di Avv. Massimiliano BLASONE
Foro di Trieste
- A) EMERGENCY LAW
Trying to ease coronavirus’s impact on society and the market economy, the Italian Government has adopted, between February and April of this year, numerous measures contained in three Decree-Laws. These have to be coordinated with the Prime Minister’s decrees issued in accordance with the state of emergency declaration.
These measures have been introduced gradually, in line with coronavirus’s spread, not only in time but also geographically. It is important to note that many of these measures have been disregarded causing the Government to intervene with stricter containment rules.
The last of them is Decree-Law number 18 of 17.03.2020, known as “Cura Italia” Decree. It contains complex interventions regarding the Nation Health Service’s reinforcement; it also includes economic measures to assist families, workers and companies. This Decree applies to the entire national territory and has to be turned into law by the Italian Parliament in appr. 60 days.
Art. 83 intervenes also in the Civil Justice field. This intervention aims to achieve two principal goals:
1) to suspend and postpone all procedural activities so as to reduce the possibility of infection;
2) to neutralize the negative effects on the protection of the rights, due to the postponement of most procedural activity.
To achieve these purposes, the Law-Decree has divided the immediate future into two different temporal phases (from 9.03.2020 to 15.04.2020 and from 16.04.2020 to 30.06.2020) applying to them different regulations. With a new Law-Decree of 6.04.2020, containing urgent measures for businesses, strategic sectors, elections and justice, the Government provided for the postponement of the term from 15 April to 11 May.
For this reason, art. 83 laying down urgent measures regarding civil, criminal, military and fiscal Justice, taking into account the postponement of the deadline fixed by the April Decree, regarding civil proceedings stipulates that:
A.1) PHASE 1 (from 9 March 2020 to 11 May 2020):
The hearings in currently pending proceedings are automatically postponed to a later date, after 11 May 2020. This postponement applies to all Italian courts.
So, according to this Decree, the expiry of terms for all civil proceedings, including enforcement procedures, is suspended. The terms for the adoption of judicial acts and their motivation are suspended as well.
If a term commences during this period, it will be considered as commencing at the end of the said period (i.e. on 12 May).
These measures do not apply in certain cases, namely:
– cases falling under the jurisdiction of the Juvenile Court, regarding the issuance of declarations of adoptability, unaccompanied foreign minors, minors who have been removed from their family and situations in which serious damage is possible;
– cases regarding alimony or maintenance obligations that result from family relationships, from kinship or wedding;
– precautionary proceedings connected to the protection of fundamental rights; urgent proceedings that regard the protection of mentally or physically incapacitated citizens, such as the interdiction, the incapacitation and the supporting administration.
– proceedings for the adoption of protection orders against domestic violence; proceedings of validation of expulsion, removal and retention of European and non-European citizens; proceedings for the suspension of the executive effect or the enforcement of a first instance judgement and for the suspension of the enforcement of a second instance judgment challenged before the Court of Cassation.
– all proceedings in which postponed examination could cause serious prejudice to the parties. In this case, the urgency declaration is issued by the Court President or by a judge authorized by him, with a non-challengeable decree, placed at the end or sideline of the main act. By contrast, if the action has already started, the judge in the case (the examining magistrate or the Court’s President) shall issue the aforementioned declaration.
The terms regarding proceedings of mediation, compulsory settlement negotiations with the assistance of lawyers and other types of alternative dispute resolution are also suspended, if the mentioned proceedings have commenced before 9 March 2020 and when these proceedings serve as a condition for the admissibility of the lawsuit. In other words, the suspension of the terms for conducting these ADR proceedings leads to extension of their maximum duration.
A.2) PHASE 2 (FROM 12 MAY TO 30 JUNE 2020)
The court presidents, after discussion with the Health Authorities and with the legal profession’s representatives, could enact organizational measures. The evaluation has to be done on a case by case basis depending on the coronavirus’s spread and trend.
In particular, they could:
a) limit public access, ensuring in any case the access of people who have urgent tasks;
b) limit, after discussion with the heads of court administration, the opening hours of courts. It is also possible to close to the public the offices that do not provide urgent services;
c) regulate access to the services, for example, by requiring reservations, including electronic ones; it is necessary to ensure that the hearings will be scheduled for fixed times; all measures to avoid gatherings must be taken.
d) adopt binding guidelines on the scheduling and carrying out of hearings.
e) order all criminal hearings, special and individual hearings and public civil hearings to be conducted behind closed doors.
f) provide that hearings, in which the presence of other people apart from lawyers, is not necessary, have to be conducted through remote connection. The judge has to communicate, before the hearings, all useful information to the lawyers: the day, the hour and the connection’s modalities.
g) order the postponement of hearings after the date of 30 June 2020, with the exceptions of art. 83.3;
h) provide that, in hearings in which the presence of other people apart from lawyers is not necessary, there shall be electronic exchange and deposition of written notes, containing only the claims and the conclusions, with subsequent adoption of the judge’s act.
These measures could be adopted also earlier, for proceedings that are not suspended.
