurisdiction rules limit according to clause two.

SECTION II

EQUAL COMPENSATION

Art. 2

(Right to equal compensation) 

1. Applicants victim of patrimonial or non-patrimonial offences as a violation of the Convention for the Protection of Human Rights and Fundamental Freedoms, ratified according to Law N° 848 of 4 August 1955, in case of excessive length of a trial as described in Art. 6, paragraph 1 of the Convention, have the right to a fair and equal compensation. [1] .
2. In giving his judgment on the case, the judge takes into consideration the contracting parties behaviour and the assigned judge behaviour as well as the behaviour of any other involved authority. The judge according to Art. 2056 of the Civil Code fixes the compensation as follows:

a) only the offences occured during the period of excessive length shall be taken into consideration according to clause 1;

b) patrimonial offences are compensated not only by amounts of money but also through public statements of the violation.

Art. 3

(Procedure)

1. The fair and equal compensation application shall be submitted to the Court of Appeal of the district where the assigned judge has his legal powers according to Art. 11 of the Penal Code, that is to say the district in which the violation was committed.

2. The application must be submitted to  the Court of Appeal Chancellery, signed by a legal representative and containing all the details according to Art. 125 of the Civil Code.

3.The application shall be submitted to the Ministry of Justice in case of a procedure in front of the ordinary judge; to the Ministry of Defence in case of a procedure in front of the military judge; to the Ministry of Finance in case of a procedure in front of a tributary judge; to the Prime Minister in all other cases.

1. The Court of Appeal acts according to Artt. 737 and following of the Civil Code. The application, toghether with Council Chamber decision is notified by the applicant, the assigned administration to the State Bar. At least fifteen days shall pass between the notification and the Council Chamber decsion date. 
2. The Contracting Parties may ask the Court the filing of all or part of the documents and reports of the case about the violation of Art. 2 and may also, together with their defendants ask to be heard at the Council Chamber. Up to five days before the Council Chamber hearing, the parties may produce new documents.
3. Within four months from the date of the submission of the application, the Court may pronounce its decree subject to appeal of the Supreme Court. The Decree becames immediately executive.
4. The compensation is fixed according to the available amounts and from the 1^st January 2002.

Art. 4

(Terms and Conditions)

1. The compensation application may be suggested during the pending trial when the violation is verified or within six months from the date of the final decision.

Art. 5

(Communications)

1. The admissibility decree is transmitted to the contracting parties, to the General Attorney of the general accounting office in order to allow the starting of the liability procedure, if any, and to the public employees involved in the case.

Art. 6

(Temporary rule)

1. Within six months from the enter into force of this law, those applicants who have already submitted their application to the European Court of Human Rights, for the excessive length of a trial according to Art. 6, paragraph 1, of the Convention for the Protection of Human Rights and fundamental Freedoms, ratified according to Law N° 848 of 4 August 1955, may submit their application as described in Art. 3 of this law if an admissibility judgment hasn't been given yet by the European Court. If this is the case, the application submitted to the Court of Appeal shall indicate the date of the submission of the application to the said European Court.

2. The assigned judge Chancellery informs in time the ministry of Foreign Affairs of all applications submitted according to Art.3 within the time as in clause  1 of this article.

Art. 7

(Financial statement)

1. Starting from the year 2002, the amount of the cost of the entry into force of this law is Lire 12.705 millions. This amount shall be payed through a reduction of the written budget for the years 2001-2002-2003, that is to say the "Special Provision" of the Ministry of the Treasury, included in the budget and economic planning for the year 2001.

2. The Ministry of Treasury, Budget and Economic Planning has the power to modify the budget.

LAW-DECREE N° 370 OF 12 OCTOBER 2001

Published on the Offical Bulletin N° 240 on 15 October 2001

Postponement of the terms of Art. 6 of Law N° 89 of 24 March 2001, about the submittion of the equal compensation application. (Official Bulletin N° 240 of 15 October 2001) entered into force on 16 October 2001.

