Free ebooks ==> www.Ebook777.com Ius Gentium: Comparative Perspectives on Law and Justice 59 Cornelis Hendrik (Remco) van Rhee Yulin Fu Editors Supreme Courts in Transition in China and the West Adjudication at the Service of Public Goals www.Ebook777.com Free ebooks ==> www.Ebook777.com Ius Gentium: Comparative Perspectives on Law and Justice Volume 59 Series editors Mortimer Sellers, University of Baltimore James Maxeiner, University of Baltimore Board of Editors Myroslava Antonovych, Kyiv-Mohyla Academy Nadia de Araújo, Pontifical Catholic University of Rio de Janeiro Jasna Bakšic-Muftic, University of Sarajevo David L Carey Miller, University of Aberdeen Loussia P Musse Félix, University of Brasilia Emanuel Gross, University of Haifa James E Hickey Jr., Hofstra University Jan Klabbers, University of Helsinki Cláudia Lima Marques, Federal University of Rio Grande Sul Aniceto Masferrer, University of Valencia Eric Millard, West Paris University Gabriël A Moens, Curtin University Raul C Pangalangan, University of the Philippines Ricardo Leite Pinto, Lusíada University of Lisbon Mizanur Rahman, University of Dhaka Keita Sato, Chuo University Poonam Saxena, University of Delhi Gerry Simpson, London School of Economics Eduard Somers, University of Ghent Xinqiang Sun, Shandong University Tadeusz Tomaszewski, Warsaw University Jaap de Zwaan, Erasmus University Rotterdam www.Ebook777.com More information about this series at http://www.springer.com/series/7888 Cornelis Hendrik (Remco) van Rhee Yulin Fu Editors Supreme Courts in Transition in China and the West Adjudication at the Service of Public Goals 123 Free ebooks ==> www.Ebook777.com Editors Cornelis Hendrik (Remco) van Rhee Faculty of Law Maastricht University Maastricht The Netherlands Yulin Fu Peking University Law School Beijing China This publication was sponsored by the China-EU School of Law (CESL) at the China University of Political Science and Law (CUPL) The activities of CESL at CUPL are supported by the European Union and the People’s Republic of China ISSN 1534-6781 ISSN 2214-9902 (electronic) Ius Gentium: Comparative Perspectives on Law and Justice ISBN 978-3-319-52343-9 ISBN 978-3-319-52344-6 (eBook) DOI 10.1007/978-3-319-52344-6 Library of Congress Control Number: 2016963315 © Springer International Publishing AG 2017 This work is subject to copyright All rights are reserved by the Publisher, whether the whole or part of the material is concerned, specifically the rights of translation, reprinting, reuse of illustrations, recitation, broadcasting, reproduction on microfilms or in any other physical way, and transmission or information storage and retrieval, electronic adaptation, computer software, or by similar or dissimilar methodology now known or hereafter developed The use of general descriptive names, registered names, trademarks, service marks, etc in this publication does not imply, even in the absence of a specific statement, that such names are exempt from the relevant protective laws and regulations and therefore free for general use The publisher, the authors and the editors are safe to assume that the advice and information in this book are believed to be true and accurate at the date of publication Neither the publisher nor the authors or the editors give a warranty, express or implied, with respect to the material contained herein or for any errors or omissions that may have been made The publisher remains neutral with regard to jurisdictional claims in published maps and institutional affiliations Printed on acid-free paper This Springer imprint is published by Springer Nature The registered company is Springer International Publishing AG The registered company address is: Gewerbestrasse 11, 6330 Cham, Switzerland www.Ebook777.com Contents Introduction C.H (Remco) van Rhee and Yulin Fu The Chinese Supreme People’s Court in Transition Yulin Fu 13 The Supreme Court of the United Kingdom: A Selective Tribunal with the Final Say on Most Matters Neil Andrews 37 From Courts of Appeal to Courts of Precedent—Access to the Highest Courts in the Nordic Countries Jørn Øyrehagen Sunde 53 The Supreme Cassation Court of the Netherlands: Efficient Engineer for the Unity and Development of the Law R.R Verkerk and C.H (Remco) van Rhee 77 Civil Cassation in Spain: Past, Present, and Future Marco de Benito 97 Squaring the Circle: Individual Rights and the General Interest Before the Supreme Courts of the German-Speaking Countries 131 Tanja Domej The End of Cassation in Chile? Recourse to the Chilean Supreme Court in Civil Matters 149 Pablo Bravo-Hurtado The French Court of Cassation: On the Threshold of a Quiet Revolution? 175 Frédérique Ferrand v vi Contents Changing Faces of Post-socialist Supreme Courts: Croatia and Slovenia Compared 207 A Uzelac and Aleš Galič The Italian Supreme Court of Cassation: Of Misnomers and Unaccomplished Missions 229 Elisabetta Silvestri Introduction C.H (Remco) van Rhee and Yulin Fu Abstract When can a court be classified as a supreme court? This question is rarely asked in discussions about supreme courts, which is surprising Very often it is assumed that courts high up in the judicial hierarchy that produce influential case law can be classified as such, but obviously more is needed if one uses the notion ‘supreme’ This introduction discusses some of the additional requirements that need to be met in order to classify a court as ‘supreme’ as well as the access filters that have been introduced in various jurisdictions in order to allow supreme courts to concentrate on their main tasks The starting point of the discussion is the Chinese Supreme People's Court in relation to a selection of Western supreme courts The Definition of a Supreme Court When can a court be classified as a supreme court? This question is rarely asked in discussions about supreme courts, which is surprising see however Yessiou-Faltsi (1998) Very often it is assumed that courts high up in the judicial hierarchy that produce influential case law can be classified as such, but obviously more is needed if one uses the notion ‘supreme’ For the purposes of the present volume, a court can be described as a ‘supreme court’ if: its main task is deciding individual cases according to rules of procedure by way of a judgment; its judgments are not subject to reconsideration by another court of law or another authority, i.e if its decisions are final and cannot be attacked or submitted to be reconsidered elsewhere; C.H (Remco) van Rhee (&) Faculty of Law, Maastricht University, Bouillonstraat 1, 6211 LH Maastricht, Netherlands e-mail: remco.vanrhee@maastrichtuniversity.nl Y Fu Peking University School of Law, Yiheyuanlu, Haidian District, Beijing 100871, China e-mail: fuyulin65@126.com © Springer International Publishing AG 2017 C.H (Remco) van Rhee and Y Fu (eds.), Supreme Courts in Transition in China and the West, Ius Gentium: Comparative Perspectives on Law and Justice 59, DOI 10.1007/978-3-319-52344-6_1 C.H (Remco) van Rhee and Y Fu its judgments are highly authoritative in the sense that they are not only aimed at providing justice in an individual case but interpret and/or clarify the law, provide for the unity of the law and/or shape the development of the law 1.1 Deciding Individual Cases The first element of the definition concentrates on the characterization of an institution as a court of law A court of law decides cases by