REPORT ON THE EXCHANGE AND SUMMARY

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Coleen McBride
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1 REPORT ON THE EXCHANGE AND SUMMARY Instructions: 1. The report must be sent to the EJTN within one month after the exchange. 2. Please use the template below to write your report (at least 4 pages). 3. The report must be filled in English or French. If not possible, the report could be written in another language but the summary must be in English or French. 4. Please read the guidelines for drafting the report (in Annex). Feel free to add any other relevant information in your report. 5. The summary (1-2 pages) shall contain a synthesis of the most important information of the report. 6. If you agree for your report and/or summary to be published on the EJTN website, please tick the relevant box below. Identification of the participant Name: First name: Nationality: Netherlands Functions: Judge Length of service: 3 years Identification of the exchange Hosting jurisdiction/institution: Tribunale di Roma City: Rome Country: Italy Dates of the exchange: November 2009 Type of exchange: one to one exchange group exchange general exchange specialized exchange (please specify : ) Authorization of publication I undersigned hereby authorize the publication of this report and/or summary on the website of the European Judicial Training Network. In Leeuwarden On 28 December 2009 Signature

2 REPORT 1. Programme of the exchange Months before the exchange I was put in contact with my Roman tutor,. He asked me which legal subjects I was interested in. I replied that my work is mainly focussed on civil law, and that I would be interested in seeing how civil cases are tried in Italy. I also expressed an interest in Italian criminal law. did not send me an exact programme in advance, but assured me by that he would arrange a programme along these lines. He did, as it turned out. I sat in on a number of hearings in the civil section of the Tribunale di Roma, and on two days I was able to visit the criminal section, one day from the point of view of the prosecutors, the other day next to a judge and several trainee judges. In the civil section I covered a variety of subjects: rental contracts, damages, contracts in general, guardianship, collection of accounts, etcetera. In the criminal section the day with the prosecutors involved cases of fraud, insider trading, corruption and assault. The other day the presiding judge took mainly preliminary procedural decisions, without discussing the merits of cases. The one exception involved a narcotics case, in which the suspect was acquitted due to the weight of the drugs he was carrying: it was considered a dose for personal use. In the months before the exchange, I had taken an individual course of Italian in The Netherlands, to freshen up the knowledge of the language I had acquired in the course of the years. In the week before the exchange started, I took a week's intensive Italian language course at a language institute in Rome, in order to be prepared for two weeks of communication in Italian about legal issues. That turned out to be time well spent, because I found that although I had reasonable knowledge of Italian before I went on the exchange, speaking and listening to it in a professional environment requires thorough preparation.

3 2. The hosting institution The hosting institution, the Tribunale di Roma, is clearly the court of the capital of Italy. Therefore, the Tribunale di Roma is the largest in Italy and consists of 400 judges. The civil law section is located around the Viale Giulio Cesare in two large Palazzi, formerly occupied by the military. Due to its size, the civil section has many highly specialized subdivisions, each section consisting of a number of judges and administrative support staff. In the hearings I attended, judges were never accompanied by administrative staff, they sat alone and took care of administrative formalities themselves. The criminal law section is located on the Piazzale Clodio. I noticed that there were tight security measures to enter the building. Once inside, however, not only the auditoriums were accessible to everybody, but also the judges' and the prosecutors' offices. This was a sharp contrast to my home institution, where access to the offices is limited to the court's employees and occasional guests who need to register and display a guest pass. Access to the civil section is not limited at all, there is no security check upon entering the building. I was told that there are several impediments to the Tribunale functioning more efficiently than it does today. One is the Italian procedural law, the other is lack of funding. The auditoriums were rather small, considering the numbers of solicitors that are involved in each hearing a typical session of one civil judge consists of about 25 to 30 cases. The solicitors in each case have to find their file at the beginning of the hearing, in order to add their written remarks to the minutes of the file. This occurs in the same room, while the judge is hearing other cases. The judge dictates his comments and decisions to one of the case's solicitors, who hand writes the judge's remarks in the minutes of the hearing. Apparently the computers that are available in each room, are hardly used probably because there is no administrative staff present at the hearings.

