ITALIAN REPUBLIC ON BEHALF OF THE ITALIAN PEOPLE
The Council of State in the courts, the Fifth Chamber
gives the following
ORDER
on the appeal brought by the City of Card, the mayor, Dr. Biagio Fusco, defended by Damien Francis and domiciled in Rome, Via Crescenzio 91, at the offices of Pompei Claudio;
against
Given the appeal, notified on 8 March and filed April 3, 2001;
view the statement of defense filed by the appellant November 20, 2001;
seen all the acts of the case;
Rapporteur, the hearing on 24 February 2009, the director Giancarlo Montedoro (none appeared for the appellant);
held in fact and law considered in the following.
FACT
By application of March 7, 2001 the City of Cardiff appealed the decision of the TAR for the region No. 346, 2001, in which, in allowing the appeal by Mrs. Rachel Manna for compliance with the Article. 37 of Law No 1034 of 1971 by the City of Cardiff to the judged formed on the ruling of the Court of Naples, Civil Section III, No 4616/1996, the administration was ordered to return to the applicant the land parcel described in the Grounds of the ordinary courts, with the reduction of support produced by the administration within 180 days the date of notification of award or date of notification, giving however commence restoration of the rule of the places within 40 days of the date, and order the administration to pay the costs.
Mrs. Manna is not formed in the appeal proceedings.
Mrs. Manna is not formed in the appeal proceedings.
LAW
Contracts should be notified, by the municipal administration, in the unincorporated part of the Act settlement filed in court, copies, and the memory of 20 / 11 / 2001.
The Constitutional Court ruled unconstitutional, as opposed to art. 24 of the Constitution, Article. 292 of the Code of Civil Procedure in so far does not provide for notification to the defaulting party of written report which shall be recorded in the production of the private proceedings of ordinary cognition before the magistrate and the conciliator, in the tit. II of Book II of the Code of Civil Procedure (Constitutional Court No 250 of 1986).
The above sentence expresses a principle, protecting the right of defense in cases of production of documents during the proceedings that are not mentioned in the introduction (as in this case, where only in memory, during the proceedings , has been attached to the transaction, the return of the fund on resignation, while the appeal was focused on other grounds), which reverberates its effects also in the administrative process (especially in cases where a court is at issue is the continued civil), although characterized - as recently considered by this Council Decision No. 26 January 2007 319 of Section IV, - the absence of the institution of default (that is excluding the direct application of the articles of the Civil Code and the Code and reference should be made only to principles they pull).
This principle requires consideration of the rights of the parties is not the part that is when, during the proceedings, to produce documents on the admissibility or merits of the alleged incidents of the parties is not bearing the signature of the latter.
should be noted that according to Art. 2702 cod. civ. "The deed is full proof, to be false, the provenance of the statements by those who have signed, whether the person against whom the writing is produced not recognize the signature, or if that person is legally considered to be recognized .
Repudiation of the private is governed by. 214 of the Code: "The one against which produced a private, whether it will disown, it is required to formally deny their own writing or your subscription.
heirs or assigns may simply not know the state of writing or signing of their author. "
Article. 215 cpc in regulating the tacit approval of the deed also states: "The deed has to be produced in court recognized:
1) if the Party to which writing is assigned or against whom it is produced, is in default, unless the provision of Article 293, third paragraph (ie the right of the fugitive who is to disown the records produced against him);
2) if the party ignores the non-appearance or not they did not know the first hearing or first response post-production.
permitted by law in cases when the writing is produced with certified copies, the investigating judge can grant a deadline for a decision the party makes instance in the manner mentioned in paragraph 2 ".
In particular, in this case, a statement was produced, with a copy of a settlement document, for private writing, from which it follows, according to the City of Cardiff, the subsequent lack of interest to make use of Mrs. Mann, for the same surrendered the right to obtain repayment of the fund.
This memory, with a copy of the act is brought to the attention of Mrs. Manna so that it can, if necessary, to exercise the rights referred to ' art. 214 cpc.
The Constitutional Court ruled unconstitutional, as opposed to art. 24 of the Constitution, Article. 292 of the Code of Civil Procedure in so far does not provide for notification to the defaulting party of written report which shall be recorded in the production of the private proceedings of ordinary cognition before the magistrate and the conciliator, in the tit. II of Book II of the Code of Civil Procedure (Constitutional Court No 250 of 1986).
The above sentence expresses a principle, protecting the right of defense in cases of production of documents during the proceedings that are not mentioned in the introduction (as in this case, where only in memory, during the proceedings , has been attached to the transaction, the return of the fund on resignation, while the appeal was focused on other grounds), which reverberates its effects also in the administrative process (especially in cases where a court is at issue is the continued civil), although characterized - as recently considered by this Council Decision No. 26 January 2007 319 of Section IV, - the absence of the institution of default (that is excluding the direct application of the articles of the Civil Code and the Code and reference should be made only to principles they pull).
This principle requires consideration of the rights of the parties is not the part that is when, during the proceedings, to produce documents on the admissibility or merits of the alleged incidents of the parties is not bearing the signature of the latter.
should be noted that according to Art. 2702 cod. civ. "The deed is full proof, to be false, the provenance of the statements by those who have signed, whether the person against whom the writing is produced not recognize the signature, or if that person is legally considered to be recognized .
Repudiation of the private is governed by. 214 of the Code: "The one against which produced a private, whether it will disown, it is required to formally deny their own writing or your subscription.
heirs or assigns may simply not know the state of writing or signing of their author. "
Article. 215 cpc in regulating the tacit approval of the deed also states: "The deed has to be produced in court recognized:
1) if the Party to which writing is assigned or against whom it is produced, is in default, unless the provision of Article 293, third paragraph (ie the right of the fugitive who is to disown the records produced against him);
2) if the party ignores the non-appearance or not they did not know the first hearing or first response post-production.
permitted by law in cases when the writing is produced with certified copies, the investigating judge can grant a deadline for a decision the party makes instance in the manner mentioned in paragraph 2 ".
In particular, in this case, a statement was produced, with a copy of a settlement document, for private writing, from which it follows, according to the City of Cardiff, the subsequent lack of interest to make use of Mrs. Mann, for the same surrendered the right to obtain repayment of the fund.
This memory, with a copy of the act is brought to the attention of Mrs. Manna so that it can, if necessary, to exercise the rights referred to ' art. 214 cpc.
PQM
The Council of State, Section Five, City of Cardiff in order to perform the 'impending specified reasons.
The case, made the impending discussion at the hearing was postponed to be fixed by the President of the Chamber. Reserve
any other provision in the ritual, the merits and costs. Decided in Rome
day of February 24, 2009 by the Council of State, Section Five, composed of gentlemen
Raffaele Carboni Presinente
Cesare Lamberti Councillor
Filoreto
Claudio D'Agostino Marchitiello Councilor Councilor Councilor
Giancarlo Montedoro east. The author
THE PRESIDENT
f.to Montedoro f.to Raffaele Giancarlo Carboni
FILED IN OFFICE on 06/04/2009.
The case, made the impending discussion at the hearing was postponed to be fixed by the President of the Chamber. Reserve
any other provision in the ritual, the merits and costs. Decided in Rome
day of February 24, 2009 by the Council of State, Section Five, composed of gentlemen
Raffaele Carboni Presinente
Cesare Lamberti Councillor
Filoreto
Claudio D'Agostino Marchitiello Councilor Councilor Councilor
Giancarlo Montedoro east. The author
THE PRESIDENT
f.to Montedoro f.to Raffaele Giancarlo Carboni
FILED IN OFFICE on 06/04/2009.