way of a judgment (adjudication) and in order to so follows an established procedure If we take this element of the definition into consideration, we must conclude that all of the supreme courts discussed in this volume are indeed courts of law since they decide individual cases according to a set procedure However, the additional tasks of supreme courts are sometimes considerable The Supreme People’s Court of China is a good example Apart from administering justice both at first instance and on appeal (as a second instance), examples of the additional tasks of the court are as follows Together with the Standing Committee of the National People’s Congress and the Supreme People’s Procuratorate, the Supreme People’s Court is responsible for issuing binding interpretations of the law These can be issued in individual cases (in which event they are called, in a manner which brings to mind Roman law, ‘reply’) or have a more general character Nearly every Chinese statute has a corresponding general judicial interpretation issued by the Supreme People’s Court Although the hierarchy of a judicial interpretation is lower than that of law, in practice it is almost as effective as law Here we have a task of the Supreme People’s Court outside the area of the adjudication of individual cases The Supreme People’s Court supervises the lower courts As is stated in the chapter on China, ‘As a political organ and for the administration of justice, the Supreme People’s Court strongly influences the lower courts through its regulations in respect of policy relating to the justice system, the assessment of courts, and judicial reforms … The Court applies the laws and implements the policies and orders issued by the National People’s Congress.’ Obviously, this task is not situated in the area of adjudication It can be qualified as a political task Where the court handles petitions and letters of complaint about the public authorities relative to litigation (she su xin fang), this cannot be qualified as adjudication in the strict sense either The court is responsible for the selection and publication of so-called ‘guiding cases’, a task that is also situated outside the area of adjudication in individual cases These guiding cases can be cases that have been decided by the Supreme People’s Court itself or by lower courts Guiding cases are very significant since courts at all levels of the Chinese judicial hierarchy should refer to these cases when they are trying similar cases The system has been characterized as a ‘precedent system with Chinese character’ but it is obviously different from a system in which the rulings of the supreme court themselves serve as (binding) precedents Free ebooks ==> www.Ebook777.com Introduction To what extent is the Supreme People’s Court where it concerns the first defining element different from the supreme courts that follow Western models (the similarities with the supreme courts of the Socialist Federal Republic of Yugoslavia as described in the chapter on Croatia and Slovenia in this volume should be noted)? It seems that the difference does not so much concern the additional tasks performed by the Chinese court, but the type and number of the additional tasks the court performs For example, due to a strict separation of powers in Western countries, supreme courts are not allowed to act as political organs (at least, not in theory) Politics is often kept at a distance, which also appears where in various Western countries traditional tasks of the Ministry of Justice have been transferred to Councils for the Judiciary These stand between the ministries and the courts and are in charge of, e.g., finances, court staff, court administration and court infrastructure (sometimes the Council for the Judiciary is only responsible for the lower courts, as in the Netherlands, or there is no such Council, as in Chile, where the supreme court exercises these powers, although not as a political organ) These Councils are conceived as non-political bodies Furthermore, the number of tasks outside the domain of strict adjudication seems to be rather extended at the Supreme People’s Court Most of the Western supreme courts have a less extensive number of tasks outside the sphere of adjudication and this allows them to concentrate on the uniform interpretation and development of the law through case law sensu stricto It should be mentioned here, however, that some Western supreme courts (e.g in France and the Netherlands) have been given the task to answer preliminary legal questions of lower courts and in this way they also influence the uniform interpretation and development of the law outside the sphere of strict adjudication 1.2 Final Judgments The second element of the definition of a supreme court implies that the court issues the last and binding decision on the matters in dispute If we take this element into consideration, none of the courts discussed in the present volume can be classified as ‘supreme’ Let us first consider the Supreme People’s Court From a Western perspective, the classification of this court as a supreme court is problematic First of all, the court is answerable to the National People’s Congress and its Standing Committee This means that the court does not act autonomously, but is subject to political bodies or powers Obviously this is not problematic from a Chinese perspective, since a separation of powers in the Western sense is absent and this is in line with the leading political ideas of the country Another reason why the Supreme People’s Court’s (ordinary) judgments are not really final is the existence of the judicial supervision procedure by which cases that have been decided by way of a final judgment and have become res judicata can be reopened This procedure seems to be related to the procedure of Nadzor that existed in the Soviet Union and remnants of which can still be found in the Russian www.Ebook777.com The Italian Supreme Court of Cassation … 231 of cassation and the establishment of a single Supreme Court of Cassation sitting in Rome as the final court of appeals in civil matters took place only in 1923 Leaving aside the historical events that made the Court of Cassation the supreme court of Italy, it has to be underlined that the choice of the French model of supreme court was controversial, at least at the level of scholarly debate The supporters of the French model, who praised the value of a uniform interpretation of the law as a basic condition to ensure the equality of citizens, were criticized by those who denied the usefulness of a court in charge of controlling only the correctness of a judgment on points of law without taking into account the facts of the case that the judgment had adjudicated, in light of the practical difficulty of drawing a clear-cut distinction between issues of fact and issues of law Many expressed their preference for a supreme court following the Austrian model,5 that is, a court of revision, which could also decide the merits of the case after having quashed the judgment appealed against, dispensing with the lengthy procedure of the remand (which could even become a double remand) typical of the French Cour de cassation Legal scholars have emphasized that this debate hid an ideological struggle between two different visions of judicial power:6 a bureaucratic one based on a rigid hierarchy of courts surmounted by the