THE PRESIDENT OF THE REPUBLIC

Taken into consideration Art. 77 e 87 of the Constitution; taken into consideration the Law N° 89 of 24 March 2001, about the right ot equal compensation in case of excessive length of a trial; taken into consideration Art. 6 of this Law about the right for those applicants that have already submitted their applications to the European Court of Human Rights of the Convention for the protection of human rights  and fundamental freedoms ratified according to Law N° 848 of 4 August 1955, to submit within six months from the date of the entry into force of the Law, the application of Art. 3 of the law if not already accepted by the European Court; taken into consideration the previous final decisions of the European Court on the inadmissability of applications for the reasonable length of a trial, as the missing internal application of this law; taken into consideration the doubtful circumstances presenting when submitting the application to a national authority when aready pending to the European Court of Human Rights, and as a consequence, the expiration of the submitting time;taken into consideration the safeguarding of the right to obtain a compensation for offences caused by the excessive length of a trial; taken into consideration the pressing necessity to a postponement of the time alredy fixed; taken into consideration the Cabinet Council resolution adopted during the meeting of 12 October 2001; and on demand of the President of the Cabinet Council and the Ministry of Justice; the following Law-Decree is issued:
Art. 1

1. The expiration as in Art. 6, clause 1, of Law N° 89 of 24 March 2001 is postponed till 18 April 2002. Art. 2. 1.
   This Decree enters into force the day after its publication on the Italian Official Bulletin and shall be submitted to the Chambers to became Law.
   This decree with its State Seal shall be added to the ufficial section of laws of the Italian Republic.
   This decree has a binding power.
   Signed in Rome, on 12 October 2001

CIAMPI, President of the Italian Republic

Berlusconi, Cabinet Council President

Castelli, Minister of Justice

 Signed, Minister of Justice: Castelli

 LAW N° 432 OF 14 DECEMBER 2001

 Published on the Official Bulletin N° 290 of 14 December 2001

Art. 1

1. The Law-Decree N° 370 of 12 October 2001 about the postponement of the expiration as in Art. 6 of the Law N° 89 of 24 March 2001 on the equal compensation procedure.

2.This Law enters into force the day after its publication on the Official Bulletin.

LAW DECREE N° 28 OF 11 MARCH 2001

"Ratifications of Art. 9 of the Law N° 488 of 23 December 1999 about the enrolling consolidated payment for civil, penal and administrative proceedings, as well as Law N° 89 of 24 March 2001 about the equal compensation".

 Published on the Offical Bulletin N° 60 of 12 March 2002

 Art. 1
Ratifications of Art. 9 of Law N° 488 of 23 December 1999, and Table 1

 1.Clause 3 of  Art. 9 of the law N° 488 of  23 December 1999, is the following:
"3. The applicant that first institutes a civil action or first submit the application, that is to say the applicant that in case of executive proceedings, first makes a petition for the assignment or the selling of confiscated goods, shall pay in advance the amount according to clause 2. The contracting party willing to ratify the application or submit cross-action or  make reference to or act independently, shall, in case of increasing of the case costs,  clearly express it and pay the extra amount according to table 1 attached to this law."

2.At the end of clause 4 of  Art. 9 of Law N° 488 of 23 December 1999, those words were added: "and it is a debt to be payed as offence compensation from the obligor".

3.In clause 5 of Art. 9 of the Law N° 488 of 23 December 1999, the following words have been cancelled: "that is to say during the injuction. In case of augmentation of the amount, the party shall clearly express it and pay the added amount according to data of table 1 attached to this law. If the party refuses to pay, the judge declare the nonsuit of the application

4.After clause 5 of  Art. 9 of Law N° 488 of 23 December there is what follows:
"5-bis. In case of missing or insufficient payment of the amount due,within ten days from the date of the fixing of the amount to be payed according to clause 3, the officer of the judicial department invited the party to pay, as in table 1, specifying that if the amount is not payed within a month, the Court will debit the legal representative with the sum due.

 5.Clause 8 of  Art. 9 of Law N° 488 of 23 December 1999, says:
"8. Proceedings already duty , tax or right free, without any limit of amount and value, as well as proceedings of civil state adjustment, proceedings about real estates, pending precautionary proceedings and regulation, competence and jurisdiction proceedings, shall not be subject to any payment according to this article.

