Italian experience of the administrative justice functioning

Among the objectives of “exclusive jurisdiction” of administrative courts, the most important are:

1) hearing of cases on appealing against acts of public administration regarding vacancy filling and passing of civil service;

2) monitoring of the legality of acts of public administration on the provision of public services, the list of which includes state lending and insurance, state property, provision of medicine, transport services, telecommunications, electricity, gas services.

3) hearing of all cases related to acts of public administration in the field of Italian Law No 186 “On the structure of administrative jurisdiction and staff of the office and subsidiary bodies of the Council of State and regional administrative tribunals” of 27 April 1982. Retrieved from https://www.un.org/Depts/los/LEGISLATIONANDTREATIES/STATEFILES/ITA.htm. ^{Legislative Decree “On New Provisions on the Organization of Labor and Labor Relations in Public}

Administrations, Jurisdiction in Labor Disputes, Administrative Jurisdiction, Issued pursuant to Article 4 of the Law of March 15, 1997 No. 59”. (1998, March). Retrieved from

https://www.un.org/Depts/los/LEGISLATIONANDTREATIES/STATEFILES/ITA.htm. construction and urban planning.

The “exclusive jurisdiction” of administrative courts is primarily determined by Article 27 of the Unified Text of Laws on the State Council, which contains a list of cases that should generally be heard in courts of general jurisdiction, but due to their specifics were removed from their jurisdiction and transferred to administrative courts. This category of administrative cases includes, in particular, cases of appeals against acts: 1) the establishment of the boundaries of communes or provinces; 2) in respect of road consortia, the activities of which affect the territory of several provinces; 3) on the refusal of the public administration to protect the rights of legal entities; 4) on the functioning of companies engaged in hydraulic works, the activities of which are provided by the state with the assistance of provincial authorities and interested organisations; 5) on the classification of provincial and municipal roads.

In contrast to “exclusive jurisdiction”, “material jurisdiction”, which allows the court to proceed from the expediency of a decision made by a public administration, tends to lose its significance over the years. In fact, the list of issues decided by administrative courts “on the merits” is reduced to a few articles of the Unified Text of Laws on the State Council and the Law “On the Establishment of Regional Administrative Tribunals”. Cases that have retained significance and are heard by administrative courts in the order of “material jurisdiction” include appeals against regulations:

1) on allowing or prohibiting the creation of public charitable and educational institutions;

2) on merger, division, transformation, creation of consortia or other business associations with the participation of public administration, public institutions, as well as institutions equated to them;

3) on hospitalisation of disabled people;

4) regarding support of the mentally ill;

5) the prefect to take measures to regulate or prohibit the activities of harmful industries.

“Material jurisdiction” also extends to the hearing of regulations issued by the mayors of communes on public safety, construction, local police and hygiene. According to the law “On the establishment of regional administrative tribunals”, the administrative court may: cancel the act due to its inconsistency with the law; replace it in whole or in part with another act; oblige the public administration to reimburse the damage or pay the debt incurred before the plaintiff in connection with the adoption of a legal act, which was invalidated by a court of law. The possibility of “changing” the contested legal act is the possibility of the administrative court to extend the application of a similar existing act of public administration to the disputed legal relationship. The administrative court also has the right to invalidate the part of the contested regulation and to indicate the special conditions of validity of the uncanceled part of the same act. “Material jurisdiction” is considered in Italian doctrine as a restriction on the power of public administration [15].

3.3.2 Hearing of cases in the administrative courts of Italy of the first and appellate instances

The legal rules governing the procedure of administrative trial in the administrative courts of Italy are fragmented, as they are contained in a number of legislative acts. Hearing of cases in administrative courts is regulated primarily by the Italian Code of Civil Procedure. All special norms that establish the peculiarities of the procedure for hearing of administrative cases in administrative courts are contained in the Unified text of the laws on the State Council and the law “On the establishment of regional administrative tribunals”. Many provisions of the Unified Text of Laws on the State Council extend their effect not only to the procedure of hearing of cases in the State Council, but also to the administrative procedures that exist within the process in the regional administrative tribunals. These regulations contain a large number of procedural rules. More than half of the norms of the law “On the Establishment of Regional Administrative Tribunals” are procedural norms. The regulation of procedural issues is thus not fully systematic, but at the same time very detailed, which certainly contributes to the lawful, fair and impartial judicial protection of human and civil rights.