Court of Cassation, as opposed to a less authoritarian idea of judicial organization culminating in a court of revision that did not impose its regula iuris on the lower courts through the mechanics of the remand The Court of Cassation and a strictly hierarchical structure of the judiciary better suited a newly established State and its need to centralize power, as a strategy perceived as necessary in order to maintain the unity of a country that for centuries had been fragmented into different states, each ruled by its own laws, with a particular form of government and judicial organization as well It is not merely by chance that the Court of Cassation, according to the statute on the organization of the judiciary adopted in 1865, had also disciplinary jurisdiction over inferior judges: this further reinforced the position of the Court at the apex of a judicial power structure shaped like a pyramid that judges could ‘climb’, gaining more prestigious functions and higher salaries as long as their careers progressed In the first Code of Civil Procedure of the Kingdom of Italy, enacted in 1865, the appeal to the Court of Cassation was considered an extraordinary one.7 Specific grounds for review were listed The most significant one, not only because it was the one that best elucidated the role the Court was supposed to perform within the judicial system, but also because it has remained the same even in the Code that is in force at present, was the ‘violation or false application of the law’ When the appeal was granted, the Court reversed the judgment under appeal and, in principle, remanded the case to a court of appeals other than the one that had issued the A few pre-unitary States of Italy had a supreme court operating as a court of revision: this was the case, for instance, in the Kingdom of Lombardy-Venice that was part of the Austrian Empire See Taruffo (1980, pp 70–106) See Taruffo (1991a) Arts 517–552 of the Code of Civil Procedure of 1865 232 E Silvestri judgment reversed for a new decision on the merits of the case If the judgment issued by the second court of appeals was attacked for the same grounds as the first judgment, the Court had to decide the appeal by setting up a special panel called Sezioni Unite, vaguely corresponding to an en banc session: if the second judgment was reversed for the same reasons as the first one, the court of appeals to which the case was remanded again had the duty to follow the decision of the Court of Cassation on the issues of law the Court had settled Things did not change significantly until the Fascist Era The 1940s witnessed the enactment of a new statute on the organization of the judiciary and, most of all, of a new Code of Civil Procedure, which entered into force in 1942 and is still in force today, even though a multitude of amendments have modified its contents to a large extent In spite of that, the rules governing the Court of Cassation and final appeal have remained basically the same In the Report prepared by the Minister of Justice Dino Grandi for the final adoption of the Code, and presented to the King of Italy on 28 October 1940, the Court of Cassation was described as ‘the supreme custodian of the unity of the law and, one may say, as its visible symbol’ (my translation) As already mentioned, beginning in 1923 a single Court of Cassation was in operation in Rome Its role as the supreme judicature of the country was strengthened by the statute on the organization of the judiciary, according to which the Court’s role was (and still is, since the statute at hand is still in force) to ‘guarantee the exact observance and the uniform interpretation of the law, [and] the unity of the national law in force’ (my translation).8 New powers were granted to the Court with a view to enhancing its control on the interpretation and application of the law performed by inferior judges In case of remand, the principles announced by the Court in the decision of the quaestio iuris were binding on the court called upon to decide the case anew: therefore, the double remand disappeared and with it, in the words of the Report, ‘an ancient relic of the times when … it was not possible to accept that the judgments issued by the Court of Cassation could bind lower courts without encroaching upon the independence of the judiciary’ (my translation) In perfect coherence with the role of the Court as the ‘sentinel’ watching over a faithful interpretation of the law, the new Code maintained a special appeal that was provided by the previous Code, namely, the appeal ‘in the interest of the law’, an appeal that only the Public Prosecutor could lodge for the sole purpose of having a judgment affected by an error of law reversed, allegedly in the interest of the whole legal system, since no parties could benefit from the decision of the Court After World War II Italy became a parliamentary republic The Constitution of 1948 lays down a variety of rules concerning access to justice, the most important one being the principle according to which: Anyone may bring cases before a court of law in order to protect their rights under civil and administrative law Defence is an inviolable right at every stage and instance of legal proceedings Art 65 of Royal Decree No 12 of 30 January 1940 The Italian Supreme Court of Cassation … 233 The poor are entitled by law to proper means for action or defence in all courts The law shall define the conditions and forms of reparation in case of judicial error.9 An entire title of the Constitution is devoted to the judicial branch (Articles 101– 113) Among the most significant principles regarding the judiciary, one can mention the rule stating that ‘Judges are subject only to the law’ (Article 101(2)) and the rule according to which ‘Judicial proceedings are exercised by ordinary magistrates empowered and regulated by the provisions concerning the Judiciary’ (Article 102(1)), so that ‘Extraordinary or special judges may not be established’ (Article 102(2)) In order to guarantee the autonomy and independence of judicial power, a High Council of the Judiciary (Consiglio Superiore della Magistratura) has been established as a body of judicial self-government, with jurisdiction over employment, assignments, transfers, promotions and disciplinary measures regarding members of the judiciary (Articles 104–105) There is only one constitutional rule that mentions the Court of Cassation: a single rule,10 but a very significant one, since it is the rule that prevents the lawmakers from limiting access to the Court and raises the final appeal to the height of a constitutional guarantee This point will be clarified later in this chapter; for now it seems sufficient to mention the anomaly of the Italian Constitution that, on the one hand, does not offer any specific protection to the right of appeal at large and, on the other hand, ensures an unconditional right to bring a final appeal to the Court of Cassation Finally, it is worth mentioning that Italy has a Constitutional Court, which was established in 1953, but became operative in 1956 The respective roles of the Constitutional Court and the Court of Cassation are well defined and there is no space for conflicts of jurisdiction; in spite of that, often the two courts not seem to be ‘on the same page’, most of all in their respective ‘dialogue’ with supranational courts, such as the European Court of