The Italian Route towards Digitalisation of Criminal Proceedings. The Latest Developments in the Field of Remote Justice

O caminho italiano para a digitalização do processo penal. Os últimos avanços no campo da justiça remota.

Abstract

The development of the remote justice paradigm plays a key role in the digitalisation of criminal proceedings as provided for by Legislative Decree n. 150 of 2022. Taking advantage of the experience gained during the COVID-19 pandemic, when audiovisual links demonstrated their potential in terms of time savings and efficiency for the judicial system, the legislator decided to make participation by videoconference a stable and general alternative to in-presence participation for a wide range of acts and hearings (including the taking of evidence) provided that persons concerned give their consent. After reviewing the milestones in the evolution of the meaning and scope of remote justice within the realm of the Italian criminal procedure the paper attempts to answer two questions: how does the new legislation fit into the academic and jurisprudential debate developed on the subject over the years? Is the current framework able to combine efficiency and guarantees in a satisfactory way?

Keywords
Remote justice; participation by videoconference; virtual hearing; defense rights; right to confrontation

Resumo

No caminho rumo à digitalização do processo penal promovida pelo Decreto Legislativo n.º 150 de 2022, o aprimoramento do paradigma da justiça remota desempenha um papel fundamental. Ao aproveitar a experiência adquirida durante a pandemia de COVID-19, quando as conexões remotas demonstraram seu potencial em termos de economia de tempo e eficiência para o sistema judicial, o legislador decidiu tornar a participação por videoconferência uma alternativa estável e geral à participação presencial para uma ampla gama de atos e audiências (incluindo procedimentos de produção de provas), desde que as pessoas envolvidas afirmem o seu consentimento. Após uma visão geral dos marcos na evolução do significado e do escopo da justiça remota no âmbito do processo penal italiano, o artigo procura responder a duas perguntas: como o novo diploma legislativo se encaixa no debate acadêmico e jurisprudencial desenvolvido sobre o assunto ao longo dos anos? O atual quadro é capaz de combinar de maneira satisfatória eficiência e garantias?

Palavras-chave
Justiça remota; participação por videoconferência; audiência virtual; direitos de defesa; direito ao confronto

1. Introduction

In 2022 the Italian legislator promulgated an ambitious reform (the so-called “Cartabia reform”) aimed at meeting three demanding imperatives: to reduce by 25% the so called “disposition-time”, i.e. the average time needed to adjudicate the case; to reduce the backlog in the courts; to simplify and rationalise the criminal justice system².

One of the pillars of the reform is digitalisation, with a wide range of measures aimed at making criminal proceedings faster, more technology-oriented and possibly “paperless”. In addition to the implementation of the digital dossier and notification mechanisms which largely take advantage of the digital domicile the consistent expansion of remote justice stands in this perspective. As has been noted in literature, this is one of the most sensitive aspects of the reform as it calls into question the rights of the defence and the adversarial nature of criminal proceedings. At the same time, it is clear that the push towards remote participation in acts and hearings may well satisfy the demands for efficiency on which the new legislation is based.

Against this background, the aim of this essay is to analyse the new broad regulation on remote justice. In this perspective, after reviewing the milestones in the implementation of the remote justice paradigm in the field of criminal procedure and the related academic and jurisprudential debate from early 1990s to the present day, particular attention is paid to the key role played by the consent clause, which appears in each of the new cases of remote participation in acts and hearings. The thesis presented here is that, despite its theoretical suitability for facilitating the technological “switch” without significant cost to fundamental rights, it may not function properly in practice. In this respect, some proposals are made to smooth out the identified criticalities and to improve the perspective of a knowing and intelligent waiver to the right to physical presence in criminal proceedings.

2. First steps, stabilization and growth

At the dawn remote justice was enclosed within narrow bounds.

It was in 1992 that the Italian legislator first opened the doors to audiovisual links as a means of participating in criminal hearings (art. 7 Law Decree n. 306 of 8 June 1992, converted into Law n. 356 of 7 August 1992). That was a dramatic year for Italy: two of the most famous anti-Mafia magistrates (Giovanni Falcone and Paolo Borsellino) were assassinated by the criminal organization they were investigating. In response to these tragic events, the legislator introduced numerous measures, both substantive and procedural, to strengthen the fight against organised crime. One of these measures was the introduction of the first case of “remote examination” (esame a distanza) of witnesses³. In particular, under (the early version of) art. 147-bis CCP Implementing Provisions (from here on CCP imp. prov.) it was provided that testimony of collaborators of justice⁴ could be taken remotely, provided that the technological facilities were available. The purpose of this provision was to protect these people – who were often the target of deadly attacks, especially in those years – by avoiding their presence in the courtroom and by keeping the remote location secret⁵.

A further step forward was taken in 1998 (Law 7 January 1998 n. 11), when art. 147-bis CCP imp. prov. was broadened in scope⁶ and another application of videoconferencing was regulated: “remote participation” (partecipazione a distanza) in organised crime trials⁷ for defendants serving a custodial sentence or in pre-trial detention, in the event of serious threats to security or the complexity of the trial (with the exception of dangerous inmates, who must in any case participate remotely). The rationale in this case was to avoid the transfer of these persons from one prison to another (in order to allow them to attend the numerous trials in which they were involved as defendants), mainly in order to prevent the possibility of contacts between the members of the criminal association (art. 146-bis CCP imp. prov.)⁸.

