Urgent measures for court proceedings during the coronavirus emergency: courts are open for business

This document is to be considered an update only and is not legal advice. Whether a proceeding falls within the categories that are not affected by the ex officio suspension shall be assessed on a case-by-case basis.

Following the spread of the coronavirus contagion in Italy, the government has drafted and approved a Law Decree concerning urgent measures to ensure the functioning of courts during the coronavirus emergency.

The previous Law Decree No. 11 (link: https://portolano.it/en/newsletter/portolano-cavallo-inform-litigation-arbitration/urgent-measures-for-justice-during-the-coronavirus-emergency-courts-are-open-for-business), published during the night of March 8, 2020, has been repealed and its measures transferred into Article 83 of the Law Decree no. 18 of March 17, 2020 published on the same day on the Italian Official Journal.

The Government ordered that all hearings within the abovementioned period are postponed ex officio until after April 15 and, therefore, will not take place.

With regard to civil proceedings, hearings that are not affected by the suspension and will take place include, among others, (i) interim proceedings regarding the protection of fundamental rights of the person; (ii) adoptions; (iii) matters concerning family and the protection of minors; and, in general, (iv) all those suits where a delay in the decision may cause severe harm to the parties.

In this latter case, a declaration of “urgency” will be made by the head of the appropriate judicial office or by his/her delegate, if the proceeding has not started yet, or by the judge or the president of the panel, if the proceeding has already started.

All other proceedings, both on the merits and on an urgency basis, are affected by the ex officio postponement.

Except for what concerns the proceedings that are not affected by said postponement, all the relevant procedural deadlines (including, among others, for starting suits, filing briefs, and submitting appeals) are suspended until April 15. When a deadline would start to elapse during the abovementioned period, it will instead not start to elapse until the end of the period.

As for criminal justice, hearings that will take place notwithstanding the suspension period include, among others, (i) hearings for the validation of arrest or when requested by a defendant under arrest; (ii) interim proceedings regarding the application of precautionary or prevention measures; and (iii) hearings for taking evidence that cannot be postponed on the basis of declaration of “urgency” made by the judge or the president of the panel at the request of one of the parties. Such declaration cannot be challenged.

With regard to the criminal proceedings affected by the postponement, the statutes of limitation are suspended until new hearings take place and, in any case, no later than June 30. The provisions on the suspension of the procedural deadlines apply also to criminal justice.

Similar provisions are provided for administrative justice and tax justice.

The government specifies that these measures, for such a period, ultimately serve the purpose of allowing offices to reorganize their activities and, where possible, allow hearings to take place remotely by means of teleconference or videoconference systems or by an exchange of written briefs instead of participating in person to the hearing.

It is clear that these measures will cause immediate delays in pending proceedings, given that the categories affected by the suspension are not very clear and some doubts remain about their interpretation.

However, giving judges some room to organize their activities allows justice to move ahead. The general director of the Ministry of Justice department for organization of judicial activities confirmed, via a decree issued on March 10, 2020, that hearings can even take place remotely, via the programs Microsoft Teams or Skype for Business. The relevant decision is left to the discretion of the judge.

In criminal proceedings, videoconference systems are already used in some cases, so it is likely that judges in civil divisions will adopt similar systems, where possible. Furthermore, briefs and documents are already filed before ordinary courts and appellate courts in civil proceedings entirely via electronic systems; communications and notifications to the parties within criminal proceedings shall be served to the respective defense counsels’ certified emails; therefore, the only time one needs to visit the courthouse is to appear at a hearing.

Ultimately, this emergency situation is forcing Italy to take an additional step forward toward wider use of online management of cases and wider implementation of electronic systems that have been successfully used for several years now.

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