A.3) COMMON PROVISIONS TO BOTH PHASES
From 09.03.2020 to 30.06.2020, all acts and documents regarding a civil proceeding, have to be filed electronically. The payment of judicial fees also needs to be done by electronically.
B) EFFECTS OF THE DECREE KNOWN AS “CURA ITALIA” ON ENFORCEMENT PROCEEDINGS
The decree does not limit the creditor’s right to impose distraint on debtor’s property. However, it obligates court presidents to adopt organizational measures to ensure access to the bailiff’s office. This office could not be closed to the public also in this period of emergency. So, for example, only the opening hours could be limited and/or public access could be regulated to require a prior reservation.
The decree does not allow the bailiff to suspend or postpone the enforcement, so the bailiff has to conduct it. He has to carry out his duties applying all safety measures, especially in movables’ distraint; he can also require police assistance. He can also remove people who disturb the exercising of his duties, in particular when it is not possible to respect the requirement for preserving one meter of distance from each other. The imposition of distraint over vehicles (car, motorbike and trailer), can be carried out through the sending of a certified email p.e.c. to the competent public register. office, known as P.R.A.
Reading Decree “Cura Italia”, we can see that, regarding enforcement, applies only the deferrals to the hearings and the suspension of terms to the procedural acts in enforcement.
B.1) Hearings
According to art. 83, sub. 1, the hearings concerning enforcement, if scheduled in the period between 09.03.2020 and 11.05.15.04.2020, must be postponed until a date following 11 May 2020. According to art. 83, sub. 7, g), the hearings scheduled later, in the period between 12.05.2020 and 30.06.2020, could be postponed, with an act of the court president.
According to art. 83, sub. 2, the suspension of terms from 9.03.2020 to 11.05.2020 (38 days) applies also to all enforcement proceedings, namely:
B.2) writ of execution
– the period of not less ten days within which the debtor has to be notified of the writ and given an opportunity to fulfil his obligations resulting from the enforceable title under penalty of enforcement action is not suspended because it is not a procedural term.
– the period of 90 days within which enforcement has to be started, under the penalty of ineffectiveness of the writ of execution, is suspended in the period between 9 March 2020 and 11 May 2020. For the writs of execution that have already been notified in this period, the term will commence as of 12 May 2020. However, the suspension or the deferral of this term does not prevent the creditor in progress to start enforcement in the period between 9 March and 11 May 2020.
B.3) for real estate enforcement the terms are suspended for:
– the service of document of real estate distraint (within 90 days from service of document of the writ of execution);
– the registration in the courthouse of the distraint (within 15 days from delivery of foreclosure notification act);
– the application for conducting the sale (within 45 days from service of document);
– the filing of cadastral documentation/notarial relation (within 60 days from filing the sale application);
B.4) for the forced liquidation of loans of third parties toward the debtor the terms are suspended for:
– the service of the distraint document (within 90 days from serving the writ of execution);
– the registration in the courthouse of the distraint (within 30 days from the delivery of the notification of the foreclosure);
B.5) for enforcement over debtor’s movable goods the terms are suspended for:
– the service of the distraint document (within 90 days from serving the writ of execution);
– the registration in the courthouse of the distraint (within 15 days from the delivery of the notification of the foreclosure);
– application of sale (within 45 days from service of distraint document).
B.6) enforcement of the obligation to deliver immovable property, even if it is for residential use, is suspended until 30.06.2020.
This law has to be considered as exceptional, so it cannot be object of analogical interpretation: therefore, the suspension of enforcement cannot be applied to the execution of the eviction order or the transfer decree done by the Judicial Guardian.
B.7) enforcement of the obligation to deliver movable property:
Art. 83 does not allow suspension or postponement of the enforcement of movables. The bailiff can use the powers of art. 513 of Italian Civil Procedure Code, including requiring police assistance. He can remove people who disturb him in exercising his duties, in particular when it is not possible to respect one meter of distance from each other.
- 8) For the enforcement of an obligation to perform (or not to perform) a specific act:
Art. 83 does not allow to suspend or postpone the filing of the starting act of the procedure. However, the hearing will be scheduled after 30 June 2020.
- C) CIRCULARS ADOPTED BY COURTS ON REAL ESTATE ENFORCEMENT
To provide operative references regarding the implementation of the Decrees, all Italian Courts have adopted internal circulars concerning real estate enforcement; these, often, are the effect of discussions between judges and Professional Delegates.
These acts are not uniform. They differ from each other especially regarding the duration of suspension of the delegated professional and judicial custodian’ activities, it could last until 31 March, until 15 April, until 31 May or until 30 June 2020; it depends on individual Courts.
In any case, the suspension applies to:
– the drafting, filing and publication of sale’s notices and the public advertisement of the sale’s notices already filed;
– the custodian and evaluator’s access to the real estate that is object of distraint;
– the real estate’s visits;
– the real estate’s evictions, with the exception of voluntary vacating of the real estate;
– the payment of the price of the auction;
For the auctions, if already scheduled in the period from o8.03.2020 to 30.06.2020, the Italian Courts allow two different approaches:
- a) deferral of the auctions, if they have been already scheduled (already filed offers are valid and the terms for submitting new offers are suspended – from 09.03.2020 to 15.04.2020; as a consequence of the Decree-Law of April, it is probable that other decrees will be issued by the Courts which will defer the term from 15 April to 11 May).
