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DigiRights Newsletter 2: Report from Italy

Dear all,

In this second newsletter, we provide some information on the recent reform of the Italian criminal justice system, particularly from the point of view of digitalisation.

In 2021, the legislator, through the Delegated Law n. 134/2021 and the Legislative Decree n. 150/2022, amended many provisions of the Criminal Code and the Code of Criminal Procedure in order to improve the efficiency and the quality of Italian justice. The main aim of this reform was to address one of the chronic problems of our system: the excessive length of criminal proceedings.

In general, in Italy, the discussion on digitalisation refers to two different but complementary perspectives: the “telematic criminal procedure” (or the “telematic judicial procedure”) and the “remote procedural activities”. The first term refers to digital tools and legal rules that allow the computerised or digital management of information and procedural activities at all stages of the proceedings. The second refers to the possibility of remote procedural activities (such as the questioning of suspects in the investigation phase) and virtual court hearings.

From the first point of view, the Italian Parliament has introduced an organic and general provision on telematic judicial proceedings by amending three important articles of the Code of Criminal Procedure (CCP). The new article 110 of the CCP stipulates that procedural acts must, as a rule, be created and stored only in digital form in order to guarantee their authenticity, integrity, readability, interoperability and, where required by law, secrecy. However, this provision does not apply to documents which, by their nature or because of specific procedural requirements, cannot be produced in electronic form.

In the same context, article 111-bis of the CCP provides that procedural acts at all stages of the procedure may only be filed in electronic form; however, even in this case, the parties may use traditional filing methods for acts that cannot be drawn up in electronic form. It is important to note that this provision also applies to the appeal procedure (Article 582 of the CCP). The third important provision is Article 111-ter CPP, which for the first time introduces electronic files. The first paragraph of the provision establishes the general rule that procedural acts must be created, stored, updated and transmitted in such a way as to ensure their authenticity, integrity and accessibility.

The legislator has also intervened to introduce a provision on the malfunctioning of the digital justice system: whether the failure concerns the central system or the individual court system, all parties may create and deposit files or documents in analogue format. It is important to note, however, that the new regulation will not enter into force until 31 December 2023, the date by which the Minister of Justice must adopt an implementing a regulation, specifying the provisions contained in the CPP. In fact, the Italian legislator is aware of the need for a digital transition to enable court offices to adapt to the new rules, especially from an IT and infrastructure point of view.

As we have observed, the Italian reform also introduced new rules on the use of digital and information technologies as a new form of documentation of (i) procedural activities; and (ii) the celebrated remote hearings (also trial hearings).

In the first perspective (i), it seems possible to distinguish between the audiovisual documentation of activities outside the trial hearing and the use of audiovisual documentation during the cross-examination of witnesses, experts and the accused in the trial hearing. On the one hand, article 134 of the CPP stipulates that audiovisual and phonographic reproduction must be the general method of documenting acts in criminal proceedings, such as the interrogation of a suspect in vinculis by the public prosecutor (art. 141-bis CPP).

On the other hand, article 510, paragraph 2-bis of the CCP stipulates that the hearing of witnesses, experts and the accused in the trial must be documented by digital means, in particular by means of audiovisual documentation. On one side, the legislator wanted to make the recording of the testimony completer and more faithful, enabling the judge to appreciate the testimony in its original version and to grasp the so-called “non-verbal communication” and attitudes of the testifying person. On the other, the new rule allows judges to rehearse or review a procedural activity in all cases where repetition is not possible. Consider, for example, the situation in which the judges who participated in the trial are not the same as those who participated in the deliberation (principle of immediacy).

With regard to the second point (ii), the recent reform introduced a general rule on remote/virtual participation in proceedings. With the new articles 133-bis and 133-ter of the CCP, the legislator's aim is to establish some general principles and fundamental guarantees that must be respected in any case of remote participation. The main points are as follows:

The “golden rule” is the (effective and informed) consent of the defendant to the remote execution of the procedural act. Even if it isn’t expressly provided for in the general provisions (articles 133-bis and 133-ter CPP), this rule is established in the specific provisions introducing the hypothesis of remote participation (such as articles 294, paragraph 4, and 496, paragraph 2-bis CPP).

Secondly, remote participation must in any case guarantee:

  1. the right to information of the persons participating in the act or hearing;

  2. the effectiveness of the participation and the legal assistance of the lawyer. In this sense, the audiovisual link must, under sanction of nullity, be set up in such a way as to ensure the adversarial process (cross-examination) and the contextual, effective and reciprocal visibility of the persons present in the various locations, as well as the possibility for each of them to hear what the others are saying;

  3. the visibility of the public hearing.

In short, the recent Italian reform could be a turning point in improving the quality and efficiency of the criminal justice system. Nevertheless, the concrete effectiveness of the new provisions will depend to a large extent on the interpretation that will be given by the judiciary and on the ability of the parties to fully understand the innovation of the new “penal structure 2.0”.

DigiRights Team, University of Genova

August 2023.

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