Administrative Justice System in Italy

In this analysis, Law 2080 of 2021 will be approached from a perspective of contrast with the principle of due process, especially in the field of administrative proceedings. This reform was conceived as a result of the need to implement in the administrative contentious jurisdiction technical mechanisms and a redistribution of workloads and competencies between the Council of State, the Administrative Courts and the Administrative Courts at the national level. In addition to these modifications, the reform also incorporates significant changes, such as the application of the General Procedural Code in matters of the jurisdiction and in sanctioning matters, as well as adjustments in certain procedures, such as the provisional suspension in tax matters. In this context of regulatory change, it is essential to highlight the consistency of the administrative sanctioning process with the principle of due process, a fundamental guarantee in any administrative action and, even more so, when it comes to sanctioning procedures. An important aspect of this principle is the right to a second hearing, recognized by international organizations as a right that the State must ensure in all its actions. This analysis was based on specific cases of the Council of State that address the double instance and its impact on the administrative sanctioning process

This article critically analyzes the ethical and legal implications of adopting predictive analytics by the French administrative justice system. It raises a key question: Is it wise to integrate artificial intelligence into the administrative justice system, considering its potential benefits, despite the associated risks, ethical dilemmas, and legal challenges? The research employs a method based on an extensive literature review, a qualitative analysis of the adoption by the French administrative justice of predictive analytics tools, and a critical evaluation of the benefits and issues these tools bring. The study finds that AI can make the administrative justice system more efficient, reduce backlogs, and enhance the consistency and predictability of judicial decisions. However, the study also identifies important risks and serious ethical and legal issues associated with integrating AI tools into the justice system. Especially, AI utilization can lead to the dehumanization of justice and poses real risks to the independence and impartiality of justice. While AI can offer significant benefits to all the stakeholders of the administrative justice system, its integration must be approached with caution. A progressive and responsible approach to AI adoption is necessary to avoid compromising judicial integrity and upholding fundamental justice values.

This article prospects the dynamic phenomenon of the in house providing and analyses the extension that the related principle, forged by the European Courts, has had in the Italian system over the last decade, interpreting the main relevant trends of Italian Institutions, with the purpose of identifying the current rules governing this subject. Providing a general overview of the fragmented and, often, conflicting legislative relevant reforms, this work shows how the in house criteria, general principle for the carrying out of public services and instrumental services pursuant to European Law, has firstly become a secondary and residual criteria, due to legislative interventions pursuing the declared goal of privatization and reduction of public debt, and subsequently has returned back to its initial position as an effect of the referendum of 2011. In highlighting such fluid legislative scenario, a particular focus is given to the key role played by AGCM and by Italian Courts in such dynamic subject, whose decisions have not only helped to clear out the actual scope of the in house principle - despite of highly segmented laws - but also restored the compliance of Italian rules with the principles of European Law, protecting the will expressed by citizens with the referendum.

The article aims at defining the scope of disgorgement in Italian law, which draws on common law experience, and asks whether the Italian legal system can provide similar recourses. English and US law have conceived “disgorgement damages” as a distinctive concept. I verify whether a rule of disgorgement of profits is principled in the Italian legal system as a generally available private law remedy or is just applicable in certain specific cases. I propose 3 hypothetical cases to measure the attitude of different legal systems. The theoretical foundations of disgorgement as a private remedy are located in different branches of private law (compensation, restitution, property law). English and U.S. law place disgorgement in the more general framework of the law of unjust enrichment and restitution. However, disgorgement can be attracted to other branches of law, as I demonstrate with reference to the Italian legal system. By highlighting the functions that disgorgement may perform in each case proposed, I conclude whether disgorgement is applicable by Italian judges, in addition to the express provisions laid down by legislation.

