PODERES DEL JUEZ Y DERECHOS DE LAS PARTES EN EL PROCESO CIVIL: LAS ENSEÑANZAS DE CALAMANDREI Y LAS REFORMAS PROCESALES EN EUROPA

Abstract

Th e author recalls Calamandrei’s repeated warnings regarding the dangers of an authoritarian involution of procedure, highlighting his tireless defence of the fundamental role of the activity of the parties in the proceedings, as a means of limiting and controlling the activity of the judge. Following the Florentine teacher, the author focuses on recent procedural reforms in Europe, as a result of which he concludes that currently there is little point in insisting on stressing categories or notions such as “private” and “public”, “liberal” and “authoritarian” in order to fi nd solutions to the problems of civil justice. The trend today in Europe is to design “elastic” rather than “synthetic” procedures, articulated by terms provided by law, and whose specifi c duration is set by the judge according to each case. A procedural scheme divided into two phases is adopted. Th e fi rst phase is for preparation (and possible early termination of the cause), and is based on the judge’s active presence; the second is the acquisition of evidence and sentencing. Finally, the author highlights the fact that gradually and not without diffi culties, both in terms of theoretical development and practical application, the way has been paved for understanding that procedure (as a means of applying the law) aims, wherever possible, at also checking the truth of the facts in dispute. Th is had led to the introduction of “exhibitory” instruments, which share the common feature of being aimed at acquiring useful evidence for verifying those facts.