When hearing cases of appeal against an act of public administration, the administrative court determines the existence of conditions under which it has the right to accept the statement of claim for proceedings. First, it is permissible only to appeal against acts of public administration that establish or terminate certain legal relations. In the absence of an indication of a specific act in the statement of claim, the court refuses to accept the statement of claim because the subject of the appeal is missing. The act of public administration can be expressed in its omission or so-called “silence”. Thus, according to Article 21 of the Law “On the Establishment of Regional Administrative Tribunals” Italian Law No 186 “On the structure of administrative jurisdiction and staff of the office and subsidiary bodies of the Council of State and regional administrative tribunals” of 27 April 1982. Retrieved from https://www.un.org/Depts/los/LEGISLATIONANDTREATIES/STATEFILES/ITA.htm. a statement of claim aimed at challenging the “silence” of the public administration at the request of the applicant must be heard in court within 30 days (so-called “claims against omission of the public administration”). Such claims are heard by the court in a simplified manner within a reduced period of thirty days. Second, the act of public administration must be an expression of the will of the public administration. Finally, both final and nonfinal decisions of the public administration can be appealed in administrative courts. A decision that has been appealed by a person out of court to a higher instance and in the order of which a higher instance has not yet made a decision is considered incomplete. The parties to the case by the administrative court are, as a rule, the public administration and a natural or legal person as a bearer of a legitimate interest. A body of public administration has the right to appeal in court an act of another body of public administration, if this act, in the opinion of its officials, limits its powers or otherwise violates the law. The defendant is always a body of public administration.

The legislation provides for the possibility of involving in the trial of third parties directly interested in the results of the administrative case. These include those who make and do not make independent claims on the subject matter of the dispute, if the court finds that the judgment may affect the rights and obligations of those who are not parties to the case. As an example of an interested person, we can cite the winner of a public competition, when the final decision of the public administration on the results of the competition is appealed by the person who lost it. In addition, any person interested in the process may take part in it if the court also finds that the review procedure affects the interests of the person. In the first instance, the administrative case of appealing the act of public administration is considered in the regional administrative tribunal. The Law “On the Establishment of Regional Administrative Tribunals” regulates in detail the jurisdiction of cases and their distribution between regional administrative tribunals.

There are three criteria for delimitation of jurisdiction: 1) according to the location of the public administration that issued the contested act; 2) within the scope of the act of public administration; 3) at the place of civil service by a civil servant in regarding whom the contested act was issued. According to the criterion of location of the body of public administration that issued the act, the administrative case is considered in the regional tribunal of the region in whose territory such body of public administration exercises its powers. If the act extends its effect to more than one area, the competent tribunal is the tribunal in whose territory the body of public administration that issued the act is located. In the event that the act extends to the entire territory of Italy, the competent court is the regional administrative tribunal of the region of Lazio, located in the city of Rome. According to the scope of the act, there are two possibilities for determining jurisdiction. The court of a particular region may be considered competent when the act extends its effect only to the territory of that region; if the act extends to two or more regions, the regional administrative court of Lazio will be competent. The third criterion for distinguishing administrative cases applies only to public law disputes involving civil servants who defend their legitimate interests in court. A statement of claim may be filed by civil servants in the court of the region in whose territory the public administration body is located. In cases with inter-region or central bodies of public administration, the administrative case will be subject to the regional administrative tribunal of the Lazio region. At the same time, the defendant or any other participant in the proceedings has the right to demand recognition of the jurisdiction of the court. In this case, the person submits a request for consideration of the issue of jurisdiction to the State Council, and must reasonably indicate in which court, in his opinion, the case should be considered. The petition shall be filed no later than twenty days from the beginning of the proceedings or may be filed at a later date, when the territorial jurisdiction of the case will be revealed as a result of the submitted documents, of which the party filing was unaware. The petition cannot be submitted at the stage of decision-making by the court in an administrative case.

