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Last update: 12-01-2007
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Bringing a case to court - Italy

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Imagine a situation in which you are in dispute with a company, a professional person, your employer, a member of your family or somebody else in your own country or abroad. In order to solve this problem, you ask yourself a number of questions:



 

TABLE OF CONTENTS

1. Do I have to go to Court? 1.
2. Am I still in time to bring a court action? 2.
3. Am I sure that I should go to a court in this Member State? 3.
4. Which particular court should I go to in this Member State, given where I live and where the other party lives, or other aspects of my case? 4.
5. Which particular court should I go to in this Member State, given the nature of my case and the amount at stake? 5.
6. Can I bring a court action by myself or do I have to ask an intermediary, an officer of the court such as a solicitor? PDF File (PDF File 30 KB) 6.
7. Who exactly do I apply to: to the reception office or the office of the clerk of the court ? 7.
8. In which language can I make my application? can I do it orally or does it have to be in writing? Can I send it by fax or by e-mail? 8.
9. Are there special forms for bringing actions or, if not, how must I present my case? Are there points which must be in the file? 9.
10. Will I have to pay court charges? If so, when? Will I have to pay a lawyer right from the beginning? 10.
11. Can I claim legal aid? 11.
12. When is my action officially considered to have been brought? Will the authorities give me some confirmation that my case has been properly presented? 12.
13. Will I have detailed information about the timing of subsequent events (such as the time allowed for me to enter an appearance)? 13.

 

Questions prior to commencing the court action:

1. Do I have to go to Court?

It might be better to use ‘out-of-court settlement of disputes procedures (q.v.).

2. Am I still in time to bring a court action?

Time limits for bringing court actions vary according to the case. This question of time limits can be clarified with a legal adviser or at an information office on access to law.

3. Am I sure that I should go to a court in this Member State?

See the ' Jurisdiction of the courts‘ theme.

4. Which particular court should I go to in this Member State, given where I live and where the other party lives, or other aspects of my case?

See the Jurisdiction of the courts theme.

5. Which particular court should I go to in this Member State, given the nature of my case and the amount at stake?

See the Jurisdiction of the courts theme.

Procedure for bringing a court action

6. Can I bring a court action by myself or do I have to ask an intermediary, an officer of the court such as a solicitor? PDF File (PDF File 30 KB)

case_to_court_ita_en

7. Who exactly do I apply to: to the reception office or the office of the clerk of the court ?

The party intending to bring a court action can, if entitled to appear in court personally, apply to the giudice di pace, obtain a hearing directly and ask for his own submissions to be heard, which are straight away incorporated in the report drawn up in the registry; it is the applicant who sees that this is conveyed to the respondent

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Meanwhile the registry produces the court bundle.

The practice of conferring with the judge at some stage, even out of court, and fixing a date and time for submissions, is usual. If the individual appears with a representative granted power of attorney in the dispute by means of a separate official document or by a non-official note authenticated by the signatory’s representative, it will be the latter who lodges the required documents in the registry of the judge dealing with the matter, the most important of which is the notification of entering the case on the court lists.

The action is instituted by lodging this notification with the registry together with the bundle containing the original copy of the summons, power of attorney and the papers served.

 If a the party appears in person he must state his place of abode or elect domicile in the Comune where the judge in charge of the case sits.

 The notification itself must specify the sides in the case, power of attorney, the subject of the application, date of serving the summons and of the hearing at which the sides are due to make their first appearance.

This is an essential prerequisite for ensuring the usual course of proceedings.

It is up to the registrar to check the contents and attach all the documents lodged by the sides in the course of the judicial process, as well as records of hearings, steps taken by the judge, records of investigations and disposal of the case.

Once the bundle has been sent to the presiding judge, he appoints an investigating judge or proceeds with the investigation himself.

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8. In which language can I make my application? can I do it orally or does it have to be in writing? Can I send it by fax or by e-mail?

Italian has to be used throughout proceedings.

When hearing a party which does not know Italian the judge has to appoint an interpreter who swears to fulfil his duties faithfully before beginning to interpret.

In the case of an individual residing in an area with a recognised linguistic minority in which the judge is based, he is entitled to use his own language if he does not know Italian and to be provided with every item of the proceedings, in his own language, including the rulings which are originally drawn up in Italian.

An interpreter must also be provided to ordinary and expert witnesses who for some reason contribute to the judicial process with either oral or written statements.

As already explained in reply to Question 1, a party can appear in person before the giudice di pace to submit his applications orally if the dispute does not exceed a value of 516.45 euros.