Justice and the European Court of Human Rights.11 2.1 The Appeal to the Court of Cassation: Grounds for Review and Types of Judgment According to the Code of Civil Procedure, the appeal to the Court of Cassation (ricorso per cassazione) is a form of ordinary attack on judgments, which means that a judgment does not become res judicata as long as the appeal can be brought See Art 24 of the Italian Constitution All the Articles of the Constitution are cited in their official translation into English, a translation available on the website of the Italian Senate, at: www senato.it/documenti/repository/istituzione/costituzione_inglese.pdf (last accessed April 2016) 10 Reference is made to Art 111(7) of the Italian Constitution, as amended in 1999 11 See Morelli (2009, No 155, pp 90–99), available at: www.csm.it/pages/quaderni.html (last accessed April 2016) 234 E Silvestri to the Court (or as long as it is still pending before the Court) An appeal to the Court of Cassation can be filed against judgments issued on (first) appeal, which means judgments issued in general by a court of appeals, even though the Code provides for judgments issued by courts of first instance that can be reviewed by the Court of Cassation through a sort of ‘leapfrog’ appeal; furthermore, if certain requirements are met, the parties to a case can agree to skip the first appeal and bring the appeal directly to the Court of Cassation While the review performed by courts of appeals is very broad, so that it can be defined, at least in principle, as a de novo review, the appeal to the Court of Cassation is geared only to specific, statutory, listed grounds,12 all corresponding to particular types of ‘errors’ In fact, it is common to group the grounds for review into two categories, namely, errores in procedendo (procedural errors) and errores in judicando (substantive errors13 or errors affecting either the application of substantive law to the case at stake or the reasoning followed by the lower court in order to arrive at the application of substantive law) The grounds for review making reference to procedural errors concern jurisdiction, subject matter and territorial competence of the court, and the alleged ‘voidness of the judgment or of the proceeding’ Another procedural error may occur if the lower court did not take into account a fact discussed by the party insofar as this fact is ‘decisive’, meaning that it is a fact that, properly examined and adjudicated, could have led the court to reach a different decision: this ground for review is controversial, since it allows the Court to scrutinize the reasons given by the lower court in order to justify its judgment on issues of fact In the recent past the wording of the relevant rule made specific reference to the reasons given by the lower court in support of the judgment: the error depended on their omission, insufficiency or contradictory character This ground for review was criticized, since the Court of Cassation too often showed the tendency to use its control over the adequacy of the reasons supporting the judgment as a pretext to review the judgment itself on the merits, re-evaluating the factual issues of the case and the decision:14 a type of review that is not in line with the role of the Court, whose review should be confined to points of law, that is, to the legal basis of the judgments appealed against The ground for review that best illustrates the function of the final appeal and the role that the Court of Cassation is supposed to play within the Italian legal system is the alleged ‘violation or false application of legal rules’, the quintessential error in judicando The relevant legal rules are the rules laid down by the substantive law applicable to the case at stake; since 2006, collective contracts and agreements are equated to the legal rules whose violation or misapplication constitutes a ground for review According to the Court’s case law, in principle the ‘violation’ of legal rules The grounds for review (of which there are five) are listed by Art 360 of the Code of Civil Procedure 13 The definition of errores in judicando as ‘substantive errors’ is borrowed from Cappelletti and Perillo (1965, p 274) 14 See extensively Taruffo (1991b, pp 135–155), Taruffo (1975, pp 471–599) 12 The Italian Supreme Court of Cassation … 235 occurs when the judge makes a mistake in identifying the rules governing the case at stake, while the ‘false application’ entails a wrong interpretation of the rules that the judge has correctly identified as the ones applicable to the case; furthermore, the Court has identified in its case law which ‘legal rules’ are relevant in order to support an appeal, stating that the concept is broad, so as to include, for instance, European Union law as long as it has direct effect within the Italian legal system As far as the possible outcomes of final appeals are concerned, the Code of Civil Procedure contemplates a few possibilities: the appeal can be declared inadmissible or ill-founded: therefore, the judgment under appeal is affirmed, and becomes res judicata; if the appeal is deemed to be well founded, the Court can – simply reverse the judgment under appeal, for instance when it finds that no Italian courts had jurisdiction over the case or that ‘the action has no basis in law’;15 – reverse the judgment and remand the case to a court of appeals other than the one that issued the reversed judgment, so that the case will be decided anew The court to which the case is remanded, though, is bound to apply the rules of law (in Italian, principio di diritto) that, according to the Court of Cassation, should have been applied by the first judge; – reverse the judgment and decide the case on the merits, insofar as no further findings of fact are deemed necessary This is a relatively new power that the Court has been granted since 1990, but the Court seems very cautious in resorting to this power and dispensing with the remand The case law offers a strict interpretation of the relevant rule: in broad terms, it can be said that the Court is inclined to decide the case on the merits when a decision can be reached based upon the same findings of fact that supported the decision appealed against, a decision that the Court reversed because of an error in the judgment on a point of law; – affirm the judgment appealed against, but correct the reasons given by the lower court in support of the decision reached The error found by the Court of Cassation is considered harmless due to the fact that it does not affect the holding of the judgment under review In principle, the judgments rendered by the Court of Cassation not have any precedential value, since Italy does not follow the doctrine of stare decisis It has been mentioned already that when the Court reverses the judgment and remands the case to a lower court, that court is bound to decide the case anew abiding by the regula juris expressed by the Court, meaning that it must apply the rules of law that, according to the Court of Cassation, should have been applied by the first judge; that aside, it is commonly accepted that the Court’s case law has a de facto binding effect Furthermore, some recent reforms make express reference to the Court’s case law and provide, for instance, that the appeal shall be declared inadmissible insofar 15 Cappelletti and Perillo (1965, p 282) 236 E Silvestri as the