6.Clause 11 of Art. 9 of Law N° 488 of 23 December 1999, says:
"11. The provisions of this article shall be applied starting from 1^st March 2000 to those proceedings put on the list from that date. As for those proceedings already put on the list before the 1^st March 2000, according to this article, the party pays the amount for the first hearing on table 1 because:
a) 20% for the cases already registered before 1997;
b) 50% for the cases registered before the 1^st January 2000;
c) 70% for the cases registered from the 1^st January 2000.
Proceedings alredy finished or postponed even after the date of the entry into force of this law and the proccedings put on the list before 1^st January 1992, shall not be subject  to any payment according to this article. The amounts payed as duty, enrollement, chancellery rights, involvement rights and fixed tax shall not be payed back".

7.After N° 3 of the table 1, attached to Law N° 488 of 23 December 1999, the following article was added:
"3-bis. As for Art. 91 of the Decree N° 267 of 16 March 1942, the amount to be payed is of 516,50 Euro".

8.In number 4 of table 1 attached to Law N° 488 of 23 December 1999, after the words "title I" have been added the following words: ", section I, III and IV," and the following words have been cancelled: "and II," as well as: "the contribution" and "civil proceedings".

9.After N° 4 of the table 1, attached to Law N° 488 of 23 December 1999, the following article was added:
"4-bis. As for proceedings of probate jurisdiction as well as for special proceedings described in Book 4, title I, except section I, of the Civil Code, the amount ot be payed is indicated at letter B) of number 1 of this table".

10.After N° 5 of the table 1, attached to Law N° 488 of 23 December 1999, the following article was added:
"5-bis. As for cases of  demurrer to executory proceedings, the amount ot be payed is 103,30 Euro. In cases of executory proceedings of delivery this amount shall not be payed".

11. After N° 5 - bis of the table 1, attached to Law N° 488 of 23 December 1999, the following article was added:
"5-ter. As for cases of  renting, gratuitous bail, unauthorized occupation and joint-owners' resolutions, the amount to be payed is of 103,30 Euro".

Art. 2
Ratifications to law n 89 of 24 March 2001

1. After Art. 5 of the Law N° 89 of 24 March 2001, the following article was added:
"Art. 5-bis. - 1. The procedure described in Art. 3 is free from the paying of the consolidated tax according to Art. 9 of Law N° 488 of 23 December 1999."

Art.3
Ratifications to Art. 71 of the actuation rules of  civil procedure code.

1. In Art. 71 of the performance rules of the Civil Code, approved through the Decree N° 1368 of 18 December 1941 and its ratifications, the words: " the parties" are substituted by " the parties, their personal data and their tax payer's code number".

Art.4
Temporary rule

1. As for proceedings entering in the official list from the 1st March 2002, date of entry into force of this decree, and as for the proceedings already entered in the official list on 1 March 2002, whose applicant have alredy payed 50% of the amount, no compensation, repetition,  or integration is  due.

Art. 5
Entry into force

1. This Decree enters into foce the day after its publication on the Italian Official Bulletin and it shall be submitted to the Chambers to became a Law.

WHERE TO SUBMIT APPLICATIONS

The trial was held into a legally recognised office of the Court of Appeal of:

The equal compensation application for excessive length of trial shall be submitted to the court of Appeal of:

Roma Perugia

Perugia Firenze

Firenze Genova

Genova Torino

Torino Milano

Milano Brescia

Brescia Venezia

Venezia Trento

Trento Trieste

Trieste Bologna

Bologna Ancona

Ancona L’aquila

L’aquila Campobasso

Campobasso Bari

Bari Lecce

Lecce Potenza

Potenza Catanzaro

Cagliari Palermo

Palermo Caltanissetta

Caltanissetta Catania

Catania Messina

Messina Reggio Calabria

Reggio Calabria Catanzaro

Catanzaro Salerno

Salerno Napoli

Napoli Roma

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