The judge himself can also authorise the party to appear in court unrepresented in disputes of greater value, depending on their nature and degree of importance.

As regards proceedings before a court, it should be added that in individual labour disputes the individual affected can make application in person, although this must be done in writing, observing the form laid down for summonses drawn up for court cases of that type, followed by the court appearance itself, still observing all standard formalities.

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Finally, the opportunity exists in certain cases for the individual to appear before the judge to make his own submissions in the actual course of judicial proceedings

In fact, it is up to the giudice di pace to summon the sides during the investigative stage and question them freely in an attempt at reconciliation.

This arises from the application of the general principle promulgated under procedural law whereby the judge may, “at whatever stage and level of proceedings,” order the parties in the dispute to appear and be freely questioned.

In stating the rules of procedure for investigation at proceedings at first instance the procedural code also adds that at the first hearing the investigating judge questions the parties attending and, depending on the nature of the case, attempts to reconcile the parties.

According to procedural law, moreover, any failure to appear without good reason is (a type of) behaviour which may be taken into account.

The same applies to the first appearance dealt with the Court of Appeal; the judge will make an attempt at reconciliation “ordering the parties to appear in person where necessary.”

This is generally recognised as applying to those who, with no intention of obtaining admissions, have the procedural role of offering explanations on the facts of the case; no representative is required to attend.

Informal questioning directly takes on a particular significance in disputes over compulsory contributions and welfare and the principle is generally agreed that this falls within the judge’s range of duties and also applies to second instance proceedings if indicated.

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These are powers exercised by the judge at his own initiative, whereas the two sides can do no more than submit their requests.

Participation in person of incapacitated and disabled individuals during the course of the judicial proceedings is also set out explicitly in proceedings for incapacity and disability; this also applies to the apparent heirs in case of decease and anyone who may acquire rights and entitlements or liabilities in the event of apparent decease.

Lastly, this is also the case with divorce or legal separation proceedings, where attempts are made to bring about reconciliation or settlement of the marital estate.

While recognising that participation of a defence lawyer qualified to act in the proceedings is essential, the law does make broad allowance for the practical need for direct contact between the judge and the two parties at certain points in the judicial process when attempting to bring about reconciliation or ascertaining useful information from them orally.

Many court offices have facilities for faxing and receiving e-mails but no complete overall system has yet been set up countrywide enabling court users to submit documents and requests by these means with properly guaranteed reliability and workability.

9. Are there special forms for bringing actions or, if not, how must I present my case? Are there points which must be in the file?

No particular form has been produced for applying to the judicial authorities.

Each party is expected to submit his own case accurately and comprehensibly in his own interests.

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Notification of court listing of the case, to be lodged with the court registry by the applicant, forms the basis of the bundle, to which the court bundle and that of the parties are added.

The contents of each document are specifically set out in law.

In particular, the notification of court listing of the case should give particulars of the parties, the prosecutor who is to appear, subject of the claim, date of serving the summons to attend and date of the first court appearance.

The notification of entering the case on the court lists, copy of the written summons to appear and the notes and records produced are progressively added to the court bundle, as well as records of hearings, judge’s rulings, records of investigations and a copy of the order contained in the judgement, while the plaintiff’s bundle must contain the original of the summons to appear, power of attorney and any written exchanges.

The defendant’s bundle will contain the statement of response, copy of the summons served, power of attorney and any written exchanges.

All the above is placed in a folder with several different divisions and stored by the registrar, who is responsible for its safekeeping and for rejecting bundles from the parties which do not contain the necessary documents.

10. Will I have to pay court charges? If so, when? Will I have to pay a lawyer right from the beginning?

A standard fee is payable in advance for any proceedings to the offices of the inland (tax) revenue, which comes under the Ministero delle Finanze (Ministry for Financial Affairs). The sum varies according to the type of proceeding to be initiated, amounts at stake and the level of court involved.

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A whole set of different proceedings exempt from payment of fees are specified by law, however, these being selected according to legislative policy criteria by Parliament depending on the nature of disputes and their social implication.

Exemptions apply mainly to

  • amendment to civil status
  • enforcement of orders for consigning and release
  • suits for due compensation for damages ensuing from sentencing of excessively long duration
  • a set of proceedings regarding the family and status of individuals
  • proceedings involving amounts under 1,033 euros
  • personal property enforcement proceedings involving amounts under 2,500 euros
  • precautionary proceedings initiated during the course of the case
  • rules on competence and jurisdiction

Stamp duty also applies for sets of documents which, while they may be used by the parties in the course of proceedings, are not necessarily produced for use in court matters as, for example, notary documents, registration of vehicle sales, publishing of wills and entries in the official roll of professional experts for the defence.