judgment under appeal decided the legal issues of the case in accordance with the Court of Cassation’s case law, and the appeal does not offer any elements suitable to persuade the Court itself to overrule (or to confirm) its precedents.16 From this it seems possible to infer that, even in the eyes of the lawmakers, the judgments issued by the Court of Cassation have an authority that is not merely persuasive, in spite of the fact that they cannot be considered officially as binding precedents 2.2 Aspects of the Procedure Before the Court of Cassation The purpose of this section is not to describe in detail the procedure followed before the Court of Cassation, but to mention its main features When the appeal has been filed, no further prosecution is needed; the appeal is discussed orally in a single hearing that takes place before a panel of five justices It is possible, though, that a wider panel is set up (the so-called Sezioni Unite, a panel of nine justices) when the appeal raises specific issues (concerning, for instance, jurisdiction), or issues of law on which the case law of the Court is not consistent, or issues that appear to be important with a view to orienting the decisions of lower courts As an alternative to the ‘ordinary’ proceeding described above, a variety of appeals can be decided through a simplified procedure in chambers This very procedure has been revitalized in recent years, since it has become the procedure by which the Court of Cassation, at least supposedly, can ‘filter’ the appeals with a view to declaring them inadmissible, dispensing with a full scrutiny of their merits It is a sort of ‘fast-track procedure’ that is aimed at reducing the heavy caseload of the Court, by allowing it to reject in limine the appeals that are considered inadmissible Unfortunately, the ‘filtering’ of appeals has proved to be ineffective, due to the unclear criteria according to which appeals should be ‘sieved’, before their grounds for review are taken under consideration Article 360-bis of the Code of Civil Procedure,17 as introduced in 2009, provides that an appeal shall be declared inadmissible when the judgment under review decided issues of law in accordance with the Court’s case law, and the appeal does not offer any elements that could persuade the Court either to overrule its precedents or to confirm them It has been mentioned already that the interpretation of this rule is problematic, since the Court’s judgments (at least officially) not constitute binding authorities Furthermore, an appeal shall be declared inadmissible if it is brought alleging as the ground for review a violation of the principles governing the due process guarantee, insofar as such ground is manifestly unfounded: in this regard, too, the rule is 16 The rule referred to in the text is Art 360-bis of the Code of Civil Procedure: this article is part of an extensive reform of the proceeding before the Court, a reform enacted in 2009 See Silvestri (2010, pp 409–448) 17 See supra note 16 The Italian Supreme Court of Cassation … 237 ambiguous, on account of the fact that the grounds for review are a numerus clausus, and none makes direct reference to the due process clause This clause is included in the Constitution, but to admit that the Court can test the admissibility of appeals using as a point of reference a constitutional principle or even Article of the European Convention on Human Rights and the case law of the Strasbourg Court seems to extend the powers of the Court of Cassation far beyond its role, which is mainly to ensure that the interpretation of the law in force given by inferior courts is correct and uniform throughout the whole Italian legal system In spite of the fact that the Court of Cassation is the court at the apex of the organizational pyramid of the judiciary, its judgments are not necessarily final As a matter of fact, they can be reviewed by resorting to a peculiar appeal called ‘revocation’ (revocazione in Italian) if they are affected by a factual error that emerges clearly from the record of the case, provided that there is a causal relationship between the error and the decision appealed against If the Court of Cassation reverses the judgment under review and decides the case on the merits, other appeals are available against the Court’s decision, namely, other forms of revocation and third-party opposition The Italian Court of Cassation: A Court in Crisis After having described the historical development of the Court of Cassation and the ‘nuts and bolts’ of final appeals, it is time to return to the thesis advanced at the beginning of this chapter, meaning the thesis according to which the Court, in spite of its being the court of last resort in civil, criminal and administrative matters, is not a true supreme court One of the major problems faced by the Court has always been its huge caseload Half a century ago, Mauro Cappelletti and Joseph Perillo wrote: The workload of the Corte di cassazione is extremely heavy On December 31, 1962 there were … 8,516 civil cases pending In 1961, … the Court disposed of … 3,554 civil cases.18 The authors would be flabbergasted if they were confronted with the more recent figures concerning the Court Although no one could deny that contemporary Italy has not much in common with the country studied by Cappelletti and Perillo in the early 1960s, the increase registered in the number of appeals brought to the Court over a period of approximately fifty years is phenomenal It is well known that the Italian justice system is overcrowded, slow and inefficient: this holds true for all courts (courts of first instance and courts of appeals) but especially for the Court of Cassation At the end of 2015, the total number of appeals in civil matters pending before the Court was over 104,000 (which corresponds to a per cent increase in comparison to the number of appeals pending at 18 Cappelletti and Perillo (1965, at p 73) 238 E Silvestri the end of 2014) In 2015 only, approximately 30,000 new civil appeals were brought to the Court.19 Today, the average length of proceedings before the Court is three years and eight months If one bears in mind that in 2001 the average length was two years and two months, it is clear that the trend is for the duration of proceedings to increase If one also takes into account the duration of proceedings before the courts of first instance (369 days) and before the courts of appeals (842 days),20 again simple arithmetic reveals that it takes an ordinary civil case an average of approximately eight years to run its course, from the beginning to the end of litigation In the context of a cumbersome civil justice system, the data concerning the Court of Cassation are particularly alarming if one keeps in mind that in 2015, for the first time in decades, the caseload of Italian courts, both that of first instance and at the appellate stage, registered a decrease in the number of cases filed: as a matter of fact, the Court of Cassation was the only court that experienced the opposite trend, that is, an increase in the number of new appeals, and therefore an increase in its backlog Here it should be useful to emphasize other data concerning the Court of Cassation In 2015, the Court issued no fewer than 26,199 judgments just in civil matters (with a 7.1% decrease in the number of judgments issued in 2014) Of these judgments, the