These early implementations of remote justice were conceived as special measures to be adopted for security reasons, typically in criminal proceedings against organised crime. They were also designed to be in force for a limited period of time and not as a permanent feature of procedural law. For these reasons, the response of the majority of scholars has not been one of total rejection. Although the detrimental effects on the rights of the defence and on the adversarial model – particularly in terms of the reduced fluidity and effectiveness of cross-examination, and the greater difficulty for the remotely connected defendant to follow what happens in the courtroom and to consult his or her lawyer in confidence – were not ignored, and indeed were clearly highlighted, the rules on video-links were essentially accepted as the outcome of a fair balancing between the protection of fundamental rights and the public interest⁹.

The Constitutional Court has also given the green light. In 1999 it ruled that the use of video-links as an alternative means of participating in court hearings is in line with the rights of the defence (art. 24 Cost.), in so far as the technology guarantees effective and concrete participation on the part of the accused and confidential communication with defence counsel¹⁰. In this perspective, technical aspects have played a significant role in the recognition of the constitutional legitimacy of art. 146-bis CCP imp. prov. In particular, the fact that the provision required a two-way (bidirectional) link capable of guaranteeing mutual visibility between the persons present in the courtroom and those – the defendants – at the remote location has been positively highlighted.

The effect of the decision of the Constitutional Court, together with the substantial approval by the European Convention of Human Rights¹¹ and the reduction in the costs of IT equipment led to the conversion of the cases of remote justice from temporary to permanent solutions (Law of 23 December 2002 n. 279). Moreover, in the following years the scope of art. 146-bis and 147-bis CCP imp. prov. experienced a steady growth.

In 2010 a new case of “remote examination” was introduced for undercover agents (art. 147-bis co. 3 let. c-bis CCP imp. prov.): unless their presence in the courtroom is considered absolutely necessary by the judge, they are examined remotely and their face is shaded¹².

Then in 2017 an important change to remote participation’s scheme¹³. By virtue of Law 23 June 2017 n. 103 the use of video-links, in case of security needs and great complexity of the trial, has become possible also in criminal proceedings other than those against organised crime and regardless of the fact that the defendant is in vinculis or not (art. 146-bis co. 1-quater CCP imp. prov.). Furthermore, it has been provided that persons detained for offences related to organised crime and defendants benefiting from protection programs (id est collaborators of justice) shall always participate in their proceedings remotely, the only exception being if their physical presence at the hearing is deemed necessary by the judge (art. 146-bis co. 1, 1-bis and 1-ter CCP imp. prov.)¹⁴.

The remarkable exstension of participation through videoconferencing has been accompanied by a new approach to it. The fact that the use of audiovisual links has become the rule (rather than the exception) for some categories of persons¹⁵, and is now possible in all criminal proceedings provided, inter alia, that the trial is complex, has altered the original rationale for the provision: not only the needs of public safety but also efficiency justify the sacrifice of the physical presence of the accused. This in turn reflects the idea that, if supported by appropriate technology, virtual presence can be a perfect substitute for physical presence.

The new regulation and its conceptual premises have caused a stir among scholars. A wave of polemical voices has filled the pages of law journals.

The majority view has always been (ant still is) that virtual presence, even when supported by the best technology, cannot be equated with physical presence¹⁶. This is because, when the accused is behind the screen, the exercise of the rights and entitlements is far from ideal. This is not only because of the less fluid and rapid communication with the lawyer standing elsewhere, but also because of the (far from insignificant) risk that less care and attention will paid by the judge to what the defendant says, does and asks, with the effect of weakening the impact of self-defence. On a different level, participation by videoconference has a negative impact on the adversarial model of criminal proceedings, in that the physical distance makes cross-examination less sharp and “biting”¹⁷ - it ends up resembling an interview rather than a proper examination with adverse effects on the ability of such a method to expose and discourage lies and fabrications¹⁸. Immediacy and orality also seem to be curtailed, even where the most sophisticated software and instruments are used. As has been noted, since it is extremely difficult, if not even impossible in videoconferencing looking at both the camera lens and the image of other participants at the same time, this would compromise the impression of eye contact¹⁹.

If all this is true - this is the conclusion of the reasoning - it is highly questionable whether the remarkable expansion of participation by videoconference and, in particular, its transformation from a solution to be enforced when necessary to protect sources of testimony or to prevent the planning and commission of crimes by members of dangerous criminal associations to an option in the service of the efficiency of the criminal justice system is in conformity with the Constitution, in particular with art. 24 Cost. which declares the inviolability of the right of defense, and art. 111 co. 4 Cost., according to which the evidence in criminal proceedings must be gathered through the cross-examination in accordance with the adversarial model²⁰. The guarantee of a reasonable duration of the trial is not a legitimate objective for the use of audiovisual technologies, since efficiency cannot be pursued at the expense of fundamental rights - quite the opposite, an efficient criminal proceedings assumes as its premises the acknowledgement of guarantees²¹.

