Tuesday, October 18, 2011

How a Civil Lawsuit Works in Italy - Summary of Italian Civil Procedure

How a Civil Lawsuit Works in Italy - Summary of Italian Civil Procedure

An Italian lawsuit is a civil action brought in an Italian Court in which a plaintiff (called ‘attore’) demands a legal remedy for a loss resulting from a defendant (called ‘convenuto’) action.

The Italian civil lawsuit is regulated by the Italian Civil Procedural Code (‘Codice di procedura civile’)

It can be started by filing a summons and complaint or a recourse, depending on the matters of the dispute. The summons and complaint is the ordinary mean to bring a civil action.

Before bringing the action before the Italian Court, the plaintiff must serve the summons and complaint (called ‘atto di citazione’ or just ‘citazione’) summoning the defendant to appear before the competent Italian Judge in a determined hearing to be held.

The summons and complaint must be served by an official bailiff (called ‘Ufficiale Giudiziario’).

After service of the initiating documents, the plaintiff must file the served summons and complaint in the Clerk’s Office in the competent Court of jurisdiction.

The Italian legal order provides for two different Courts of first instance depending on the matters and the value of the dispute:

- The Italian Giudice di Pace (literally ‘Justice of the Peace’), sitting as a sole judge.

- The Italian Tribunale, sitting as a sole judge - in most of the cases - or as a collective, depending on the matter of the dispute.

The Italian Justice of the Peace is an honorary judge with competence on determined and less important matters provided by the civil procedural code: by the way of an example, dispute whose value is lower than €5,000; car accidents up to €20,000.

The Italian Tribunal has a broader and residual jurisdiction, having competence on all the disputes beyond the competence of the Italian Justice of the Peace. In substance, the Italian Tribunal is almost always competent notwithstanding those cases assigned to the Justice of the Peace by law.

If the Italian lawsuit must be started by recourse, because law so requires (e.g. in case of labor lawsuits), it must be filed before the competent Italian Court requiring the Judge to fix a hearing and then the plaintiff must serve the recourse and the Judge’s decree fixing the hearing to the defendant.

During the lawsuit, the plaintiff must give the evidence of his right and the defendant is required to respond to the plaintiff's complaint.

If the plaintiff is successful, an Italian judgment (called ‘sentenza’) will be given in the plaintiff's favor, enforcing his right, or awarding damages, imposing injunctions to prevent an act or compel an act.

The Italian decision of first instance is generally automatically and provisionally enforceable.

After the final decision has been granted, either party or both may appeal from the judgment of the judge of first instance; even the prevailing party may appeal, if, for example, prevailing party wanted a larger award than the one which was granted.

The parties may appeal a judgment granted by the Italian Justice of the Peace before the Italian Tribunal, and a Italian judgment granted by the Italian Tribunal before the Court of Appeals (‘Corte d’Appello’).

The Italian Court of Appeals sits as a collective body. Any Justice of the Peace and Tribunal is included in a determined Italian District of Court of Appeals.

The procedure to bring the action before the Italian Court of Appeals is similar to the procedure followed in the proceedings of first instance.

After the final decision has been made by the Italian Court of Appeals, either party or both may appeal the judgment before the Italian Supreme Court of Cassation (‘Corte di Cassazione’) in Rome.

The Italian Court of Cassation ensures the observation and the correct interpretation of Italian law by ensuring the same application of law in the inferior and appeal courts. Appeals to the Italian Court of Cassation can be just brought as a matter of right, as the Court is precluded to get to the heart of the matter.

Appeals to the Italian Court of Cassation generally come from the Italian Courts of Appeals, but litigants may also appeal directly from the judge of first instance.

When the lawsuit has finally been resolved, or the allotted time to file an appeal has expired, the matter is res judicata.

See: http://marzanolaw.com/lawyer/New_York_City_and_Salerno_Italy_fq524.htm

Please be advised this article is being provided for informational purposes only This article is not intended to provide, and should not be relied on as a source of, legal advice. Marzano & Sediva expressly disclaims all liability based on any information contained in this article.