The author illustrates the normative framework of protection against religious discrimination in Italian legal system, scattered over several different pieces of legislation. The analysis is devoted to the substantive and procedural rules on the principle of equal treatment irrespective of religion. The analysis shows that the law guarantees every aspect of freedom of personal convictions in religious matter and protects not only people who belong to traditional organized religions, but all people who have held religious beliefs or practices. Italian law prohibits discrimination in regard to religion, not just in employment, but also in other areas. Consequently, the scope is wider than the EU Non-discrimination Directive 2000/78/EC, which only covers discrimination in employment, occupation and working conditions. The rules for the procedure before the court, designed to ensure the protection for persons who have been subject to discrimination are then examined. The author focuses in particular on the provisions regarding the legal standing, the burden of proof, and the remedies, which are crucially important for the effective implementation of the principle of equality.

“Indemnity clauses in sale and purchase agreement under Italian law” This work is a comparative analysis of the problems arising from indemnity clauses in sale and purchase agreements under Italian Law. In a contract for the sale of shares of a s.p.a or a s.r.l., the seller usually provides representations and warranties by which he guarantees to the buyer the presence of certain characteristics of the target company’s assets. The collateral asset, financial and income provided for this purpose is usually integrated and completed by indemnity clauses, through which the parties regulate the activation and the limits of the guarantees, as well as the consequences and remedies arising from their breach of these representations and warranties. In particular, the content of indemnity clauses may consist of an obligation to: a) indemnify and hold the buyer harmless from any current or potential contingent liability (usually existing at the last balance sheet date); b ) indemnify the buyer for any undeclared debt or loss of assets; c) compensate for any loss or damage suffered by the target that would not have occurred if the financial situation of the company were correctly represented and described in the business warranties contained in the sale and purchase agreement. The thesis contains three sections: (i) a description of the main theoretical problems arising from the application of indemnity clauses, typical of the common law systems, to the Italian legal system; (ii) an exam of the different ways in which an indemnity clause could be drafted by the parties in the most common cases, as well as the interpretative issues involved; (iii) a study of the strong difficulty to frame the indemnity clause under the categories of the Italian legal system (such as, for example, damages, price adjustment, penalty clauses) with an attempt to understand how to recognize the indemnity clause its own juridical autonomy. Granting such autonomy and, as the author tried to do, identifying a set of rules which could be used to regulate the indemnity clause appears to be necessary. This is not only in the light of the difficult application of Italian law to the issues created by the breach of business warranties in sale and purchase agreements, but also in the light of the cross-border and transnational scenario in which the indemnity clause is usually used and operates.

This article critically reviews recent developments in the administrative justice system; in particular, it considers three key themes: improving initial decisions; administrative review; and the future of tribunals. In each of these areas, some aspects of administrative justice work well, but austerity has presented acute challenges in ensuring the fair and just treatment of people through restrictions upon legal aid; the withdrawal of some appeal rights; and the expansion of administrative review. Consequently, the system is moving away from a ‘legal’ model of administrative justice to the ‘bureaucratic rationality’ model, which focuses upon accurate and efficient implementation. However, the reality does not correspond with the goals of the model. Rather than accurate and efficient implementation of policy, what we find is poor decision-making made by junior officials with insufficient quality controls. Digitising tribunals may have potential benefits in terms of increased accessibility. Nonetheless, the prospects for administrative justice are weak.

This chapter evaluates the rule of law, the principle of legality and due process. The creation of the International Criminal Tribunal for the former Yugoslavia (ICTY) in the early 1990s marked the dawn of a new era in international law and opened the way for the founding of a host of international and hybrid criminal tribunals, including the world’s first permanent International Criminal Court (ICC). Over nearly three decades, these international criminal tribunals have not only demonstrated that just and fair trials of some of the worst crimes imaginable are possible, they have also striven to serve as an embodiment of rule of law ideals—as highly visible examples of rule of law principles put into practice. The chapter then looks at the legality principle and due process. The legality principle, as enshrined in the principal conventions on human rights, is a basic component of the rule of law and serves as a fundamental check on the ability of courts to push the progressive development of the law, no matter how much the Judges of that court might believe that certain conduct deserves punishment.