If all parties agree to the request to transfer the administrative case to another regional administrative tribunal, the chairman of the tribunal shall refer the case to another court and notify the parties, who shall apply to that court within twenty days of receiving notice of the transfer to another court. In other cases, the court makes a decision to deny the petition or to transfer the case to the State Council for further determination of jurisdiction. The decision of the Italian State Council regarding the jurisdiction of an administrative case is binding on the regional administrative tribunals. If the State Council satisfies the request to postpone the case in another court, the plaintiff may send a statement of claim to the territorially competent regional administrative tribunal within thirty days from the date of the request satisfaction.

The Law “On the Establishment of Regional Administrative Tribunals” Italian Law No 186 “On the structure of administrative jurisdiction and staff of the office and subsidiary bodies of the Council of State and regional administrative tribunals” of 27 April 1982. Retrieved from https://www.un.org/Depts/los/LEGISLATIONANDTREATIES/STATEFILES/ITA.htm. pays special attention to the issue of distribution of cases between departments of one regional administrative tribunal, which has already accepted the claim. The chairman of the tribunal distributes cases between departments located both in the administrative centre of the region and in other cities of the region. The party to the case, considering that the statement of claim should be considered by the regional administrative tribunal located in the administrative centre of the region, should submit to the court in this case its objections.

The head of the regional administrative tribunal investigates the objections, hears the parties to the case and issues an order that is not subject to appeal. In any case, the fact that the decision was made by a regional administrative tribunal located in the administrative centre of the region or located in another city may not be grounds for reconsideration of the administrative case. One of the key powers of the administrative court in handling the case is the ability to take measures to secure the claim. The administrative court, as well as the court of general jurisdiction, has the right to apply such measures to secure the claim as, for example, prohibiting the defendant or other persons to take certain actions in relation to the subject matter of the dispute. In addition, the administrative court is empowered to suspend the contested act of the public administration body until the moment of its decision in the administrative case and the closure of the proceedings. The plaintiff has the right to demand that measures be taken to secure the claim in connection with great damage and/or irreparable negative consequences caused by the adoption of an action or omission of a public administration body at the time of court proceedings, such as a court decision prohibiting payment. Measures to secure the claim are regulated in detail by the Law “On the Establishment of Regional Administrative Tribunals” Italian Law No 186 “On the structure of administrative jurisdiction and staff of the office and subsidiary bodies of the Council of State and regional administrative tribunals” of 27 April 1982. Retrieved from https://www.un.org/Depts/los/LEGISLATIONANDTREATIES/STATEFILES/ITA.htm.. Italian law also regulates the application of temporary precautionary measures by a court. These are the cases when, in case of extreme necessity, at the request of the plaintiff, the administrative court decides on the immediate entry into force of measures to ensure a temporary claim. After hearing the motions of one of the parties to the case to take measures to secure the claim, the regional administrative tribunal may order hearing of the administrative case on the merits. If the public administration body does not implement the preventive measures established by the court or partially implements them, the interested party may submit a request to the regional administrative tribunal to take action by the tribunal to implement preventive measures. The regional administrative tribunal has the right to intervene in the implementation of preventive measures to ensure the claim, indicating the procedure for their implementation. Italian law also regulates in sufficient detail and clearly the submission of evidence by the parties in an administrative case. They shall be filed within twenty days following the filing of the statement of claim, by the body that issued the contested act, and by other interested persons. The main evidence is documentary. The Italian doctrine assumes that individuals cannot be required to present evidence which they are unable to do. Documents, explanations of public authorities, etc. are recognised by law as admissible evidence in Italy. The procedure of hearing of the case in the administrative court provides for the possibility of cancellation by the public administration of the contested act during the trial before the beginning of consideration of the administrative case. If during this period the public administration body cancels the contested act or brings it in line with the requirements of current legislation, the regional administrative tribunal closes the proceedings and distributes the costs between the parties in the administrative process. It is necessary to stipulate separately the terms of hearing of the case of claim by the administrative court. One of the main problems of the Italian judicial system is the unreasonable length of proceedings in court, which goes beyond reasonable time limits for hearing [16]. Italian law does not set a deadline for hearing of the case of claim and decision-making on it. Only the deadline for the beginning of the discussion of the statement of claim in court is set - two years from the moment of filing the statement of claim in court. The court itself may, at its discretion, postpone the commencement of proceedings within the specified period [17]. It is considered that the plaintiff withdraws his claim in the event that no proceedings take place within two years. Thus, only the agreement of the date of hearing can take two years, and the process itself can be stretched even longer. Shortened terms of hearing of the statement of claim are established only for a certain category of administrative cases. In this case, all procedural deadlines are reduced by half, including the appointment of the start date of the administrative case [18-20]. This category includes administrative cases related to decisions on the formation and operation of local governments, surety procedures for the design of buildings, distribution and execution of works of public importance, as well as decisions on the forcible seizure of land for public use.