percentage of final appeals that were granted (which in Italy means that the decisions appealed against were reversed) reached a meagre 33 per cent; approximately 60 per cent of the appeals were rejected for different reasons—for simplicity’s sake, one can assume that they were rejected because they were found either groundless or inadmissible for procedural reasons.21 The organizational chart of the Court of Cassation includes the Chief Justice, one adjunct Chief Justice, 357 justices who sit in the different divisions of the Court, plus 37 judges whose duties are vaguely similar to the tasks performed by US Supreme Court law clerks The staff of the Court counts 72 public prosecutors, too, 19 All the data regarding the Court of Cassation come from the statistics accompanying the written text of the speech delivered by the Chief Justice at the inauguration of the Judicial Term 2016: see Corte Suprema di cassazione—Relazione sull’amministrazione della giustizia nell’anno 2015— Intervento in aula di Giovanni Canzio, Primo Presidente della Corte Suprema di cassazione, available at: http://www.cortedicassazione.it/cassazione-resources/resources/-cms/documents/ Relazione_sull_amministrazione_della_Giustizia_anno_2015_deL_Primo_Presidente_Giovanni_ Canzio.pdf (last accessed April 2016) 20 The source of the data concerning the duration of proceedings before courts of first instance and courts of appeals is European Commission for the Efficiency of Justice (CEPEJ), Study on the functioning of judicial systems in the EU Member States Facts and figures from the CEPEJ questionnaires 2010–2012–2013 (Strasbourg, 16 February 2015), available at: http://ec.europa.eu/ justice/effective-justice/files/cepj_study_scoreboard_2015_en.pdf (last accessed April 2016), at p 596 21 See supra note 19 The remaining judgments issued by the Court are miscellaneous, and include decisions by which the Court, for instance, addresses issues of jurisdiction, orders the dismissal of the proceeding for a variety of reasons or provides for the correction of clerical errors in its own judgments The Italian Supreme Court of Cassation … 239 with different ranks and duties Practically speaking, final appeals in civil matters are handled by six divisions, according to the subject matter The Bar of the Court of Cassation numbers almost 60,000 attorneys In the past, every attorney, after having practised for twelve years, was entitled to be admitted to the Bar of the Court; at present, due to new rules laid down by the statute on the re-organization of the legal profession adopted in 2012, the admission to the Bar of the Court has become more selective The high number of attorneys admitted to the Bar of the Court (or, more precisely, the Bar of the ‘Superior Jurisdictions’, namely, the Court of Cassation, the Council of State, the Court of Accounts and the Constitutional Court) matches the extraordinary number of Italian attorneys (approximately 237,000) It may be argued that statistics can be manipulated so as to support any theory one is determined to prove As far as the figures presented above are concerned, no legerdemain is necessary to produce evidence of the fact that the Court of Cassation cannot be a supreme court, most of all in comparison with the corresponding figures concerning the courts of last resort of other legal systems that are closely similar to the legal system of Italy, such as those of France and Spain The Court of Cassation: A Supreme Court or just a Third-Tier Appellate Court? According to the Italian Statute on the Judiciary,22 the Court of Cassation ‘shall guarantee the exact observance and the uniform interpretation of the law, [and] the unity of the national law in force’ (my translation) How can a court buried under the weight of appeals in excess of 100,000 perform this function? Is it conceivable that more than 26,000 decisions issued per year can bring about a uniform interpretation of the law? These are rhetorical questions The point is, though, that there are objective reasons why the Italian Court of Cassation is prevented from performing its institutional role: the unmanageable caseload, due to a backlog which is out of control because of the lack of filtering of cases with right of access to the Court, and the unwieldy composition of the Court itself, which must appear unfathomable to those who are accustomed to supreme courts on which only a modest number of justices sit for the decision of a sensible number of cases The reality is that the Italian Court of Cassation simply provides for a further level of appellate jurisdiction (which is not necessarily the final one), even though, at least in principle, the Court is not supposed to adjudicate cases for the third time on their merits, but should confine itself to quashing the judgments in which it finds errors of law (that is, errors made by inferior courts in the interpretation and therefore in the application of either substantive or procedural law) In the 22 See supra note 240 E Silvestri perception of public opinion, but sometimes even in the misconception of unsophisticated legal professionals, there is no significant difference between the courts of appeals and the Court of Cassation, to the point that the conventional wisdom is that if you lose your case in court, you will have at least two more chances to try your luck, and even a third one if the Court of Cassation quashes the judgment and remands the case to another court of appeals One may wonder whether what this author has defined as the conventional wisdom about the role played by the Court of Cassation depends only on a misunderstanding of the structure of the Italian judiciary or rests on other, more solid grounds And, as a matter of fact, the conventional wisdom turns out to be not totally devoid of merit in light of a legal rule that represents an all-Italian anomaly According to the Italian Constitution: ‘Appeals to the Court of Cassation in cases of violations of the law are always allowed against judgments and against measures affecting personal freedom pronounced by ordinary and special courts.’23 It would be pointless here to elaborate on the ‘original intent’ of the Founding Fathers of the Italian Republic who drafted the Constitution Suffice it to point out that the rule at issue was drafted with the purpose of putting an end to the abuses perpetrated by the special courts established during the Fascist dictatorship: the idea underlying the constitutional rule was to elevate the Court of Cassation to the role of the supreme guarantor of the legality of judgments (whether civil or criminal), so that the Court could become the sentinel of the rule of law and the last line of defence against misinterpretations of the statutes in force Thus, this author is inclined to say that the appeal to the Court of Cassation was provided for essentially in the general interest, and not in the exclusive interest of the parties to a case In other words, it appears reasonable to say that in the eyes of the drafters of the Constitution, the Court of Cassation had to perform what the late professor Jolowicz called a ‘public function’ as opposed to the ‘private function’ that in Italy and in other legal systems is typical of courts of first instance and courts of appeals as well.24 A ‘public function’ that—by the way—is exactly the role that the statute on the Italian judiciary (which I mentioned