Constitutional Court Judgement of 25 January 2010, n.26 proceedings concerning the 'constitutional incidentally.
Civil Procedure - Application for interim uniform -Assessment technical estimate - Possibility 'to propose the application, if the arbitration clause, the compromise of proceedings or arbitration, the judge would have had jurisdiction to hear the substance - Failure prediction - unreasonableness, for lack of arguments justifying the diversity 'of legislation, that with respect to arbitration, including the technical appraisal, and other protective measures-lesion of the right to trial and the right of defense-Unlawful' constitutional extent.
- Cod proc. Civ., art. 669-quaterdecies.
- Constitution, Art. 3:24 .
Article. 669 quaterdecies Code, under the heading scope, provides that the provisions dellla Section I, Chapter III of Book IV of the Code, relating to protective proceedings in general, apply the measures laid down in Section II, III and V as well, mutatis mutandis, to other protective measures covered by the Civil Code and special laws. Only the art. 669 f cpc on the negative decision and the government expenditure, also apply to preventive measures of education under Section IV of Chapter III. The textual data, therefore, reveals unique model in which the measures of prior education (art. 692 cpc -699), and therefore the investigation technical budget (art. 696 CCP), the rules governing proceedings and the related interim measures do not apply, except for the aforementioned art. 669 f cpc Just this exception is to reaffirm the intent of the legislature to that effect, that intent is confirmed in the preparatory work, which show that it was thought to exclude the preventive measures of education from pre-trial proceedings applcativo uniform, because them, although protective measures, are not connected to the proceedings. Therefore, we must share the conclusion reached by the court, that the wording of Article. 669 quaterdecies CCP does not allow an interpretation different from the one he adopted.
As this Court has noted, the unequivocal language of the rule marks the border in the presence of such an attempt of interpretation must give way to constitutional judicial review (Case No. 219 of 2008, Section 4 of the legal considerations) .
That said, it should be noted that the precautionary nature of preventative education measures (confirmed by the systematic position of the institution) is generlamente recognized and was recently affirmed by this court, that pointed out the ratio of inspiration, for the avoidance that the trial will be resolved for an injury to the part which would be recognition of its grounds (No. 144 of 2008), not being able to cast doubt on the alteration of the condition of the premises or, in general, what you want to submit to investigation techniques, they can cause irreparable prejudice to the right that the requesting party intends to rely.
This form of protection is a key component of that judicial function and compared to the full implementation of this, also plays an instrumental role, common to both types of anticipatory measures that those conservative (Case No. 421 and No. 253 of 1996 1994). In this context, justifies the expansive nature of the rules of uniform pre-trial proceedings (art. 669 bis et seq CCP), their character art. 669 quaterdecies is established by law. In ranks of those rules include Article. 669 d cpc whereby, if the dispute is the subject of arbitration clause or by arbitration (not ritual) or if the arbitration is pending, the application of precautionary measures, it proposes that the prohibition imposed by arbitrators' art. 818 Code of Civil Procedure, unless otherwise provided by law, be made to the court which would have had jurisdiction to hear the merito.Pertanto, according to the provision just quoted, even pending the arbitration is allowed, inter alia, request the seizure of books, records, documents, models, samples and anything else that are needed to infer from the evidence, when it is controversial the right to display or to the communication and should ensure its safe tempranea (art. 670, No. 2, CCP), while it is not possible to obtain similar protection by a technical appraisal, in spite of supervision and the objective evidence comunenatura pursued by both instruments. Without these points, it should be added that there is no incompatibility between the general legislation on precautionary measures ela provision concerning the technical appraisal. I particular, this incompatibility is not apparent in the ground that the latter does not require the establishment within a specified period of ordinary trial, while in uniform procedure, if the application was first proposed the merits of the case, the order is accepted must set a deadline for the start of proceedings that, pursuant to the procedures of Article. 669 g Code, even if the dispute is the subject of compromise or arbitration clause (the fifth paragraph of that provision).
It 's true that the rules laid down in Articles. 692-699 CCP does not provide a deadline for the start of the ordinary trial, but this profile, provides a form of independence among the measures of preventive education and the main proceedings, does not exclude the precautionary nature of the underlying measures, nor it deprives the connection with the proceedings, with respect to which they are instrumental in nature, so that the intake of these measures is without prejudice to issues relating to their admissibility and relevance, to be verified just dined in the main case in which the minutes of the preventive tests can not be made, nor mentioned nor played in the first copy that the evidence they have been declared eligible in the same court, pursuant to art. 698 cpc
clarified that respect, it should be noted that the exclusion from the scope of the investigation prior technical defined in art. 669 quaterdecies Code, resulting in inapplicability of Article. 669 d, no more than the election of reasonableness with reference to Article. 3, first paragraph of the Constitution Indeed, la ratio diretta ad evitare che la durata del processo ordinario si risolva in un pregiudizio per la parte che intende far valere le proprie ragioni, comune ai provvedimenti di cui agli artt. 669 bis e seguenti ed all'art. 696 c.p.c. , il carattere provvisorio e strumentale di detti provvedimenti, rispetto al giudizio a cognizione piena, del pari comune, nonchè l'assenza di argomenti idonei a giustificare la diversità di disciplina normativa, con riguardo all'arbitrato, tra il provvedimento di di cui al citato art. 696 e gli altri provvedimenti cautelari , i quali possono essere ottenuti ricorrendo al giudice, anche se la controversia, nel merito, è devoluta ad arbitri (art. 669 quinquies c.p.c.), rendono del tutto irragionevole la detta esclusione.
addition, it also violates Article. 24, second paragraph of the Constitution because the ompossibilità esplatare of the technical appraisal in the event of a dispute be referred to arbitration (which, as we have said, can not grant interim cautlari, except as otherwise provided by law) undermines the right to test for the possible alteration of the state of the site or what you want to submit technical assessment, resulting in injury to the right of defense.
Based on the foregoing, it shall declare the unconstitutionality of the contested provision in so far, excluding the application of Article. 669 d cpc orders for in art. 696 dello stesso codice, impedisce, in caso di clausola compromissoria,di compromesso o di pendenza di giudizio arbitrale, la proposizione della domanda di accertamento tecnico preventivo al giudice competente a conoscere del merito.
Dispositivo
La Corte dichiara l'illegittimità costituzionale dell'art. 669 quaterdecies del c.p.c. , nella parte in cui , escludendo l'applicazione dell'art. 669 quinquies dello stesso codice ai provvedimenti di cui all'art. 696 c.p.c. , impedisce , in caso di clausola compromissoria, di compromesso o di pendenza di giudizio arbitrale, la proposizione della domanda di accertamento tecnico preventivo al giudice che sarebbe competente a conoscere del merito.
