Italy: COVID-19 and the Digitalization of the Legal System

Author:

Attorney Antonio Rossi - Attorney at the Italian Corte di Cassazione

The Situation Before COVID-19

As is often the case, dramatic and sometimes tragic events have prompted significant changes in various aspects of affected nations' social fabric. The COVID-19 pandemic was no exception in its effect on the Italian procedural legal system.

Until 2020, the civil procedural framework was transitioning from a purely paper-based system to a digital format and this shift was facilitated by an initially hybrid system that allowed legal practitioners, especially lawyers, to choose how to file documents either in paper format through the court registry or digitally through the Telematic Civil Procedure (PCT) system, which had been established during that time (1).

Subsequently, the system transitioned exclusively to a telematic mode, replacing paper files with electronic dockets.

This innovation required lawyers to equip themselves with appropriate technological tools to interact with the court registry and, by extension, with judges as well. However, it did not change the requirement for the personal appearance of attorneys, nor did it affect the need for parties involved to physically attend court when procedural rules demanded it.

The Situation During COVID-19

When the COVID-19 pandemic hit, it became necessary to drastically reduce face-to-face interactions while still maintaining essential services, including the administration of justice.

This situation led to the urgent enactment of exceptional regulations via decree-law, utilizing the Government's emergency legislative powers.

These measures effectively kept lawyers and parties away from the courthouse because the traditional (face-to-face) hearings were replaced with written submissions, where parties presented their requests to the judge, and the latter could then decide either through written communication or via online connection.

In practice, this online approach highlighted the shortcomings of the Italian judicial information system, which suffered from both inadequate infrastructure and a lack of technological resources available to legal professionals; as a result, there were often technical difficulties in establishing connections among the actors involved and, more critically, the system relied on platforms provided by private firms rather than those provided by the State itself.

The Current Situation

As the emergency phase has now passed, and with the impetus of the National Recovery and Resilience Plan (PNRR) demanding improvements to the justice system, Italy has committed to a series of reforms aimed at expanding the digitalization of proceedings across civil, criminal, and administrative jurisdictions.

However, a key issue is the lack of uniformity in the tools for judicial digital implementation; different access mechanisms to court registries have been established for each branch of the justice system. Hence, this fragmentation has led to a situation where lawyers must adapt their tools and knowledge to navigate different systems, while judges remain confined to the knowledge of the single system they use.

Moreover, remote hearing protocols have been established and refined, primarily through paper submissions or, less frequently, via video calls. While the use of written submissions may offer advantages for certain types of hearings in terms of procedural efficiency, the opportunity for direct engagement before the judge is often crucial to the outcome of the case.

Particularly disadvantageous is the requirement for written submissions in Appellate and Cassation proceedings, which, following the "Cartabia" Reform (3), has become the standard for conducting criminal trials.

In my view, public hearings with oral arguments are particularly crucial in criminal cases, as these proceedings inherently rely on the impressions formed during the hearing itself. However, the current, regrettable practice involves placing the burden on the party to justify their request for an oral hearing.

It's hard not to wonder if the legislator, taking advantage of the COVID-19 pandemic, have tried to permanently distance lawyers and their clients from the courthouses, treating them as extraneous elements to the justice system and risking to leave judges isolated in their chambers.

This quick and poorly thought-out change was supposedly meant to streamline the justice system. In reality, though, it's had the opposite effect: making things take longer and cost more.

In line with the opinion I have expressed here, the advancement of Artificial Intelligence systems is likely to exacerbate citizens' sense of alienation from the justice system, potentially further compromising access to this essential service.

This raises a critical question:

Does the protection of rights, as enshrined in our Constitution and laws, remain the true goal of our legal system? Or does this hastily implemented legislation signal a potential decline of it?

References

1) Legge 24 December 2012, No. 228, Stability Law 2013, Gazzetta Ufficiale della Repubblica Italiana, 27 December 2012, No. 302; Decreto Legge 24 June 2014, No. 90, Urgent Provisions for Administrative Simplification and Transparency and for Digital Innovation, Gazzetta Ufficiale della Repubblica Italiana, 24 June 2014, No. 144.

2) Local judicial authority responsible for adjudicating minor civil and criminal cases, including small claims, misdemeanors, and family law matters.

3) Decreto Legislativo 10 October 2022, No. 150, Provisions for the Implementation of the National Recovery and Resilience Plan (NRRP) concerning Justice Reform, Gazzetta Ufficiale della Repubblica Italiana, 11 October 2022, No. 240.

Biography of the Guest Expert

Antonio Rossi is an experienced Italian Lawyer with 35 years of experience and a career rooted in a solid background in criminal, private, and administrative law. He holds a degree in Law from the University of Pavia (Italy).

He is registered with the Bar Association at the Court of Pavia, and is fully authorized to practice before the Corte di Cassazione (Court of Cassation) and higher jurisdictions.

He is a former honorary Deputy Prosecutor with the Public Prosecutor’s Office of Voghera, as well as a former member of the Voghera Bar Council.

He has also previously served as the President of a Competitive Examination Board for the Ministry of Culture and Education, supervising PNRR school construction projects.