earlier,25 and which was enacted long before the advent of the Constitution) envisages as the unique feature of the Court of Cassation; furthermore, a ‘public function’ that is perfectly in line with the history of the Court and its institutional development as a ‘filiation’ of the French Cour de cassation 23 Reference is made to Art 111(7) of the Italian Constitution in its official translation into English, available at: www.senato.it/documenti/repository/istituzione/costituzione_-inglese.pdf (last accessed April 2016) 24 Jolowicz (2000a, pp 299–326, b, pp 328–352) 25 See supra note The Italian Supreme Court of Cassation … 241 The Role of the Court of Cassation: A Matter of Interpretation To a certain degree, the Court of Cassation itself is to blame for its own overload and inability to act as a true supreme court Starting in the early 1950s, the Court began to interpret in a very liberal way the constitutional rule mentioned above According to this interpretation, the rule had to be seen as the foundation of the right to an ‘extraordinary’ appeal to the Court in civil matters, available against every judgment and court order that is final (meaning that no legal recourse against them is any longer available) and that affects substantive rights of the parties Another aspect of the interpretation supported by the Court concerned the meaning of the expression ‘violations of the law’ that the constitutional rule lays down as the only ground for appeals to the Court of Cassation: according to the Court, the meaning of ‘violations of the law’ had to be construed in a broad sense, so as to include all the grounds for the ‘ordinary’ appeal to the Court, appeal that is governed by the Code of Civil Procedure As mentioned before, these grounds include, for instance, lack of jurisdiction, lack of venue, and so on, besides the more conventional ‘violation or false interpretation of the law in force’ This ‘new deal’ of the Court opened the way to a rush of ‘extraordinary’ appeals, in addition to the ‘ordinary’ ones, and the trend has never stopped, even though in time the Court tried to reverse its policy, oblivious to the fact that to shut the stable door after the horse has bolted is always a futile act An even more futile act because subsequently the Constitutional Court has stated repeatedly that the appeal to the Court of Cassation is a basic component of the due process guarantee and has the nature of a constitutionally mandated remedy,26 so that the right of access to justice, enshrined in a specific article of the Constitution (Article 24), includes the right to lodge an appeal with the Court of Cassation as well.27 In this regard, it is worth stressing that the Italian Constitutional Court, which very often accentuates the importance of conforming its judgments to the case law of supranational courts, such as the Court of Justice of the EU and the European Court of Human Rights, does not seem to pay attention to the very case law of the latter court: it is well known that the European Court of Human Rights has clarified more than once that the ‘right to a court’ does not necessarily imply the right of having one’s case reviewed by a court of appeals and then again by a supreme court.28 Furthermore, the Italian Constitutional Court seems inclined to overlook another important aspect of the 26 See the decision No 207 of July 2009 issued by the Constitutional Court For an extensive comment to this judgment, see Carratta (2009), available at: www.treccani.it/-export/sites/default/ magazine/diritto/approfondimenti/pdf/3_Carratta_corte_costituzionale.pdf (last accessed April 2016) 27 On the problems discussed in the text, see Silvestri (2001, pp 105–116) 28 See, for instance, Delcourt v Belgium (1970) (Appl No 2689/65, 17 July 1970), paras 25–26; Brualla Gomez de la Torre v Spain (1997) (Appl No 155/1996/774/975, 19 December 1997), paras 37–38; Dunayev v Russia (2007) (Appl No 70142/01, 24 August 2007), para 34 242 E Silvestri case law of the European Court of Human Rights on Article 6(1) of the Convention as regards appeals in civil matters: reference is made to the case law according to which once a Contracting State has chosen to establish an appellate system of courts, it is expected to guarantee its proper functioning, in accordance with the fundamental right to have decisions issued within a reasonable time, too.29 And, as I mentioned earlier, Italy has established de facto a two-tier system of appeals, but it is crystal clear that this system is inefficient and painfully slow: so much for a deferential compliance with the principles laid down by the case law of the European Court of Human Rights Recent Developments Over the years the idea of limiting access to the Court of Cassation, so that it could revert to the ‘purity’ of its function, a function Italian scholars like to define as nomofilachia (which could be roughly translated as ‘the guardianship of the law’),30 has been much debated Even for the supporters of restricted access to the Court it seems difficult to understand that ‘quantity’ is not the only problem, since ‘quality’ matters as well An explanation seems in order: a supreme court is supposed to deal with not only a limited number of appeals, but also appeals that raise important issues of law The adjective ‘important’ can have different meanings: it may refer to issues decided in different ways by different courts of appeals; to issues brought about by new statutes; to issues that have been decided many times by the Court, but on which the Court feels the necessity to overrule its previous case law; and so on In a nutshell, the Court should only deal with appeals raising issues of law that are relevant for the legal system at large In recent decades many reforms have affected the proceedings before the Court of Cassation, but these reforms show that even the lawmakers pay attention only to the quantity (that is, the number of the appeals brought to the Court) and not even attempt to address the problem of their quality And as already mentioned, one 29 In addition to the cases mentioned above, supra note 28, see also, for instance, Khalfaoui v France (2000) (Appl No 34791/97, 14 March 2000), paras 36–37; Kreuz v Poland (2001) (Appl No 28249/95, 19 June 2001), paras 52–55; Liakopoulou v Greece (2006) (Appl No 20627/04, 24 May 2006), para 18 30 The expression ‘nomofilachia’ (from the Ancient Greek mόlo1, the law, and utkάrrx, to protect, to guard) first appeared in one of the ‘classics’ of Italian literature on civil procedure, that is, a monumental work (in two volumes) authored by Piero Calamandrei in 1920 on the Court of Cassation: Calamandrei (1976) Since then, it has become customary to use the expression ‘nomofilachia’ to describe by a single word the role assigned to the Court It may be interesting to remark that not until 2006 did the expression gain a sort of official recognition, appearing (in its adjectival form ‘funzione nomofilattica’) for the first time in a legislative text that modified the rules governing an appeal to the Court of Cassation: see Lupo (2009, No 155, pp 67–89), available at: www.csm.it/pages/quaderni.html (last accessed April 2016) The Italian Supreme Court of Cassation … 243 of the latest reforms established a ‘filtering’ mechanism for appeals;31 but the expected advantages of the new mechanism have yet to be seen Additionally, it must be emphasized