Stamp duty of varying amounts apply, depending on the nature and purpose of the document and are accordingly exempt from the set fee if included in a case bundle.

There are no rules governing relations between a party and his representative, which depend on the parties concerned.

11. Can I claim legal aid?

Free legal aid in civil proceedings is guaranteed for defence of individuals of limited means.

Entitlement to legal aid may be claimed for each stage and level of proceedings and applies to those able to show an annual taxable income, for (income) tax purposes, not in excess of 9,269.22 euros.

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Refer to the full account under the heading of legal aid in Italy for any other details of the steps to follow for obtaining (free) legal aid: the choice of a representative, the possible cancellation of the allowance and how to apply for it.

RESPONSE TO COMMENCEMENT OF ACTION.

12. When is my action officially considered to have been brought? Will the authorities give me some confirmation that my case has been properly presented?

Applications are viewed as properly made once a regulatory summons of the respondent as well as a regulatory committal to court have been lodged with the registry of the judge acting in the case.

Once notification of court listing of the case has been submitted, the registrar proceeds to list the case and assembles the court bundle, to which the bundles of he sides to the case will be appended.

The matter first comes to court as proceedings at first instance within ten days of serving the summons to appear, either through the offices of the prosecutor or in person in cases as set out by law.

It should be noted that at any court office the registrar on duty is willing to give proper advice on exactly how to comply with the formalities laid down by law but this is not obtained from the judge, who only makes pronouncements when delivering his ruling.

An applicant who fails to bring a case to court properly lays his case open to all types of legal opposition, including unacceptability, limitation of action or lapse.

The investigating judge is also responsible for checking on the regularity of cross questioning at the hearing fixed for the first appearance of the sides and, when necessary, orders this to be incorporated if the decision is to be delivered in respect of further parties or if the case was brought by or against several parties to an indissoluble relationship.

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The summons to appear may also be renewed officially when found invalid and this rectifies substantive and procedural faults in the application ex tunc.

Attendance of the respondent, in any case, rectifies any fault in the summons.

In addition, an investigating judge may, in his role of checking that the parties are brought to court according to regulations, call on them to regularise documents and actions found to be at fault where necessary.

A limitation period may be set for rectifying a fault in representation, attendance or authorisation, except where it has been ascertained that the time limit has already has elapsed.

Finally, it could be the case that the defendant fails to appear and the investigating judge detects a fault invalidating the notification of the summons to appear; he then sets a fixed time limit for the plaintiff to renew it, thus avoiding lapse thereof.

The intention of the law to avoid faults of form and procedure at the initial stages of judicial proceedings is clear; these could render a judge’s investigative activity null and void subsequently, as time restraints still apply.

13. Will I have detailed information about the timing of subsequent events (such as the time allowed for me to enter an appearance)?

Hearings at which the parties are to appear, as well as investigative and deliberation sittings are held at the times and dates arranged annually by the head of office of the giudice di pace, approved by the presiding judge and agreed with the State Prosecutor.

Meanwhile, at the beginning of each quarter, investigative and deliberation hearings are arranged with names of the magistrates who will officiate.

In the “tribunali” (a lower court) the presiding judge arranges the times and dates planned for the first appearance of the parties by order which is approved by the chief judge of the court of appeal, of which a copy is displayed in every courtroom.

Subsequent hearings will be arranged case by case by the judge appointed to the investigation.

In the “Corte di Appello”, the times and dates when first appearance hearings as well as investigative sessions are to be held are arranged by order of the presiding judge at the beginning of the year and half-yearly.

Public notices are to be displayed in hearings rooms of the court offices by 30 November and remain so throughout the following court year.

The sides can also acquire information on the judge appointed in the case from the registry.

At the Corte di Cassazione (Supreme Court of Appeal), the presiding judge arranges the calendar of hearings in the same way, with the presidente della sezione arranging the dates of dealing with each appeal, of which both lawyers for the defence and the state prosecutor will be advised. They are also advised of arrangements for allocating judges to deal with disputed matters. If a party appears in person, any notification and communication will take place at the stated place of abode or the elective domicile.

« Bringing a case to court - General information | Italy - General information »

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Last update: 12-01-2007

 
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