(Apr. 9, 2015) Italy has approved new legislation on the civil liability of judges. (Law No. 18 of February 27, 2015, on Civil Liability of Magistrates, GAZETTA UFFICIALE (G. U.) No. 52, NORMATTIVA, amending Law No. 117 of April 13, 1988, Indemnification of Damages Caused in the Exercise of Judicial Functions and Civil Liability of Judges, G. U. No. 88, NORMATTIVA (both in Italian).) Law No. 18 aims to enforce the provisions governing the civil liability of the state and of magistrates, particularly in view of Italy’s status as a Member State of the European Union. (Law No. 18, art. 1(1).)
The law specifies that the regular exercise of judicial functions by a judge, including the interpretation of legal norms and valuation of facts and evidence, may not trigger the judge’s civil liability. (Id. art. 2(b).)
It provides, however, that a judge can commit gross negligence giving rise to civil liability when there is a manifest violation or Italian law or EU law in the form of misrepresentation of fact or evidence, when it is established that a fact was misrepresented, or when a preliminary injunction in persona or in rem is issued beyond the scope of cases permitted by law or without legal grounds. (Id. art. 2(c).)
The determination of cases in which there is a manifest violation of EU law depends on several factors:
- the degree of clarity and precision of the violated provisions;
- the gravity of the violation;
- a failure to comply with the obligation of preliminary renvoi (the obligation of a court to submit certain matters to the EU Court of Justice); and
- the existence of a contradiction of the act or the measure with an express interpretation of EU law given by the Court of Justice of the European Union. (Law No. 18, art. 2(c).)
When a determination has been made that a judge has committed an act of denial of justice or has fraudulently or with inexcusable negligence committed a manifest violation of EU law or a misrepresentation of fact or evidence, compensation will be granted to the victim. Within two years of the compensation being granted, the President of the Council of Ministers must take indemnity action against the judge. (Id. art. 4(1).)
Except in cases of fraud, the new legislation limits the amount of the indemnity to be recovered from judges to half of their annual salary at the time of the indemnity action, even when the actions for damage have been exercised by two or more persons. (Id. art. 5(1).) In any case, the amount of the indemnity may not be higher than one-third of a judge’s annual net salary. (Id.)
Before January 31 of each year, the Court of Accounts will request information from the President of the Council of Ministers and the Minister of Justice concerning convictions for indemnity actions, issued within the preceding year, that result from crimes committed by judges in the exercise of their functions. (Id. art. 7(1).)