The Chairperson of the advocacy of political representation, Oua, Maurizio de Tilla, released a document (below) that lists the many reasons why it is necessary and proper, delays to the entry into force of mandatory mediaconciliazione pending the necessary changes. In recent days, that effect was approved a bipartisan amendment to Milleproroghe but was in turn further undermined by a blitz of the Ministry of Justice through further amendment to the extension restricted to only two subjects. The debate is now expected in the Senate and several senators have promised to battle and the submission of further amendments that collect protests Advocacy.
de Tilla, however, he insists, and powerful of the dozens of resolutions submitted to the Minister Alfano at this time by bar associations throughout Italy and by bar associations confirms that the system of compulsory mediaconciliazione as conceived is unconstitutional and restricts the right of citizens to a fair and efficient civil justice.
"The mandatory mediaconciliazione - Explanation violates the Constitution, especially because it is connected to the failure to provide needed assistance of the lawyer. First it should be clear that the legislature delegating - according to the prescription given by the European Directive - had ruled that a mechanism should be introduced conciliation, but he had not planned the obligation, nor had he allowed that it could be considered state of admissibility of the application court.
With art. 5 of Legislative Decree no. 28/10 the Government, however, has introduced both prescription and admissibility, the vice of excessive delegation, so arrogating a power that had not been given. It is very serious. "
"It should be noted - still the President of the OAU - the art. 60 of law 69/09 (act) in the third paragraph Lett. a) provides that in exercising the powers the government carries out, among others, the following principles and guidelines "... a) provide that the mediation, aimed at reconciliation, has as its object disputes on rights available, without blocking access to justice. " However, in contrast with the requirement of the enabling act, art. 5 of Legislative Decree no. 28/10 configures the mediation process as a condition of admissibility of the application court, in effect being denied immediate access to justice.
foreclosure, which is referred to the enabling act, not to be understood (and how could it be!) Which inhibit, but rather as a limitation on judicial protection. The Leg. 28/10, conceiving the process of mediation as a prerequisite to the proceedings, prevents ready access to justice and undermines the effectiveness of the same judicial protection. "
sottto But another point of view mediaconciliazione worry citizens: "The unconstitutionality of the law - he adds - is even more evident when one considers that that conciliation is not only mandatory but also expensive and - in light of later approved charges - can be significantly.
The Government, therefore, not merely to impose a condition of admissibility that had not been allowed, but also ruled that the costs were to sell (at least by way of anticipation) to the citizen, who see it so badly thwarted that access to justice that the Constitution guarantees to all. How many citizens, the sight of a dispute of modest economic entity, will be forced to resign, to avoid having to anticipate, in order: the compensation due to the conciliator; the fee to the aid of that technical, if necessary, the unified contribution. "
"Finally - he continues - there is a further reason grounds of unconstitutionality. In making use of the power delegated to the Government, art. 8 of Legislative Decree 28/20 10, introduced by the prediction that non-participation without good reason the mediation proceedings, the court may infer test subjects in subsequent proceedings. In essence, a choice that the party can do without the help of a lawyer - or not participate in the conciliation process - may affect the outcome in a crucial the next process. The result is a clear violation of the right of defense under Article. 24 of the Constitution.
not alone! Technical assistance, whatever the value of the dispute is not compulsory, but neither is it prohibited: it is optional.
Which means that, whoever is able to pay for it, may be represented by fine lawyers, consultants include experts, professionals cry, and who is poor no: must fend for himself, because it is not compulsory to a lawyer, you can not resort to legal aid. An elderly retired octogenarian, and bears the primary school diploma, you will not be able to anticipate (other than those for the broker) fee for a lawyer, will face a battalion of seasoned professionals, but will discuss a proposal from one of conciliation in a dispute involving (we mention by way of example) the tango-bond, or other sophisticated financial product. "
"These are just some of the issues affecting the future civil justice in our country with the introduction of mandatory mediaconciliazione - concludes de Tilla - are listed in the document drawn up by the OAU in a more analytical way, but they are illustrative of a mechanism from combat to protect citizens in the face of attacks and interests of the "big powers" and the smooth functioning of the judicial apparatus Italian. "
Rome, February 14, 2011.
OF THE MANDATORY MEDIACONCILIAZIONE violates the Constitution
The mandatory mediaconciliazione violates the Constitution, especially because it is connected to the failure to provide needed assistance of the lawyer.
first place it is clear that the legislature delegating - according to the prescription given by the European Directive - had ruled that a mechanism should be introduced to conciliation, but he had not planned the obligation, nor was it possible that it could be considered to be contingent legal admissibility of the application.