This article aims to delineate the boundaries of the evidence initiative of the Court of the First Instance, which bears the responsibility to fulfil the goals of criminal proceedings, as outlined in Article 2 § 1 item 1 and § 2 of the Code of Criminal Procedure, from the perspective of evidence reliability, an essential component of the fair criminal trial concept. The court’s evidentiary actions were thus examined through the lens of requirements stemming from Article 6(1) and (3) of the ECHR, especially the principles of independence, impartiality, adversarial process, immediacy, and access to criminal proceeding materials. The article adopts a dogmatic approach, building on an analysis of current national legal standards and the Rome Convention’s provisions, viewed through doctrine and jurisprudence of national courts and the Court in Strasbourg. This makes the publication relevant for both legal scholars and practitioners involved in criminal proceedings. The analysis suggests that the court’s initiative to introduce evidence, its methods of evidence gathering, and access to collected materials during proceedings must not curtail the rights of the parties, especially the accused, to conduct their evidentiary activities. Depriving the court of the primacy of independence and impartiality, restricting the parties’ capacity to engage in dispute in favour of an inquisitorial jurisdictional body violates the right to fair evidentiary proceedings. The court, in safeguarding the principle of material truth, must remember its role as a justice administrator and balance all arguments accordingly. Seeking evidence solely to establish the accused’s guilt contradicts the procedural function of adjudication and compromises the court’s neutrality, making it an extension of the prosecution. Hence, a thorough elucidation of case circumstances by the court should not disempower the parties, particularly regarding their initiative to present evidence.

There was a conflict between the judgment of the lower court and the Supreme Court regarding the adequacy of the right of defense granted to public officials in disciplinary proceedings. In other words, the Supreme Court made a judgment 2022du33323 on July 14, 2022, which is against the original trial in the lower court (2020nu52759, sentenced by Seoul High Court, on January 13). the Supreme Court judged that there is a reason not to disclose the victim's personal information and that The disciplinary agency fully guaranteed the right to defend. Also, the Supreme Court judged that the plaintiff knew who the anonymous victims were and there was no problem with the plaintiff's exercise of defense rights. However, the Supreme Court’s judgement, 2022du33323 has the following problems. First of all, it was used as a basis for judging that there was no problem in guaranteeing the plaintiff's right to defense during the disciplinary process due to the fact that there was no objection that the victim was not specified during the disciplinary process. Secondly, It was wrong to dismiss the plaintiff’s claim, citing the situation in which the plaintiff was already aware of the victim while allowing the anonymous treatment of the witness due to the victim's secondary damage. Lastly, It is unfair to cause the plaintiff to fundamentally lose the opportunity to deny his or her disciplinary charges. For this reason, it is thought that a disciplinary agency, the defendant violated the plaintiff's right to defend, and that the Supreme Court's judgment ignored the principle of due process in this case. Paradoxically, 2022du33323 demonstrated the need for institutional supplementation in the following areas of the disciplinary process. Among them, this paper presents three supplementary points. ① First of all, the administrative agency sufficiently informs the person of the right to participate in an attorney until the time of disciplinary action, so that the person subject to disciplinary action is given an opportunity to utilize it. ② Next, The Appeal Review Committee shall facilitate the submission of data by both parties apart from keeping the victim confidential. ③ Lastly, in disciplinary action, the victim's personal information, reasons for disciplinary action, and the contents of disciplinary action must be disclosed to the parties, and the Defendant Administrative Agency must faithfully prove the contents of the disciplinary action. In the end, such institutional improvements are necessary to ensure the principle of due process. by improvements, it is expected that the person subject to disciplinary action will exercise the right to defend more effectively in the disciplinary process and that an appropriate level of relief will be achieved.

