Final steps for the digital transformation of Italian civil proceedings – the development of remote justice in the Italian civil courts

Antonio Martini

CBA, Milano

antonio.martini@cbalex.com

Ilaria Canepa

CBA, Milano

ilaria.canepa@cbalex.com

In 2012, the Italian Government started the digital transformation of Italian civil proceedings by introducing the laws and tools needed for civil proceedings by electronic means (the so-called Processo Civile Telematico). In particular, Law Decree no. 179/2012 provided that, as of 30 June 2014, civil proceedings could be initiated by electronic means before the courts of first instance and, as of 30 June 2015, before the courts of appeal. As a consequence, nowadays lawyers are allowed to file a digitally signed PDF version of a judicial submission before any Italian court of first instance and court of appeal.

Any judicial submissions filed by electronic means have to bear the certified electronic signature of the lawyer filing the document in order to guarantee their origin and source. For this reason, the government constituted a register of certified email addresses called Reginde, which is managed by the Italian Minister of Justice. This register collects the certified email addresses of the lawyers admitted to the Italian Bar Association, experts of the courts and any other officers of the courts who need to file any documents in the context of civil proceedings. The certified email has the same legal value as a registered letter with return receipt. Consequently, any notification to lawyers registered in Reginde can be performed via certified email (the so-called Posta Elettronica Certificata, or PEC).

In addition to Reginde, a specific digital platform has been created so that lawyers can directly and officially communicate with the offices of the courts of first instance and courts of appeal. These two innovations represented the first steps for the implementation of the civil proceedings by electronic means.

Procedural filings are finalised through an ‘IT envelope’ (busta telematica), which contains the judicial pleadings and is addressed to the offices of the court. The IT envelope is encrypted in order to ensure that its content is kept confidential and that it can only be read by the receiving court. Once the IT envelope is received, the officers of the court download its content and make it available to the counterparty through the previously mentioned digital platform. Also, the initial court fee provided for by law (contributo unificato) and stamp duties can be paid electronically through a dedicated online procedure requiring the authentication of the filing lawyer. Further, any communications and notices addressed by the offices of the court to the lawyers of the parties during the judicial procedure are sent exclusively via certified email.

With the digital transformation of the civil proceedings, any judicial document can be filed electronically with the courts of first instance and the courts of appeal in Italy. Only the initial submissions of the proceedings such as the writ of summons and the statement of defence can also still be filed in hard copy form with the offices of the Court. However, nowadays a majority of the lawyers opt for digital filing. In any case, once the civil proceedings have commenced, any further submission must be filed by electronic means. In addition, any professional or expert appointed by the court must file all documents relating to the procedure electronically. The digital transformation has impacted the activity of judges, who are required to issue any order and/or judgment of the procedure by electronic means. Any order and/or judgment of the court is communicated to the lawyers of the parties via certified email by the officers of the court and remains available for consultation by the parties to the process in the digital file in the digital platform.

The Covid-19 pandemic accelerated the digital transformation of the civil proceedings in Italy. In fact, according to Law Decree no. 18/2020 (Article 83, paragraph 7; converted into Law no. 27/2020), in the initial months of the pandemic (between 9 March 2020 and 31 July 2020) any judicial document could only be filed by electronic means.

Therefore, lawyers could not commence civil proceedings through the filing of hard copies of any writ of summons or statement of defence. In this respect, electronic filings of court submissions allowed the judicial activity to continue during the Covid-19 pandemic, although it should be noted that ordinary civil proceedings were suspended in the first lockdown between 9 March 2020 and 11 May 2020.

With the final steps of development of the Italian civil proceedings by electronic means, and as an outcome of the pandemic, a judicial order and/or judgement can also be enforced by electronic means from January 2021. In particular, Law Decree no. 137/2020 (Article 23, paragraph 9) allows the lawyer of a creditor to file a specific instance through the abovementioned digital platform to ask for the release of an order of enforceability.

Upon receipt of the instance of the lawyer and the relating payment, the offices of the court will release that order of enforceability in electronic form. According to Article 475 of the Italian Civil Procedure Code, the order of enforceability (the formula esecutiva) must be attached to any judgement and/or injunction order prior to the commencement of any enforcement procedure against the assets of the debtor. Therefore, the opportunity to digitally obtain that order contributes to speeding up the process for the judicial recovery of a credit.

Finally, the process of digital transformation of civil proceedings recently concerned also the Italian Supreme Court. Law Decree no. 34/2020, converted into Law no. 77/2020 (Article 221, paragraph 5), provides that any judicial pleading and document can be filed by electronic means before the Supreme Court starting from 31 March 2021.

Considering that any proceedings brought before the Supreme Court represent last instance proceedings, and given that the executive proceedings allow to judicially enforce any order and judgement issued by the courts, these last two initiatives of the government have completed the digital transformation of Italian civil proceedings. This accomplishment represents a step forward to the efficiency of the Italian judicial system, which should encourage foreign investors to operate in the Italian business market.

The digital transformation of the Italian civil proceedings has helped lawyers to manage cases before any civil courts spread across the Italian territory. In fact, when the civil proceedings were based on paper only, a lawyer based in Milan needed the cooperation of a colleague in Rome in order to access the file of the process pending before the Court of Rome and take a copy of the counterparty’s pleadings such as of any order and judgment. Thanks to the digital transformation, today lawyers can monitor their cases at any time, even through their mobile phone, and can be notified in real time of any update concerning their files.

Finally, the digital transformation started with the implementation of the certified email, which would be useful to formally communicate in the European Union between European lawyers and companies. It would also improve the market of legal services on an international level.