With art. 5 of Legislative Decree no. 28/10 the Government, however, has introduced both prescription and admissibility, arrogating a power that had not been given.
is configured as an obvious excess of delegation, as it is clear that a condition of admissibility of the action, pursuant to Art. 24 of the Constitution, can be introduced only by the legislature, and therefore the Government could do so only if he had been authorized by law to delegate. It
In this regard, noted that it is unconstitutional also art. 16 of Legislative Decree no. 28/10 that, in providing that a public or private entities authorized to provide mediation should be selected the same way as the parameters of the "seriousness and efficiency," leaves open an interpretation, too, is not fully compliant with the provisions of the enabling act and thus is contrary to the provisions of art. 77, and 24 of the Constitution.
should be noted that Article. 60 of Law 69/09 (act) in the third paragraph Lett. a) provides that in exercising the powers the government carries out, among others, the following principles and guidelines "... a) provide that the mediation, aimed at reconciliation, has as its object disputes on rights available, without blocking access to justice. "
However, in open contrary to the requirement of the enabling act, art. 5 of Legislative Decree no. 28/10 configures the mediation process as a condition of admissibility of the action, effectively precluding the immediate access to justice.
foreclosure, which is referred to the enabling act, not to be understood (and how could it be!) Which inhibit, but rather as a limitation on judicial protection. The Legislative
. 28/10, conceiving the process of mediation as a prerequisite to the proceedings, prevents ready access to justice and undermines the effectiveness of the same judicial protection.
Think of the dangers that can not, for itself, allow to delay access to justice, postponing the experiment of the mediation process.
is that, in fact, contrary to the requirements of the enabling act, the Legislative Decree no. 28/10 introduces a system of foreclosure direct access to justice.
should also be noted that Article. Of 60 l. 69/09 to the third paragraph b) provides that in exercising the powers the government carries out, among others, the following principles and criteria: "... b) provide that the mediation is conducted by professional bodies and independent permanently for the delivery of the conciliation service. "
However, the Legislative Decree no. 28/10, art. 16 and the entire third chapter entitled "by mediation," clearly disregards the prediction of the delegation.
There is, in fact, trace, or parameter of any policy aimed at selecting bodies responsible for mediation on the basis of professionalism and independence.
Article. 16 In fact, it merely provides that any public or private giving assurance of reliability and efficiency is the authority to establish a body for mediation.
With this disregard for the prediction of the delegation when circumscribes the progress of mediation exclusively with professional organizations and independent and, therefore, implementing, beyond the forecast enabling act itself, a kind of liberalization in the establishment and certification bodies for mediation. Both forecasts
Leg. 28/10, both the art. As Article 5. 16, posed, therefore, in direct conflict with the provisions of the enabling act.
But when, like the uniqueness of the approach to constitutional jurisprudence, "the power to fill by the legislator, however broad it may be, can never rise to a principle or guiding principle, as the polar opposite of a binding law, which is By definition, the delegated legislation "(Constitutional Court October 12, 2007 No 340). In the case of
mediaconciliazione, using the parameters of the conformity of the norm under delegated delegating uniquely identified by the same Constitutional Court (Constitutional Court 44/2008, 71/08, 98/08, 230/10) shows, in fact, the inconsistency of the requirements of Articles . 5 and 16 of Legislative Decree no. 28/10 with the provision of Article. 60 l. 69/09. According to the Constitutional Court
the content of proxy must be identified, taking account of the overall regulatory environment in which you insert the enabling law and its principles and criteria and the aims which underpin it, which not only constitute the basis and limits of the rules delegated, but also tools for the interpretation of their reach.
However the provisions of art. Of 60 l. 69/09, in adherence to the impulses of Community and in particular the provisions of Directive 2008/52/EC, was aimed at ensuring the rapid introduction of alternative systems and the protection of legal positions integral "valid rights" and the " quality of mediation "through the identification of professional bodies and independent.
This is far from being realized when one considers the scope and content of weather, what is art. 5 of Legislative Decree no. 28/10 aims to hamper the process of protection of views of individual, through the introduction a mandatory procedure and not an alternative option but is mandatory and a prerequisite to access to justice, and the art. 16 of the Ordinance to exclude from the criteria for selection of organizations to mediate any parameter of "professionalism" and "independence", which indeed parameters laid down by law attorney.
The effect of both provisions is a violation of the delegation and the distortion of the function that the legislature had given delegating to the mediation process and the professional bodies and independent MPs to mediation.
Everything in clear violation of constitutional principles that underpin the discipline of law delegated, and even more, from a substantive violation of the principle of the right of defense under Article. 24 of the Constitution.
Consider that, as the Constitutional Court since the 50s of last century, the provision under Art. 24 of the Constitution guarantees the right to assert himself over his case in court, shall also be entitled to a defense "technology."
notes in this respect the Court as "the right of the defense must be understood as an effective power of the technical and professional assistance in the protection of their legal positions." To date, however, due to the misuse of delegated legislative power, the citizens, in the experiment of the mediation process, not receiving the appropriate assistance and protection guaranteed by Article. 24 of the Constitution.
