Remote justice before Italian civil courts during Covid-19
Pavia e Ansaldo, Italy
The Italian emergency provisions
The Covid-19 epidemic has affected most areas of human activity, causing limitations in virtually every aspect of social life. Like most other sectors, the administration of justice was not left unchanged in the attempt to cope with the disease.
Between the end of February and March, as Italy became the first European country to withstand a massive surge of Covid-19 cases, the government issued emergency legislation aimed to enforce social distancing. Judicial activity was subject to considerable restrictions: in brief, time limits in pending proceedings (as well as statutes of limitations applicable to prospective claims) were stayed from 9 March until 11 May, with only a few exceptions on some urgent matters. In other words – and quite like Austria, Belgium and other European countries – the Covid-19 epidemic emptied Italian courtrooms for more than two months.
The stay of the pending cases was indeed essential to prevent serious jeopardy to the basic right of defence while the Covid-19 epidemic was at its peak; however, at the same time other measures were adopted to control the spreading of the disease while also enabling proceedings to continue after the lockdown period. In particular, as an absolute novelty in our judicial system, Italian judges were allowed to hold civil hearings via remote video conference, provided that some conditions were met and pursuant to the regulations issued by the heads of the judicial offices (ie, the Presidents of the Courts). As a further alternative to in-person hearings in civil cases – again under certain circumstances and again depending on each office head’s regulations – Italian judges were given the power to order in their replacement an exchange of short written defences containing only the parties’ submissions and conclusions.
Such provisions, which in any case were expressly conditional upon the strict observance of the adversarial principle, came into force in March (for those cases exempt from the general stay period) and were initially supposed to apply until the end of July. Most recently, they were extended until 31 October, although the trend followed by the contagion has allowed the courts to reopen and partially return to normal activity in the meantime.
It is also worth noting that, along with the ‘alternative means of civil case discussion’ mentioned above, some existing instruments for the digitalisation of justice were improved and even made (provisionally) compulsory. Namely, under the emergency provisions, writs of summons, complaints and briefs of appearance (as well as any briefs aimed to initiate judicial proceedings) can be filed only electronically, whereas pursuant to the common rules they can be filed either electronically or in ‘old fashioned’ hard copy. Powers of attorney for judicial defence, which normally must be executed in the presence of both the signatory and its counsel, could be issued ‘remotely’ and emailed to the appointed attorney ‘until the ceasing of the social distancing measures set forth by the emergency legislation’ – a quite non-technical wording which could lead to uncertainty.
The Italian experience of remote justice
Although the aforementioned provisions on remote justice are still ‘on the test bench’ so far, it is fair to say that they helped to contain the courts’ backlog and also gave legal professionals the opportunity to appreciate their potential benefit.
Generally speaking, video conference hearings, as well as other digital means of access to justice, produced some perplexity at their debut and were not employed as much as they could have been. The reason is probably related to the technical difficulties experienced sometimes while organising and participating to a video conference hearing. In addition, they are subject to compliance with the Ministry of Justice regulations and the (often very detailed) protocols issued by each court, pursuant to which only two platforms can be used – Skype for Business and Microsoft Teams – and a number of preliminary tasks have to be fulfilled by lawyers, judges and court officers. Replacing in-presence hearings with an exchange of written defences is in many cases an easier choice (thus more widely used); nonetheless, such an option cannot be regarded as a solution fit for every circumstance.
However, on several occasions video conference hearings proved to effectively serve the purpose of allowing cases to proceed in compliance with social distancing measures. In a recent circumstance involving two of our team members, in relation to a case where mainly organisational issues were to be discussed, the ability to meet remotely saved the counsels the burden of a long trip and simply avoided extra costs normally borne by the parties.
Apart from remote hearings – which could very well represent the most delicate aspect of remote justice, given the possible jeopardy to the parties’ right of defence potentially resulting from mere technical difficulties – it is safe to say that the judicial activity in the civil sector benefited greatly from lawyers’ ability to digitally file written defences, access case-files and remotely retrieve documentation. Such functionality predated the Covid-19 emergency and was introduced in the past decade, as a result of a process which combined innovations such as encrypted digital signatures and the so-called certified email format. In brief, thanks to this system – which during the lockdown period became the only possible way to file any defences before the courts – an attorney of record can authenticate on a court case-file, retrieve documents through their digital signature certificate and digitally submit briefs, sending a certified email to each court’s dedicated server.
The general reception and the possible future
In general terms – and based on the information available – it must be noted that some judges (and lawyers as well) reacted with scepticism to the idea of video conference hearings, favouring by contrast the exchange of written defences (or even the postponement of the case to a later date) with the aim of safeguarding the parties’ right of defence.
For instance, the guidelines issued by the Court of Appeal of Florence (Decree 170 of 4 May 2020), along with others, basically provided for the postponement of most hearings or their replacement with an exchange of short briefs, to be followed by the judge’s ruling. A ‘discussion in writing’ was also the solution primarily adopted by the Court of Appeal of Milan’s guidelines, although it also provided for video conference hearings ‘when possible and in compliance with the adversarial principle’.
The ‘virtual’ or ‘video conference hearings’ were also fiercely criticised by some of the professionals involved – most of which were lawyers, particularly criminal law practitioners – who saw in the stable recourse to remote justice a potential serious jeopardy for the effectiveness of oral confrontation and even the beginning of a radical impoverishment of the legal profession.
It cannot be said that any case can conveniently be discussed through a video conference meeting rather than in person. However, judging from recent experience, videoconference hearings might become a useful instrument in the future, to be used under specific circumstances. This might be the case of remote hearings set upon agreement of all parties and the judge (as the most recent amendments set forth), or depending on the content and purpose of the hearing as some court protocols ultimately suggest.
A proactive approach to justice administration perhaps should not overlook the opportunities offered by modern technologies to innovate and render our judicial system more cost-effective, without prejudicing its essential principles nor the central role of oral debate in civil trials. In fact, the introduction of new digital means might raise some initial scepticism – as it happened in the past – but can also represent an opportunity not only for social distancing, but also for faster and more efficient access to justice.
. European Union Directorate-General, Justice and Consumers, ‘Comparative table on Covid-19 impact on civil proceedings’, see https://e-justice.europa.eu/content_impact_of_the_covid19_virus_on_the_justice_field-37147-en.do, accessed 26 October 2020.
. The abovementioned provisions were introduced by virtue of some Law Decrees – temporary law provisions that the Government can issue ‘in extraordinary circumstances of necessity and urgency’. However, such decrees must be ‘converted into law’ by the Parliament within 60 days after its issuance, or they will become void from their very outset. In the case at stake, when each Law Decree was converted the Parliament took the opportunity to make several amendments. In particular, the end date of the remote justice emergency provisions was first hastened from 31 July 2020 to 30 June 2020, then extended to 31 October 2020. The scope and functioning of such instruments were also improved in the process.
. Among others, see G. Scarselli, ‘Against remote hearings and de-materialization ofjustice(Contro le udienze da remoto e la smaterializzazione della giustizia)’, www.judicium.it, accessed 26 October 2020.