The use of artificial intelligence in administrative justice has been widely discussed in Iran. The challenges and problems of designing a scheduling system in provincial offices and enforcement branches and organizing the petition writing unit of the Administrative Court of Justice are among the issues that increase the need for artificial intelligence, and expert solutions must be provided. In addition to providing new opportunities to improve efficiency and accuracy, artificial intelligence brings numerous legal and ethical challenges. The present study aims to investigate and analyze the legal and ethical challenges of using artificial intelligence in the administrative justice system. The most important challenges were carefully examined in light of previous studies, and solutions were proposed as far as possible. Addressing these challenges requires comprehensive and multifaceted approaches, including developing legal and ethical frameworks, increasing system transparency, and maintaining human oversight. The present study emphasizes the use of artificial intelligence in administrative justice and suggests that artificial intelligence be used as a predictive algorithm in the Administrative Justice Court.

The increasing use of the internet by minors has made public the risk they run of becoming victims of serious cyber-crime. This awareness has led to the adoption of binding and soft-law instruments in the field of International and EU law aimed at combating new forms of crime and protecting minors in the cyberspace. This paper, after having critically analysed the main acts adopted at International and EU level, focuses on their implementation in the Italian legal system. In doing so, cybercrimes committed by adults against children and those committed among peers will be separately considered. The study shows that, despite the legislator’s attempt to carry out the obligations deriving from International and EU Law, there are still several critical profiles in the national law.

This article pays specific attention to the cultural plurality of the contemporary societies, contextualising it as subject of study and debate in the penal field. Since the contents of criminal law are deeply permeated by the culture of members of the majority culture and reference society, between the dominant system and the ethnic minority can rise particularly intense cultural conflicts - criminal lawsuits at the expense of members belonging to these groups happen always more frequently, and in this field the debate denotes whether the cultural background of the perpetrator influenced the origin and the executive modality of his behaviour. The paper seeks to analyse the specific juridical categories of the Italian legal system - the cultural factor weaves together tipicality, illegality, guiltiness and punishability – in order to verify whether in our legal system the cultural defence of the perpetrator can basically be accepted. Another fundamental point concerns with all the safeguard actions of the victims who endure serious violations of their rights, including physical and psychological integrity, through behaviour aimed at recognizing a reinforced protection as in situations of vulnerability of particularly intensity. Therefore, instruments aimed at protecting the victims are taken into consideration adding a critical and constructive approach in the perspective of finding solutions for an effective protection.

In the Italian legal system, the taxation of family income has undergone profound changes over the years, in line with the economic-social balances that characterized the original structure and subsequent evolution of the family, a term for which there is no univocal definition. The family today can be founded on marriage, civil union or de facto cohabitation; the first two models, by attributing the status familiae to the partners, identify the family aggregation as a place of production of wealth as well as affection and, therefore, an expression of ability to pay, with consequent relevance also on a tax level; the third model, rising to a mere fact resulting in significant effects on a legal level, instead has a completely marginal fiscal discipline. This essay, starting from an analysis of the choices made within the OECD and from the diachrony of the sources of Italian law, examines critical issues in the current legislation from a proactive perspective, from which, despite the warnings expressed on more than one occasion by the Judge of Laws on the basis of Italian constitutional principles, the lack of an organic tax regime designed for families becomes evident, the system being based on an atomistic vision of interpersonal relationships.

In 2016, the French Parliament introduced a new chapter on mediation in the Code of Administrative Justice. To succeed, this reform needs to reverse repeated failures in this field. In view of the significant challenge of embedding administrative mediation in the French administrative justice system, the reform and its implementation were informed by empirical findings arising from a mediation pilot set up by the administrative court of Grenoble in Spring 2013. An empirical study of the pilot and of the experience of rolling out administrative mediation in France forms the core of this article and the context in which to revisit foundational questions about mediation and administrative justice. I argue that mediation is not illsuited to administrative law disputes, but that to be integrated in a system of administrative justice, mediation requires the negotiation of a dedicated environment triggering in turn the emergence of a pluralist administrative justice system.