4 3. and 4. The law of the host country and the comparative law aspect The aspect of Italian law that struck me most while I was attending the hearings at the Tribunale di Roma was the procedural law, and how it contrasted with the Dutch code of civil procedure. In the Italian civil procedure, everything a party wants to do has to be done at the hearing in the presence of the other party's solicitor and the judge, whereas in the Dutch system most procedural actions can be handled in writing. Because of this, the character of the hearings was mainly procedural and only in a minority of the cases did I witness a discussion of the merits of the case. A typical Italian civil session thus involves hearings in about 30 cases, in the majority of which only procedural decisions are taken, and in which the parties concerned are rarely present; the judge only sees their solicitors. In a typical civil case in The Netherlands only one hearing is planned after one written round of the procedure. The hearing is used to talk to the parties of the conflict, in order to discuss and clarify the facts and merits of the case and to investigate whether the parties can reach an agreement to end the procedure. In about 40 percent of the cases an agreement is reached, which relieves some of the work load off the judicial system. At my home court I am the judge who makes the procedural decisions in all civil cases, not just my own. I do that only once a week, on Wednesdays, in my office, in the absence of the parties and only in the cases where our administrative staff is uncertain how to apply the procedural rules from the code of civil procedure and the standard procedural regulations of the Dutch courts. In practice, that means that I only have to decide whether or not to grant parties a hearing or another written brief in up to 10 cases a week, for the entire Leeuwarden civil section. All other procedural matters are handled by our administration, without the intervention of a judge. This is an enormous contrast with the Italian situation, in which for example my colleagues spend much of their time in hearings checking whether or not the summons have been issued correctly, in order to decide whether a party can be declared to be in default. Another procedural contrast that struck me was the way default cases are handled in Italy. When, in The Netherlands, a party is declared to be in default, the claim of the other party is automatically granted if the claim meets certain minimal standards. The judgement can be written by administrative staff and a judge only summarily checks and signs the decision. The merits of default cases are hardly ever cause for further discussion; in one or two cases a year further written development of the claim is required, after which the claim is usually granted. If a defaulted party does not agree with the judgement, they can protest, after which the case is reopened and tried as if they had appeared in the first place. In Italy, however, even in default cases the merits of the case are investigated as if the defaulted party had appeared. On several occasions I found that witnesses were questioned in default cases, in the presence, obviously, of only one solicitor. A default case thus takes about as long as an ordinary case from start to finish. In the hearings where the merits of cases were discussed, I found that the substantial laws of Italy and The Netherlands are largely similar, because both countries belong to the same legal 'family'. Thus, the questions raised about the merits of cases by my Italian colleagues, were approximately the same questions I would have asked in my own cases, because the parameters on which decisions are based are roughly the same. That aspect of the Italian judges' work was very recognisable and I felt that I would had it been necessary have been able to take over this part of the hearings.

5 5. The European aspect of the exchange In the hearings I attended, Community instruments, the European Court of Human Rights (ECHR) or judicial cooperation instruments did not explicitly enter the discussion. Questions about undue delay did come to mind when I attended hearings in the criminal law section. Italian criminal cases can take a long time from start to finish. One of the cases I saw involved an assault that took place in October Whether or not that could be considered undue delay is not up to me to decide, but I found that a number of the judges and prosecutors I talked to were frustrated about their limited possibilities to proceed with their cases more quickly and efficiently. In addition to talking to judges and prosecutors, I also talked to a Dutch/Italian solicitor about her work in an international practice she had started in Rome. She found that relatively few Italian lawyers are able to work internationally because of the language. That confirmed the impression I had during the exchange, that the Italian legal profession is focused more on local and national, than on European and international matters. Having said that, the everyday Dutch legal profession is not much different, especially in a small provincial court like the one in Leeuwarden where I work. I would, however, have expected that the court in Rome might have a more visibly international orientation. On the other hand, I was only able to see a relatively small fragment of the enormous organisation of the Tribunale di Roma. I did not sit in on hearings of sections that deal with international trade issues, where such an international orientation is to be expected.

6 6. The benefits of the exchange To me, it was incredibly interesting to see how my Italian colleagues work. With all the procedural differences, it was striking how similar their approach to working as a judge is to my own. I did feel that the exchange should be beneficial to more than just myself, because I realised that it could easily be considered a holiday to Rome by the people I work with. That is why I decided to write a daily weblog, accessible only to my colleagues in Leeuwarden, judges and administration (as well as to some of my friends and relatives). In my weblog, I wrote about the hearings I attended and the experiences I had. When the readers at home had questions, I could discuss those with my Roman colleagues and that made the exchange more interactive and also gave the people remaining at home the sensation that they could witness the practices in a southern European court. Judging from the response I received on my weblog, and after I returned, this way of sharing the experience with my colleagues was a success. I think it is valuable to realise that people all over Europe do the same work we do, even though the exact way in which they do it may vary according to the rules and traditions of each country. In my own judicial practice I am finding that the experience at the Tribunale di Roma has made me more aware of the fact that my own court is a part of not just a national court system, but also of a larger European network, joined not only by the character of the work but also by joint European rules. This awareness was made much more poignant after spending two weeks at the sides of various Italian colleagues, who made me feel extremely welcome and who in spite of their busy schedules spent much time and energy explaining how they worked and asking me about the way we do things at home. I do think that the Italian colleagues enjoyed hearing about that, and they told me that they would be in favour of some changes to the system, in order to make it more efficient. The time of the exchange coincided with major discussions in Italian politics about changes to the legal system. Politics are not the topic of this exchange, of course, but they were frequently part of the discussions with my colleagues, because of the daily developments and the news stories about the 'processo breve', the reduction of the maximum duration of procedures. As an outsider, it was fascinating to see how judges cope with the reality that their work is the centre of the current political discussion, whereas the essence of the judicial work is that it is carried out continuously and regardless of the colour of the current political landscape. I observed that the Italian colleagues followed the political discussions eagerly and diligently, but realised that their role in the discussion is by definition limited to waiting what the politicians decide and then adjusting to the new situation.

