The Constitutional Court reiterates the constitutional illegitimacy of the obligation to file an acceleration request for fair compensation in the event of excessive duration of the civil trial

With ruling n. 142/2023, the Constitutional Court declared the constitutional illegitimacy of the art. 2, paragraph 1, of law 24 March 2001, n. 89 (Provision for fair compensation in case of violation of the reasonable time of the trial and modification of article 375 of the code of civil procedure), in the part in which it provides for the inadmissibility of the request for fair compensation in the case of failure to exercise the preventive remedy of referred to in the art. 1-ter, paragraph 6, of the same law.

In line with the jurisprudence of the ECtHR, constitutional jurisprudence is now constant in stating that preventive remedies are not only admissible, possibly in combination with compensatory ones, but even preferable, as they are aimed at preventing judicial proceedings from prolonging excessively over time (sentences no. 107 of 2023, no. 175 of 2021 and no. 88 of 2018).

With particular reference to the acceleration request introduced as a preventive remedy in the context of criminal proceedings by art. 1-ter, paragraph 2, of law no. 89 of 2001, the Court had already stated that its presentation «does not offer any guarantee of reducing procedural time, does not introduce an alternative procedural model and therefore does not constitute a tool available to the interested party to prevent the further prolongation of the trial, nor does it imply a priority in the treatment of the judgment" (judgment no. 175 of 2021).

The same considerations were replicated in relation to the acceleration request to be filed in the proceedings before the Court of Cassazione in civil proceedings.

In light of the current procedural regulations, in fact, its presentation does not bind the judge "to what is required of him" (sentence no. 88 of 2018), i.e. to route the process in which the acceleration request is filed within the deadlines on a preferential track prescribed.

In other words, nothing excludes that the trial, "even in the face of such a request, [could] still continue and extend beyond its reasonable duration" (judgment no. 169 of 2019), also in violation of the art. 111, second paragraph, Constitution.

According to the Judge of Laws, the procedural regulations of the proceedings before the Court of Cassazione, in fact, do not link the filing of the acceleration request in question to any significant effect on the timing of the proceedings, since the legislator has not foreseen, as a consequence of the presentation of it, the activation, even if mediated by the judge's evaluation, of a different - and, in theory, quicker - procedural module to reach the decision of the case.

The Court also underlined that the legislator of the reform - although he intervened, in other respects, on the text of the art. 1-ter of law no. 89 of 2001 - did not intend to establish any direct connection between the application governed by the contested provisions and an accelerated procedure.

The failure to present this request, therefore, «may possibly take on importance (as an indication of the subsequent lack or seriousness of the applicant's interest in the trial) for the purposes of determining the quantum of compensation pursuant to law no. 89 of 2001" (judgment no. 169 of 2019).

What, however, does not comply with the constitutional parameters mentioned is that the failure to file the request could affect the very admissibility of the request for fair compensation (in a similar sense, judgment no. 175 of 2021).