Summary + judicial document + Relazione di Notifica; or judicial document + convenience translation + Relazione di Notifica
Stella, a friend of mine, who practices as a trainee solicitor in a law firm in my town, recently asked me to help her serve an Italian court order on a defendant domiciled in the US.
The court order she had to serve was a sc. decreto ingiuntivo, an order issued by a judge following a summary ex parte proceeding, directing a party to pay or deliver, sought by who claims a specific sum of money, or a specific amount of fungible goods, or the right of being delivered with a specific movable, and granted to who provides a written evidence of his claim (see Articles 633 and ff. Italian Civil Procedure Code). Where the court order is issued, the claimant must serve it on the defendant, who may challenge it within 40 days or else it becomes enforceable.de
Given the meagre value of the claim, Stella was looking for the cheapest way to serve the judicial document, which I suggested was serving it by mail under Subsection (a) of Article 10 1965 Hague Service Convention (“Provided the State of destination does not object, the present Convention shall not interfere with a) the freedom to send judicial documents, by postal channels, directly to persons abroad (…)”) (1).
Both Italy and the US are parties to the Convention, which respectively came into force on the 24th of January 1982 and on the 10th of February 1969 (2).
Though the US has made no objection as to Article 10, I warned Stella that, in the light of the case law of the Italian Court of Cassation, serving judicial documents by that means to the United States may raise an issue.
Article 8 Italian Law No 890 of the 20th of November 1982, provides that where a judicial document is sent by registered letter with return receipt and the recipient does not pick it up, he may do so within 10 days, by collecting the letter at the local post office, or else the judicial document will be considered as having been actually served on him.
By its judgment No 7307 of the 26th of March 2010, the Second Division of the Italian Court of Cassation, came to the conclusion that the mechanisms provided for in Article 8 does not apply where the registered letter with return receipt containing the judicial document is sent abroad, since foreign postal offices do not comply with the requirements set in that Article, which are purported to grant the recipient. In particular, the Supreme Court, held that such a mechanism could not apply in the case of Florida, where uncollected registered letters are held at the local post office only five days.
I thus warned Stella that if the recipient did not pick up the registered letter, nor collect it at the local post office, then the judicial document therein enclosed could have not been considered as having been duly served.
This notwithstanding, Stella decided to try and serve the judicial document by registered mail.
Hence, we filled in the “Summary of the document to be served” (3), which, though recommended by the Fourteenth Session of the Hague Conference (4), is not compulsory when serving judicial documents under Article 10. Under the summary we then attached the application for the court order and the court order itself, and under that we further attached a convenience translation I made.
The reason why I suggested to attach a convenience translation is the following.
In its judgment No 3919 of the 17th of February 2011, the First Division of the Italian Court of Cassation, specified that, unlike Article 5 thereof, Article 1965 Hague Service Convention does not require that the judicial document be translated in the language of the place where it ought to be served. In the case settled by the Supreme Court, actually the claims made by the addresee of the judicial document were deemed wholly ungrounded, insofar as the document had actually been translated.
Hence, the reason why I suggested to attach a convenience translation under the court order was to avoid the defendant from challenging that a translation is needed under Article 10.
Therefore, under the summary, the application for the court order, the court order itself and the convenience translation, we attached the sc. “Relazione di Notifica”, a document that is filled in by the Italian judicial officer and usually worded as follows: “Today, the [date], as requested by [name of the claimant], represented, defended and domiciled as specified above, the undersigned [name], judicial officer at the First Instance Court of [name of the competent court], has served the above application for the court order and the identical court order on [name of the defendant], domiciled in [address where the defendant is domiciled] and therein by mail”.
We stapled all documents together, in the order detailed above, and Stella went to the judicial officers at the First Instance Court of Asti, who then sent the judicial document by registered mail. What Stella told me is that the judicial officers in Asti told her to remove the summary, since the judicial document was provided with a convience translation.
Some weeks later, the judicial document was collected by the recipient and thus duly served.
(1) The 1965 Hague Service Convention is available at: https://www.hcch.net/en/instruments/conventions/full-text/?cid=17
(2) The status table of the 1965 Hague Service Convention is available at: https://www.hcch.net/en/instruments/conventions/status-table/?cid=17
(3) The “Summary of the document to be served” is available at: https://www.hcch.net/en/publications-and-studies/details4/?pid=6560&dtid=65