September: the judgment of the month

September: the judgment of the month

With the recent ruling no. 17325 dated 25 August 2016, the Supreme Court held that under the “Rite Fornero,” the non-notification of an action in opposition to the law determines the admissibility of that action.

The provision in question is Article. 1, paragraph 52 of Law no. 92/2012, according to which “the appeal, together with the hearing decree, must be notified, through certified mail to the opponent at least thirty days before the date set for its hearing.”

In particular, the Supreme Court pointed out that the so-called Rite Fornero has been designed with specific timelines and a preferential lane treatment, with the declared purpose of being in the general interest that it be received rapidly in a situation of great social and economic impact. It is an individual’s basic rights that the more stringent the burden on the parties, the greater the respect the time allocated to them. Unjustified delaying tactics is evidence of the inadmissibility.

Consistent with the constitutional and supranational rules, the Supreme Court found that the principle of reasonable duration of the trial be elevated to a constitutional status with the drafting of Article. 111 of the Constitution. By Constitutional Law. 2/1999, the parameter to adopt an interpretation of the procedural rules allows an acceleration of time for the decision, avoiding duration being an unnecessary burden of judgment. This is consistent with the objective pursued also at the supranational level by ‘ art. 6 of the ECHR insurance about reaching a decision within a reasonable time.

With recent ruling no. 14390 of 14 July 2016, the Supreme Court ruled on a more specific question: in order to maintain an effective appeal to the court against the firing, it’s also possible to apply to submit an urgent appeal pursuant to art. 700 Code of Civil Procedure, or if it is necessary to bring the action under the new special procedure.

The Supreme Court concluded that the substantial difference between the two procedures (Rito Fornero and urgent appeal art. 700 Code of Civil Procedure) suggests that the legislature intended to refer only to the application of the special procedure art. 1, paragraphs 48 et seq. Of Law No. 92/2012.

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