- b) the withdrawal of already scheduled auctions (so, it is necessary to give back paid deposits and republish the sale’s notice scheduling a date for the submission of new offers.
The first approach allows to save the work already done by the delegated professional before the emergency situation. Thus, the professional does not have to re-do the drafting and the publication of new sale notices, to schedule new auctions and to return paid deposits because old offers are preserved. This first guideline is more in line with the efficiency principle that operates in the enforcement field, because there will not be a significant delay.
- D) BEST PRACTICES IN THE ENFORCEMENT FIELD
The lack of uniformity has let delegated professionals and judicial guardians associations to discuss in order to find common best practices. The aims are to ensure parties safety, to promote electronic communication, the use of videoconferences and proceedings continuity, thus simplifying different aspects of delegated professional’s and judicial guardian’s activities due to the use of electronic communications. These could be defined as “good e-practices”, because of the use of electronic means.
Regarding the development of these new practices in the enforcement field, it is suggested that the rules on conducting sales shall be in line with the following principles:
– the delegate professional will approve the distributions plans through a telematic connection between the creditors, sending also communication to the debtor; so there will not be a hearing in front of the execution judge, in the courthouse. Then, the distribution plan will be submitted electronically to permit to the judge to declare it enforceable;
– the delegated professional could be authorized to use the procedure’s banking account with telematic services, as home banking; so, he could easily provide all the payments, avoiding physical access at the bank.
– the transfer decree could be made by the delegated professional in electronic form and communicated to the courthouse electronically. The judge could review and sign digitally.
– the evaluator could be allowed to do a virtual tour of the good that is object of distraint in order to permit the custodian to give interested people an electronic view, not only a “physical” exam of the good itself; thus contacts between interested people and the custodian could be avoided to limit coronavirus’ spread;
– custodian’s access to verify the real estate’s good condition could be done rarely;
– visits of people interested to make an offer could be organized by the custodian even beyond the 15-day period as of the request through the Public Sales Portal.
- E) SERVICE OF DOCUMENTS
The emergency law does not deal with the service of documents.
Art. 10, sub. 2, b) of the Law Decree number 9/2020 provided expressly for suspension of communications and the service of documents. However, the new Decree “Cura Italia” does not provide anything else.
The rules provided by Decree number 9 could be applied until 31 of March 2020. Furthermore, this decree can be implemented only in Lombardy Region and to other provinces that have been defined as “red zone” identified in the Prime Minister’s Decree dated 8 of March 2020. So, it could be applied to the people that have their residence, employment or place of business in this red zone.
The rules contained in the “Cura Italia” Decree, instead, could be implemented across all Italian territory until 11 May.
So, in the entire Italian territory, including the red zone, after 31 March 2020 service of documents is not prevented.
However, the terms for conducting procedural acts are suspended, so if a person does not carry out a notification or a communication, he will not fall into any form of preclusion; and for the person who has to do a notification, any procedural terms are suspended. The communications and service of documents performed in the period between 9 March 2020 and 11 May 2020 will ex lege produce their effects after the period of suspension.
We can say, finally, that we hope that the use of electronic notifications will grow even more, not only in order to guarantee the safety of the operators, but also to ensure that the system improves, avoiding delays between the request of a service documents and the receipt by the addressee, even in case of regular notification.
- F) CIVIL HEARINGS
Two new different ways of holding civil hearings are indicated in the emergency law: one documental (i.e. “figurative”) and one remote (i.e. in “videoconference”).
The courts will be able to use them in the period from 12 May to 30 June and also from 9 March to 11 May, only for urgent proceedings (set out in paragraph 3 of Article 3. 83, above).
F.1 DOCUMENTAL HEARINGS
The Superior Council of the Magistrates’ Court in a circular of 11 March 2020 recommends that this type of hearing be allowed.
The use of such a hearing is limited to “civil hearings that do not require the presence of persons other than the defenders of the parties“; therefore those hearings in which the personal presence of the parties is necessary or where other parties such as witnesses, experts, translators, etc. shall participate are excluded from the use of this method.
The use of this tool is possible because of the introduction of the new civil telematic litigation and the subsequent telematic production of the court’s acts and measures. Of course, for those proceedings for which the casefile was partly on paper, as permitted by current legislation, the judges would have to request electronic production of a copy of the paper act in advance and assign deadlines for the electronic filing of synthesized written notes.
F.2 REMOTE HEARINGS
The hearing by videoconference must take place through the applications made available by the Ministry of Justice: Microsoft Teams and Skype for Business (decree of the Director General S.I.A. of 20 March 2020).
The judge will have to inform the parties in advance of “day, time and mode of connection“.
Avv. Massimiliano Blasone – Foro di Trieste
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