The extension of emergency status also extended the procedural provisions that introduced the opportunity to hold hearings via videoconference or to exchange briefs in lieu of holding hearings in Italy.
This, along with the introduction of e-filings in proceedings pending before the Court of Cassation, has made it possible to rethink the traditional ways in which trials were previously carried out. Even in a tragic situation that has impacted the entire world with negative outcomes, new ideas can be developed that bring benefits. The judicial activity of counsel in Italy is often characterized by hearings that do not require the attendance of the parties and their counsel. These hearings are provided by the Procedural Civil Code but are restricted to short and standard activities, i.e., a request for postponement of the hearing or a request for a deadline for subsequent briefs. We need to rethink these activities and their use of technology, as demonstrated by the Covid-19 pandemic period. Virtual hearings can completely replace some of the non-substantive hearings that previously were conducted in person. This could result in significant improvements in terms of time and cost savings for the clients of law firms and may contribute significant environmental benefits by reducing the need for transportation.
How technology can replace judicial activities
In particular, Art. 23 of Legislative Decree No. 137 of 2020 provided some provisions designed to regulate the development of both criminal and civil judicial proceedings that were effective until the end of the emergency. As the emergency has been extended, the provisions will continue to apply at least through April 30, 2021. The above provisions concern all proceedings, both civil and criminal, and specifically provide for: the possibility that hearings that the public is allowed to attend may be held without the public being present; that attendance at any hearing may occur via VC connection for detainees, prisoners, persons on remand, and arrestees; that judges may take part in virtual hearings by connecting from a place other than their judicial offices; and that collective decisions may be made in chambers via VC connections. All these measures were originally designed to allow activities to be performed at a safe distance.
The innovations introduced for the emergency period include the use of technology to avoid contact and waiting in line at public establishments, i.e., the possibility to pay standard fees by means of telematic payment systems and to participate in civil hearings by having one or more parties and one or more members of counsel, at the request of the interested party, interacting by means of remote audio-visual links. Furthermore, with regard to technical experts, a judge may order a consultant to swear an oath to faithfully fulfill the functions entrusted to them by signing a statement with a digital signature before starting technical operations; that statement is then filed in the docket for the proceedings. The Council of State has even recognized means provided by the legislature in times of pandemic as the only viable means to conduct hearings. It has held that, ratione temporis, the only possibility for discussion contemplated and allowed by the law is via virtual connection on an extraordinary and temporary basis. According to the Council of State, an interpreter would be precluded from any interpretation option that requires them to attend a hearing, to be understood as a circumstance excluded, implicitly but clearly, by the cited reference legislation (due to its comprehensive and exhaustive nature).
A more relevant development has been the opportunity for a judge to order that civil hearings that do not require the attendance of persons other than the parties’ counsel be replaced by the electronic filing of written notes containing only requests and conclusions. As the months have gone by, judges have often made use of this option, although changing the hearing from oral to written does not always yield benefits.
Lengthy trials are already a common problem, and requiring the production of additional written papers raises the risk that counsel will bloat the proceedings with pages that reference previous events that the judge will then be required to read. In this way, even a hearing that could have been very quick ends up adding to the judge’s workload. At the same time, written notes as a tool could be maintained in the future. For example, a first appearance hearing frequently focuses on requesting time to file subsequent briefs. A short written note that replaces the presence of the parties could be sufficient to request deadlines and would save travel time for counsel, with a definite environmental benefit.
Application of technology in proceedings before the Supreme Court of Cassation
Some of the abovementioned provisions might not be applicable to proceedings in the Supreme Court of Cassation. For example, it has been noted that a public hearing can hardly be replaced by a hearing in the form of exchange of written notes, as this format does not appear to be usable in the Supreme Court of Cassation, due to the fact that the provisions on the electronic filing of procedural deeds do not apply to civil proceedings before the Supreme Court.
However, the newly introduced decree of January 27, 2021 from the Ministry of Justice provided for activation of an electronic filing system for deeds and documentation from parties’ counsel in the civil sector of the Court of Cassation beginning March 31, 2021, thus extending these provisions to proceedings before the Supreme Court of Cassation.
Do the same rules really apply before the Supreme Court of Cassation?
As of March 31, 2021, it will be possible to file deeds and documents electronically with the Supreme Court of Cassation, as in the ordinary courts and appellate courts. However, paragraph 3 of article 221 of Law Decree 34/2020 provides that “In judicial offices that have telematic filing tools available, the deeds and documents referred to in article 16 bis, paragraph 1 bis, of Law Decree October 18, 2012, No. 179 [i.e., all relevant deeds and documents for the proceedings], […], are also to be filed exclusively [with telematic tools].”
This provision, which has now been extended through April 30, 2021, establishes mandatory telematic filing of all court deeds, writs of summons, and statements of defense in judicial offices where telematic filing tools are available.
So it is reasonable to ask whether, as of March 31, 2021, counsel will be obligated to file deeds and documents electronically, even before the Supreme Court of Cassation, or whether they will only have the right to do so, meaning that it will remain possible for counsel to continue to make physical filings as they always have.
We believe that the answer is found in the provision set out in paragraph 5 of article 221 of Law Decree 34/2020 in its current version, which provided that “In civil proceedings before the Court of Cassation, the filing of deeds and documents by counsel may be carried out by telematic means,” thus allowing both options and not barring the use of “ancient traditions.”
A glimpse of the future
Now that the current scenario has shown us that there are other equally effective solutions, the legislature should have the confidence to modify substantially some of the provisions that throw a wrench into the work of lawyers and very often discourage foreign clients from bringing their business to Italy for fear of having to deal with Italy’s judicial red tape. The alternatives are available and actually work, technology can change and improve daily activities, and investments have been made that make it possible to implement technological tools. Italy can and should become a country where even foreign companies, when choosing the law and jurisdiction applicable to a certain contract, can be certain they will be able to rely upon a fast and secure justice system.