that the backlog of the Court is so heavy that the Court is still dealing with appeals that reached the Court before 2009, appeals for which a sort of ‘safe harbour’ has been established At present (April 2016), an extensive bill for the reform of the whole Italian civil procedure is pending before the House of Representatives As far as the proceedings before the Court of Cassation are concerned, only ‘cosmetic’ changes are contemplated, and a generic reference to the need for strengthening the proper role of the Court is made:32 it is worth mentioning that the bill at issue only lays down the criteria that the Government will have to implement, on its turn, with statutory instruments with the view to updating the Code of Civil Procedure Therefore, it is possible that, should the bill be passed and enacted, the Government could ‘pull a rabbit out of a hat’, and come up with some new, allegedly revolutionary reforms that are supposed to restore the Court to its institutional role Conclusions33 What the Italian Court of Cassation needs is the power to select its own cases, not only in order to reduce its caseload, but, most of all, in order to act as a true supreme court It is correct that Italian academia and lawmakers have different ideas as to what role a supreme court is expected to play That said, no one could honestly deny that the crisis affecting the Court of Cassation has reached a critical point, and, in light of that, differences of opinion and ideology should be set aside, at least for the time being, in a joint effort to devise viable solutions that could help the Court regain its dignity as a supreme court The problem is that the constitutional rule granting an unconditional right to bring appeals to the Court on points of law is an 31 See above, s 2.2 The bill mentioned in the text is known as Disegno di legge no 2953-A—‘Delega al Governo recante disposizioni per l’efficienza del processo civile’ It is available on the official website of the Italian House of Representatives (in Italian, Camera dei Deputati), at: www.camera.it/leg17/522? tema=riforma_del_processo_civile (last accessed April 2016) 33 Since this chapter was written the backlog of the Court of Cassation has reached a new peak: in August 2016 the number of appeals pending before the Court stood at 107,000 A set of organizational measures adopted by the Chief Justice paved the way for a significant reform of the procedure before the Court A statute passed in October 2016 (No 197 of 2016) provides that, as a rule, the Court shall handle appeals through a procedure in chambers and render a simplified decision (in Italian, ordinanza); only when the appeal raises questions of law ‘of significant relevance’ will the proceeding include a public hearing, and the decision issued will take the form of a judgment (in Italian, sentenza) It is doubtful whether this reform will bring about any reduction in the clearance rate of appeals, since what the Court needs is an effective method of case selection that would limit the very access to the Court, and not a simple cosmetic change in the procedural rules governing the treatment of appeals 32 244 E Silvestri insurmountable obstacle to any attempts at limiting the flood of appeals reaching the Court Procedural reforms can circumvent the problem, but they cannot solve it Therefore, short of a constitutional amendment, which in light of the present political climate is not likely to happen any time soon, this author is persuaded that for the near future Italy will continue to have a Supreme Court of Cassation, but not a true supreme court Bibliography Acampora, F., Torrente, A., Andrioli, V & Carnelutti, F., ‘Ancora sulla crisi della Cassazione’, Rivista di diritto processuale, 1953, Vol VIII(I), p 141–153 Calamandrei, P., ‘La Cassazione civile’, in Cappelletti, M (ed.), Opere giuridiche, VI, Napoli: Morano Editore, 1976, p 463–496 Cappelletti, M & Perillo, J.M., Civil Procedure in Italy, The Hague: Martinus Nijhoff, 1965 Carratta, A., ‘La Corte costituzionale ed il ricorso per cassazione quale “nucleo essenziale” del «giusto processo regolato dalla legge»’, 2009, available at: European Commission for the Efficiency of Justice (CEPEJ), Study on the functioning of judicial systems in the EU Member States, Facts and Figures from the CEPEJ questionnaires 2010– 2012–2013 (Strasbourg, 16 February 2015), available at: Jolowicz, J.A., ‘Appeal, cassation, amparo and all that: what and why?’, in Jolowicz, J.A., On Civil Procedure, Cambridge: Cambridge University Press, 2000, p 299–326 Jolowicz, J.A., ‘Managing Overload in Appellate Courts: “Western” Countries’, in Jolowicz, J.A., On Civil Procedure, Cambridge: Cambridge University Press, 2000, p 328–352 Lupo, E., ‘La Corte di cassazione nella Costituzione’, in Consiglio Superiore della Magistratura, Giurisdizione e giudici nella Costituzione (Convegno per il 60º Anniversario della Costituzione), Quaderni del CSM, 2009, No 155, p 67–89, available at: Morelli, M.R., ‘La dialettica tra Corte di Cassazione e Corte Costituzionale nell’interpretazione della norma giuridica e nell’applicazione del precetto costituzionale’, in Consiglio Superiore della Magistratura, Giurisdizione e giudici nella Costituzione (Convegno per il 60º Anniversario della Costituzione), Quaderni del CSM, 2009, No 155, p 90–99, available at: Picardi, N., ‘Le Code de procédure civile franỗais de 1806 et le monopole ộtatique de la juridiction’, in Cadiet, L & Canivet, G (eds.), 1806-2976-2006 De la commémoration d’un code l’autre: 200 ans de procédure civile en France, Paris: LexisNexis-Litec, 2006, p 187–196 Silvestri, E., ‘Corti supreme europee: accesso, filtri e selezione’, in Centro Studi Giuridici e Politici della Regione Umbria – Centro Internazionale Magistrati “Luigi Severini”, Le Corti Supreme, Atti del Convegno, Perugia, 5–6 maggio 2000, Milano: Giuffrè Editore, 2001, p 105–116 Silvestri, E., ‘Le novità in tema di giudizio di cassazione’, in Taruffo, M (ed.), Il processo civile riformato, Bologna: Zanichelli Editore, 2010, p 409–448 Stella Richter, M., ‘Problemi attuali della Corte di cassazione’, Rivista di diritto processuale, 1958, Vol XIII, p 481–523 Taruffo, M., La motivazione della sentenza civile, Padova: CEDAM, 1975 Taruffo, M., La giustizia civile in Italia dal ‘700 ad oggi, Bologna: Il Mulino, 1980 Free ebooks ==> www.Ebook777.com The Italian Supreme Court of Cassation … 245 Taruffo, M., ‘Cassazione e revisione: un problema nella storia delle istituzioni giudiziarie’, in Taruffo, M., Il vertice ambiguo Saggi sulla Cassazione civile, Bologna: Il Mulino, 1991a, p 27–50 Taruffo, M., ‘Il controllo della motivazione della sentenza civile’, in Taruffo, M., Il vertice ambiguo Saggi sulla Cassazione civile, Bologna: Il Mulino, Bologna, 1991b, p 135–155 www.Ebook777.com ... when the reopening of proceedings is needed; guiding the review of the reopening of proceedings in the lower courts; and participating in the formulation of the Court’s interpretations of the. .. Overview 1.1 The Four-Level and Two-Instance Court System in China The Chinese court system consists of ordinary courts, special courts, and military courts (as shown in Fig 1) At the core of the structure... Beijing 100871, China e-mail: fuyulin65@126.com © Springer International Publishing AG 2017 C.H (Remco) van Rhee and Y Fu (eds.), Supreme Courts in Transition in China and the West, Ius Gentium: