Acceso a la justicia, sistemas alternativos de resolución de conflictos, perspectivas
| Autor | Vincenzo Vigoriti |
| Cargo | Catedrático de la Facultad de Derecho de la Universidad de Florencia |
| Páginas | 119-131 |
Page 121
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– The underlying theme of the Project, sponsored by the regions of Tuscany and Emilia Romagna in Italy, Valencia in Spain and Aquitaine in France, is access to justice. The objective is to promote a ‘wider culture’ in relation to ADR, but, in actual fact, it is rather more ambitious in that it aims to achieve and offer an alternative to State Justice.
It is worth emphasising immediately that the alternative is not to justice (injustice would be inadmissible) but to a particular way of achieving justice: not an alternative à la justice, mais une justice alternative.
It is commonly agreed that access to State Justice (ie. To ordinary courts) for everybody should be the ultimate goal, and that such objective cannot be achieved due to the negative impact of delays and costs.
However, delays and costs belong to the physiology and not the patholo-Page 122gy of proceedings; the alternative is not the answer to the fact that proceedings go on for too long and cost too much. Rather, it is the desire for variety which is the crucial factor, and even if the issues of delays and costs were irrelevant there would still be an incentive to look for an alternative.
In theory, the court system should be shaped upon the principle that all rights recognised on a substantive level must have an avenue for relief and protection via the state legal process. This is the outcome of both social and legal theories developed during the second half of the Nineteenth Century, innovative when compared with the idea that rights are recognised only if they may be concretely protected (remedies precede rights). in fact, formerly, access to State Justice was only available for certain types of disputes (in common law: taxes, property and major crimes) the remainder being self regulated, with the intervention of lay judges or mediators chosen from influential members of the community.
In reality, however, no country in the world has ever been able to ensure such wide protection, due to a continuing and uniform lack of resources to develop a system which is truly accessible in this way. This is so even in the case of states with greater economic resources.
The mechanisms used to filter and reduce access to the courts have always been those of delays and costs.
Studies as to appropriate timeframes have, to date, been relatively approximate. It is commonly agreed that delays are excessive, but nobody has been able to outline an optimal formula, not even in relation to categories of proceedings (for example, ex parte proceedings, family cases, property matters etc.). Nor has it been possible to ascertain the volume of pending proceedings as a starting point, and the resources which should be allocated to the same (how many judges? how many clerks? how many buildings?). It goes without saying that a reduction in the delays should, by consequence, encourage additional requests for access to justice in such a way as to undermine the efforts made and at the same time calling for further efforts to be made, in a race without end.
Naturally, procedural rules should at least guarantee the maximum return on the resources allocated. At the moment, this is not the case in Italy where 23 different sets of civil procedural rules co-exist, all of which have their respective deadlines, estoppel, etc. as well as the fact that all have intolerable time frames.
The academic world is seriously committed to rationalising and improving the existing law. In contrast with the traditional trial model where the judge’s intervention is required from start to finish, the tendency now is towards aPage 123 trial model where the parties prepare their case, and the judge only intervenes when such case is ripe for decision. All efforts are being made to introduce legal tools which guarantee immediately enforceable decisions, even of first instance courts, as well as tools to discourage appeals etc. This has, without doubt, improved the situation, but there is still much work to be done.
The situation cannot, however, be resolved simply by passing legislation. “Maximum duration by decree” is impossible. Bills which seek to limit the duration of proceedings (to three years in tribunal, first instance court, two years for proceedings before the court of Appeal and two years for proceedings before the court of cassation) do not have any chance of success.
The discussion as to costs is equally complex. Leaving aside the immobilisation of capital, the distinction is drawn between variable costs and fixed costs. The former are required in order to secure legal assistance and are borne by the parties respectively, except in the case of legal aid. Here too, the extent of the problem has yet to be fully appreciated. What should the cost of legal assistance for each trial be? Should it be based upon the value of the matter, or the duration of proceedings, or the activity, or some other criteria? What is clear, however, is that the respective parties are responsible for legal fees, and this cannot be otherwise, although steps may be taken to negotiate fees (and this is possible also in Italy now).
‘Fixed’ costs are those which are necessary to initiate proceedings, and these are less significant. Since the beginning of the Nineteenth Century, the tendency has been towards reducing such costs, which have now been pared down to a minimum in Italy, just as in France and in Spain.
The trend towards reducing costs is the fruit of the Nineteenth Century reaction against the system of the “venalité de la justice” (in the Ancien Régime the parties paid for the service requested in accordance with a fixed fee schedule). Such trend has been followed by other countries. Once again, however, the reduction of costs for the parties increases the...
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