7 7. Suggestions Before going on the exchange, I had been fortunate enough to have talked to a Dutch judge who had participated in the exchange programme previously. She told me what to expect in Italian courts and what the programme would more or less entail. That was very useful to me, but we met by coincidence. It might be a good idea to provide next year's participants with our contact details. I, for one, would absolutely be prepared to discuss my experiences with somebody who is going on the exchange next year. In relation to that, I would also be very interested in learning the experiences of exchange participants from Italy who came to the Netherlands. Perhaps it could be useful for the future to give the same year's participants one another's names, addresses etcetera, so that they can contact one another before and/or after the exchanges. This can serve practical purposes as well, e.g. language training or specific queries about one another's legal systems or terminologies, but also help with more practical aspects of the countries that the candidates are going to visit. Discussing the differences in the systems between The Netherlands and Italy, I found that my Roman colleagues were very interested in going abroad as well, to see how other systems work. They felt limited by their language skills, however, and I think it could be beneficial to the programme if there were more opportunity for people who do not speak the language of the host country, to compare practices. I would like to be able to show judges from other European (and/or other) countries, how we work. And I would also like to be able to see how, for example, the Finnish legal system works, but I do not have the courage to start learning Finnish. I wonder whether it would be possible to adapt the program, in order to give more people also those without knowledge of the applicable foreign language the opportunity to participate in a one-on-one exchange. I realise that language skills are essential to understanding what is going on, but perhaps this problem could be solved by using interpreters.

8 8. Conclusion In the two weeks of the exchange I had the feeling that I was given a good overview of the Italian legal system by some very enthusiastic colleagues. I would recommend this or a similar exchange to any of my European colleagues, because it is good to realise that in spite of the differences in legal systems, we all basically do the same work. With a common set of legal instruments provided by the EU, similarities between the ways of working in the different European nations will undoubtedly increase even further in the future.

9 SUMMARY In my two weeks at the Tribunale di Roma, I was mainly interested in seeing how my colleagues in the civil section work. I spent most of the time there, but also managed to attend some sessions in the criminal law section. The Tribunale di Roma is much bigger than my home court in Leeuwarden, Netherlands. The civil and criminal sections are located in a number of different locations in the city of Rome. Attending the court sessions, I was struck by the differences in procedural law between The Netherlands and Italy. Whereas in The Netherlands nearly all procedural decisions are taken by administrative staff, in reply to solicitors' written requests, in Italy those decisions are taken by the judge during a court hearing at which both parties' solicitors have to be present. This makes the character of the Italian civil hearings radically different from that of the Dutch ones. Also because quite a large number of hearings takes place between the beginning and the end of each Italian civil case. According to Dutch procedural law, only one hearing is organized in each case, at the point in the procedure where the merits of the case can be discussed in the presence of both parties and their solicitors. This defines the character of the Italian and the Dutch procedures, and explains the differences that were visible for me as a spectator. I was not aware of a specific European aspect to any of the procedures I attended. This may have been caused by the fact that I only managed to sit in on a limited number of sessions, in a limited part of the enormous Roman Tribunale. As a Dutch (and European) legal professional, I benefited from the exchange programme, because of the unique possibility to see for myself how my Italian colleagues work. The ability not only to see them work, but also to ask them questions about their work, and to tell them how we do things differently (or the same) in The Netherlands, were very useful, in my opinion. It is always good to ask yourself why you do things the way you do them, and when somebody else asks you that question, you are forced to rethink your fixed patterns. Writing about my experiences every day on my weblog, involved my colleagues at home in the exchange as well, which I regarded as an added benefit of the exchange, as well as my increased Italian language skills. The fact that the exchange coincided with broad political discussions about the Italian legal system, was unforeseeable, but made my stay in Italy even more interesting. Organising contacts between judges who are going on the exchange this year, and the ones who went previously, might be useful for the preparation. The same is true for contact between exchange candidates who are going to Italy and candidates who are visiting from Italy (and other countries, of course). Because of the benefits I see in this exchange, I would be in favour of finding a way to allow people who don't speak the appropriate foreign language, to go on an individual exchange to the country of their choice. The extra expenses for interpretation may well pay off in added efficiency or better understanding of the decisions made by foreign judges. I enjoyed the exchange tremendously and would recommend it to all my colleagues.

REPORT ON THE EXCHANGE AND SUMMARY

REPORT ON THE EXCHANGE AND SUMMARY Instructions: 1. The report must be sent to the EJTN (exchange@ejtn.eu) within one month after the exchange. 2. Please use the template below to write your report (at