The State Council is the appellate instance when considering administrative cases on appeals against acts of public administration. In exceptional cases, the State Council hears cases as the first and only instance. This occurs when appealing against acts of public administration related to the enforcement of decisions of general courts, when the execution of a court decision is entrusted to the central or public administration bodies of an interregional nature. The State Council also hears cases of special importance as the first instance, which are sent from the regional administrative tribunals to the State Council on the initiative of the Italian Government and with the consent of the parties to the proceedings. The procedure for hearing of administrative cases by the State Council as a first instance is similar to the procedure for hearing of administrative cases by regional administrative tribunals.

The main function of the State Council of Italy is to investigate appeals against decisions of regional administrative tribunals. An appeal against a court decision shall be filed within sixty days from the date of this decision by the regional administrative tribunal, and in disputes in cases related to the election process - within twenty days. Filing an appeal does not suspend the decision of the regional administrative tribunal, as the latter comes into force from the moment of adoption. Only upon hearing of the appeal may the decision of the regional administrative tribunal be reconsidered. However, in the presence of a petition and in case of possible serious consequences in connection with the execution of the decision of the regional administrative tribunal, the Italian State Council has the right to suspend the decision of the court of first instance until the end of the appeal. The process of reviewing an appeal by the State Council against a court decision is as simplified as possible. On the appointed date for the discussion of the appeal, the responsible counsellor of state shall publicly announce the prepared report on the administrative case. Decisions of the State Council are made by approving them by an absolute majority of votes of state advisers of the department that investigates the administrative case. Advisers who have previously expressed their position regarding the advisory department on an issue that forms the subject of an appeal in an administrative case may not participate in decision-making and voting. Thus, counsellors of state who took part in the procedure of discussion by the State Council of the government bill, which was later adopted and became the subject of appeal in the State Council of Italy, are excluded from participation in the process.

The State Council of Italy may, by its decision on the outcome of the appeal, satisfy the appeal or refuse to satisfy it. Upon satisfaction of the appeal, the State Council may act of the public administration or return the administrative case for a new examination to the regional administrative tribunal. The case may be remanded only if the Italian State Council overturns the decision due to a violation of procedural law committed by the court of first instance, or if the regional administrative tribunal erroneously found no powers to investigate an administrative case.

CONCLUSIONS

The jurisdiction of administrative justice bodies is complex. The delimitation of competence between different bodies of administrative justice directly by the norms of the Constitution of Italy has avoided jurisdictional disputes between these authorities. In addition, the determination of the jurisdiction of public-law disputes by the bodies of administrative justice is determined by a number of legal acts of Italy. The main criterion for determining the jurisdiction of administrative courts is to appeal the act of public administration in violation of the legitimate interest. However, the current legislation of Italy establishes numerous exceptions to this rule, in many areas of legal relations there is a specificity of determining the jurisdiction of administrative cases.

The system of judicial bodies of administrative justice, the procedure of hearing of administrative cases of different categories, the legal status of “quasi-judicial” bodies of administrative justice, which are endowed by law with certain functions of justice, but which are not judicial authorities, were also defined. Exercise of power and fulfilment of the constitutional function of protection of rights, freedoms and interests of citizens from illegal decisions, actions or omissions of the state represented by its power entities is the main task of administrative justice, which is entrusted to the Italian State Council, regional administrative tribunals and “quasi-judicial” authorities. The division of jurisdiction between “quasi-judicial” bodies of administrative justice, administrative and courts of general jurisdiction was also determined, which allowed to clearly delineate the competence of different courts in order to most effectively protect the rights, freedoms and interests of individual and citizen.

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