The selection criteria for the bodies of mediation, in fact. economic and financial factors that are not indicative of the professionalism of the mediator and even prevent, by their balance sheet impact, access for the profession to the legal register of bodies for mediation.
But the unconstitutionality of the legislation is even more evident when we consider that this attempt at reconciliation is not only mandatory but also expensive and - in light of later approved charges - can be significantly.
The Government, therefore, not merely to impose a condition of admissibility that had not been allowed, but also ruled that the costs were to sell (at least by way of anticipation) to the citizen, who will so severely hampered that access Justice that the Constitution guarantees to all. Those of us in the sight of a dispute of modest economic entity will not be forced to resign, to avoid having to anticipate, in order: the compensation due to the conciliator, the technical fee to the aid of the latter, if necessary; the contribution unified.
There is also another reason grounds of unconstitutionality. The legislature
delegating nothing said about the need for a technical defense during the mediation process, but had been careful to ensure that its development could have an impact whatsoever on the merits of the decision process: the law of delegation, the rejection of the proposal made by the broker, and then considered fair by the judge, had an influence on government spending, but never on the outcome of the dispute.
In making use of the power delegated to it, however, the Government, art. 8 of Legislative Decree 28/20 10, introduced by the prediction that non-participation without good reason the mediation proceedings, the court may infer test subjects in subsequent proceedings under Article. 116 seconds paragraph of the Code of Civil Procedure.
In essence, a choice that the party can do without the help of a lawyer - or not participate in the mediation procedure - the determining factor may affect the outcome of the next process, it is known, in fact, that the conduct of the case or non-procedural parts may, pursuant to art. 116 of the CPC, not only factor in assessing the results obtained, but also unique and sufficient evidence to support the decision of the trial court (as, among many others, Cass. June 20, 2007 No 14748).
It is clear violation of the right of defense under Article. 24 of the Constitution, law which, as is known, is the power of effective technical and professional assistance in any stage of the process and therefore also in the prodromal phases whose progress can be deduced test subjects, and the excess of delegated powers pursuant to Art. 76 of the Constitution since the legislator introduced a possibility to find evidence in the absence of technical defense that had allowed the Delegator ever.
not alone!
It should be noted that the lack of the obligatory presence of the defenders also found in a different - and perhaps even more meaningful - profile.
technique that server, regardless of the amount in dispute, is not mandatory, but neither is it prohibited: it is optional.
Which means that, whoever is able to pay for it, may be represented by fine lawyers, consultants include experts, professionals cry, and who is poor no: must fend for himself, because it is not compulsory to a lawyer, you can not resort to legal aid.
An elderly retired octogenarian, and bears the primary school diploma, you will not be able to anticipate (other than those for the broker) fee for a lawyer, will face a battalion of seasoned professionals, but will discuss on its own a proposed settlement in a dispute concerning (cite by way of example) the tango-bond, or other sophisticated financial product. A strong contrast
Leg. 28/10 with the enabling act for what you have refers to inter-reflections of the denial to acceptance of the proposal of the mediator, on-l'iter of subsequent proceedings and in particular on budgetary expenditure of litigation. The fact that the successful party to the proceedings has not accepted a proposal that conciliation has failed to match the content of the judicial decision, should be to bear all costs of litigation and its counterpart, in addition to payment of an important contribution to equal unified and brokerage, is indefatigable-ti a clear deterrent "forced" by resorting to judicial protection and accept the outcome of mediation. This is because before the proposal of the mediator, the party almost certainly will not wish to risk, only to accept the solution ob twisted neck segnalatagli court, even though she is not fully convinced and even though it may feel it unfair, rather than resorting to legal expenses could offer a clear-to even better.
This is the point where you play to the doubts of the constitutionality of delegation so excessive in relation to the already reported Lett. a) art. LN 60 of 69 in 2009, which posed as a specific criterion of Directors that for which the implementation of mediation in any case does not preclude the applicant-so is the legal protection. Foreclosure may occur if instead of conciliatory proposal, which brazenly psychologically deter the party from using the trial to which he is entitled and which would guarantee a better result.
Note that the party may also be confronted with proposals that due to a possible lack of preparation technique of the Ombudsman may be inaccurate or unbalanced, even unconsciously, to any one of the subjects of dispute. Yet, despite the likely unfounded these proposals, the front part of the spectrum of serious consequences for costs, may preclude the use of the that is the only way natural and protective nature for the settlement of disputes, given precisely the protection judicial role.
Maurizio de Tilla (OAU Chairman)
source: http://www.altalex.com/index.php?idnot=13233
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