Judicial Officer’s status
In Italy, the main two actors of the enforcement system are the enforcement judges and the judicial officers.
The status of judicial officers is partially regulated by the Presidential Decree 1229/1959, (Ordinamento, or Statute), and by national collective labor agreements.
These judicial officers are attached to the execution and protest office of the Court “Ufficio Notificazioni Esecuzioni e Protesti” (U.N.E.P.) and are auxiliaries of the judicial order. In fact, these execution agents have jurisdiction to carry out the Court’s auxiliary functions. Moreover, they can perform autonomous functions in the civil, administrative and extrajudicial fields.
Judicial officers, in Italy, are civil servants and cannot start their own private practice unlike judicial officers of certain EU countries such as France. Thus, Italian judicial officers use the facilities of the public administration and carry out their activities under the supervision of the Chief magistrate of the Court that they belong to.
Nonetheless, Italian judicial officers have a hybrid status. As a matter of fact, judicial officers:
- are not under an obligation to comply with specific working hours, in spite of the European directives and laws that may impose certain limits;
- are authorized to deduct and handle income tax payable by others on their behalf;
- use their own vehicle in the performance of their duties;
- administer their own funds for office expenses which consist of a percentage of the amounts collected from private parties;
- finance their own wage – the guaranteed minimum – out of the fees collected from private parties;
- have personal civil, criminal, administrative, disciplinary, fiscal and monetary liability associated with the performance of their own duties;
- may carry out activities on a fee basis with the authorization of their office manager.
What can a judicial officer do?
Judicial officers can intervene in civil, criminal and extra-judicial matters.
Judicial officers in Italy can perform the following activities:
- Transmission of documents
The transmission of documents (notificazione) is the formality by which a judicial officer brings a document, of a judicial or extrajudicial nature, to the attention of the recipient. Subsequently, the proceedings can be initiated, and the defendant can effectively exercise the right to a proper defense in accordance with the principle of fair trial.
Signification of documents refers to an institution that exists in many EU countries and consists of the delivery of a document along with the creation of a record certifying that the addressee has become aware of its content. The concept of signification does not, however, exist in Italy.
With the entry into force of Law 80/2005 and further implementing measures, the use of telecommunications – fax and electronic mail – and the digital signature, has also been introduced in Italy.
In practice, the law states that the judicial officer shall personally serve notice and deliver a copy to the addressee at his residence or, if this is not possible, wherever he is located within the limits of the officer’s territorial jurisdiction.
If service remains impossible, the judicial officers can deliver the document to the consignee. The consignee is a person who must be identified by the judicial officer amongst the addressee’s entourage:
- a family member;
- a person employed in his home;
- a person employed in his office or business;
- an employee responsible for the receipt of notices;
In the absence of such persons:
- the janitor;
- a neighbour;
Concerning the postal service of extrajudicial documents, no territorial limits are inflicted upon the judicial officer.
Enforcement is regulated by Book Three, Title II, Chapter I (article 483 et seq.) of the Code of Civil Procedure. This ‘segment’ of the Code of Civil Procedure lays down the principles applicable to all forms of attachment:
-attachment of personal property;
-attachment of real property.
To avoid causing greater prejudice than necessary, the legislator gives the enforcement judge authority to intervene in the enforcement process to limit the expropriation to the form chosen by the creditor or, if necessary, to the choice made by the judge himself.
The enforcement judge
The enforcement judge:
a) shall verify that compulsory expropriation is conducted in accordance with the principle of strict legality and ensure that the fundamental constitutional freedoms are respected;
b) cannot be substituted by another judge, except in cases in which there is an absolute impediment;
c) is designated by the President of the Court.
The judge’s decisions are issued in the form of an ex parte ruling. Requests brought before the enforcement judge will be submitted verbally when they during the hearing and in the form of a written submission outside the hearing.
In case of an attachment procedure on movable or immovable assets, the case must be introducing before the judge with jurisdiction over the place where the assets are located.
In case of compulsory expropriation of the debtor’s claims, the case must be introduced before the judge having jurisdiction over the place where the third-party debtor resides.
In case of enforcement of the obligations of performance and non-performance, the case must be introduced before the judge of the place where the obligation must be performed.