Analysis-Italy sharpens "guillotine" to cut Europe's slowest trials

[July 13, 2022]  By Emilio Parodi and Gavin Jones

MILAN (Reuters) - Roberto Bachis, a 58-year-old Italian accountant, was acquitted of two charges of fraud in 2019 after 11 years of trials and investigations which ruined his health, his finances and his marriage.

A client arrested for fraudulent bankruptcy in 2008 pleaded guilty and bargained a lower sentence saying she had acted on his advice. Bachis was given three years in prison, only to be cleared on appeal in 2014.

In the meantime, he had been put under investigation in 2013 for another fraud case involving a state contract for solar panels, for which he was finally acquitted three years ago.

"All this completely wrecked my life," says Bachis, who is under treatment for depression after separating from his wife and being forced to take out a mortgage on his home in Sardinia having been unable to work due to his legal problems.

Bachis' story is not unusual in a country where trials drag on so long that accelerating them is a condition set by the European Union to unlock billions of euros of pandemic recovery funds due to Italy through 2026.

The problem deters foreign investment, undermines confidence in the legal system and is a major drag on growth in the euro zone's third largest economy.

"Initial criminal cases in Italy last three times as long as the European average, appeals last eight times as long," says Gian Luigi Gatta, a criminal law professor who advises Italy's Justice Minister Marta Cartabia.

"We are used to it," says Gatta. "Italy is like a cripple so accustomed to limping he doesn't even realise he has a limp."

After numerous previous reforms yielded little success, now Prime Minister Mario Draghi is proposing to scrap trials without a verdict if they go on beyond a set time.

The move came after the European Commission made part of its 200 billion euros ($201 billion) of pandemic recovery funds for Italy conditional on cutting the length of trials by 25% over five years in criminal cases and by 40% in civil ones, where the situation is even worse.

ESCAPING JUSTICE

The reform, probably the most controversial of Draghi's 17-month premiership, is due to be finalised this month. Critics say it will allow thousands of criminals to escape justice.

"You can't simply cut trial lengths by decree, you need a range of measures to make the system work better," says Gian Carlo Caselli, a retired judge and former chief prosecutor of Palermo and Turin.

He called for measures to encourage plea bargaining and disincentives for defendants to routinely appeal verdicts.

It takes an average 361 days for criminal cases to reach an initial sentence in Italy, the Council of Europe, a human rights watchdog, estimates in its latest report. That is the longest of all the group's 46 member states.

And after the first verdict the situation only gets worse.

In Italy, unlike most countries, the defendant has a virtually automatic right to appeal - not once, but twice. And the prosecution can do the same if the defendant is acquitted.

Until this long appeals process is exhausted the previous verdicts have no practical consequences, rather like the score after the first half of a soccer match.

General view of Italy's top appeals court as Italy works on a justice reform to shorten trials, in Rome, Italy July 12, 2022. REUTERS/Guglielmo Mangiapane

ppeals court proceedings are even slower than initial trials, so a final sentence takes more than four years on average. Italy has been condemned by the European Court of Human Rights more than 1,200 times for the length of its legal proceedings, twice as often as any other country.

According to the Justice Ministry's own data, more recent than the Council of Europe's and calculated differently, the average length of criminal trials in 2021 stood at 467 days for initial cases and 784 for first appeals.

Courts are overwhelmed. Prosecutors are obliged by law to open a case if there is a complaint, and everyone appeals because there are no disincentives to do so. A sentence cannot be increased at an appeal and people can even appeal after a plea bargain.

The Bank of Italy has estimated that the slowness of the civil justice system alone subtracts 1 percentage point from Italy's sluggish economic growth every year. It made no estimate for the impact of slow criminal trials.

Under Draghi's reform, if a criminal case goes on more than two years during the first appeal, or more than a year during the second, it will be declared "unpursuable" and dropped without a verdict.

WHITE COLLAR CRIME

Nicola Gratteri, a prominent anti-mafia prosecutor, calls this a "guillotine" which will mean 50% of cases will be scrapped.

"We're talking corruption, embezzlement, white collar crime, this will hurt confidence in the justice system and criminals will be the winners," he said. "You are not accelerating trials, you are truncating them."

After an outcry from judges, the original plan was amended to exclude mafia, terrorism and other crimes punishable with a life sentence.

Justice Minister Cartabia points out the reform also provides for the hiring of 15,000 clerks to lighten judges' workloads, boosts digitalisation in the system, simplifies some procedures and encourages plea bargaining to prevent cases going to court.

Cartabia said in May that European Justice Commissioner Didier Reynders had given the package "a very positive opinion" and she remained in close contact with him.

The EU requirements in Italy's Recovery Plan, known as "targets and milestones", spell out the reductions demanded in trial lengths but leave it up to Rome how to achieve them.

The head of Italy's lawyers' lobby, Gian Domenico Caiazza, called the appeals guillotine a "mess", but said it at least it prevented cases lasting forever, with unacceptable distress for the accused. He called for stronger plea bargaining incentives.

"In Italy 90% of cases end up being tried in court compared with 30% in the United States, so that is bound to clog the system," he said.

($1 = 0.9944 euros)

(Gavin Jones reported from Rome, Writing by Gavin Jones; Editing by Alison Williams)

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