The suspicions of constitutional illegitimacy raised by scholars have so far been neither confirmed nor rejected by the Constitutional Court so far. Meanwhile exceptional circumstances have fostered a huge resorting to remote justice, like never before.

3. Anti-COVID 19 legislation

The tendency to employ audiovisual links as a substitute for physical presence of the persons involved in the criminal proceedings – not only witnesses and defendants but also other parties and the judicial authority – hit a peak after the outbreak of the COVID-19 pandemic²².

In order to avoid the paralysis of judicial activities during the toughest phases of contagion, the legislator has relied heavily on remote justice²³. The regulatory interventions that took place between 2020 and 2022 were many and fast-paced. They followed a fluctuating trend, alternating pushes and backs up in line with the various phases of worsening and easing of the contagion in Italy²⁴.

The most innovative development was the decision to implement something close to the “virtual hearing” model, i.e. a hearing where all participants are outside the courtroom. The discrepancy with the model depended on the exception concerning the judge assistant who must be present in the courtroom in every case in order to fulfil his reporting duties.

It represented a significant step forward: under the anti-COVID 19 regulation video-links moved from being an option designed for selected people or specific evidentiary acts to a generalised and overarching solution covering the entire trial and affecting all those involved in it with the effect of making the proceedings a sum of virtual connections. This has been described as a form of «dematerialisation» of the criminal proceedings²⁵.

This remarkable progression was made under the pressure and urgency imposed by the spreading of the pandemic and with a short time horizon, in the sense that the solutions adopted were clearly seen as temporary.

This has had an impact on the way the legislator has worked. Scarce attention was paid to the rule of law (art. 111 co. 1 Cost.). In this sense, it has been highlighted the absence of a legislative regulation on the technical aspects of the virtual hearing (operating system, connection mode, etc.) and the decision to give the Director of the information technology services in the field of criminal justice the authority and capacity to determine these essential aspects ²⁶. On a differen note, it was noted that the chosen IT platforms (Microsoft Teams and Skype for business) were structured in such a way that did not guarantee the openness of the trial since they were accessible by a limited number of people and only by invitation²⁷, which had a negative impact on the principle of publicity, which is an expression of the principle of popular sovereignty (art. 1 Cost.) and one of the ways in which the participation of the people in the administration of justice is fulfilled (art. 102 co. 3 Cost.).

However, it was another aspect that attracted the strongest criticism. Initially the “quasi-virtual hearing” model was also to be applied to the sensitive phases of the trial namely the gathering of evidence and the closing statements of the parties. But due to the strong disapproval of scholars and lawyers’ associations the rule was soon abolished.

The criticism surrounding the perspective of an entire evidence-taking procedure carried out remotely called (and calls) into question art. 111 co. 4 Cost., the constitutional provision according to which evidence in criminal proceedings must be gathered through the cross-examination in accordance with the adversarial model. As already mentioned²⁸, the main opinion in the Italian literature is that confrontation, when carried out remotely, loses its strength and becomes something different from what is prescribed at the constitutional level. This means that audiovisual links are lawfully adopted only if one of the exceptions allowing a departure from the confrontation principle established by art. 111 co. 5 Cost. is met (consent, misconduct, impossibility of carrying out face-to-face confrontation)²⁹. At the time, the legislator did not follow this path (at least not immediately and not in a consistent and systematic way) and the proposal of an online evidence-taking procedure was strongly opposed.

With the Cartabia reform things turned out differently, as we will see in a moment.

4. Current setting: cases

We are now back to the starting point namely the Legislative Decree no. 150 of 2022 which is the latest piece in the legislative puzzle concerning remote justice. As already mentioned, the assumption underlying this piece of legislation is one of deep trust in technology and its ability to achieve the goals of the reform – making the proceedings faster and more efficient – without prejudice for defence rights and the general principles of criminal proceedings. In this perspective, the proposition was to provide a solid and comprehensive basis for the use of audiovisual links in order to make it a stable and secure (in terms of guarantees) mode of participation in the proceedings, also in light of the experience gained during the pandemic.

The legislator decided to work “by addition”. Basically the old cases provided for by art. 146-bis and 147-bis CCP imp. prov. have been retained and many new ones have been added. In this respect, the articulated framework resulting from the juxtaposition between pre-existent and new provisions can be examined from two different perspectives: one focused on the acts and hearings included within the scope of videoconferencing (objective perspective) and another one that looks at the subjects whose participation in the proceedings can be supported by technological facilities (subjective perspective).

From the first point of view, it can be said that the use of audiovisual links has no limits today, as it is an option not only at the trial phase, but also – at the request of the person concerned – at the preliminary stage and within the framework of precautionary measures’ procedures (re-examination procedure for orders directing a coercive measure according to art. 309 CCP, confirmation hearings in case of arrest or temporary detention pursuant to art. 391 CCP). It also covers both hearings (in whole or in part) and individual acts (questioning of the suspected person, non-repeatable technical ascertainments etc.).

The choice to apply the remote justice paradigm also to the preliminary phase is, on the whole, commendable in the sense that it allows a concrete saving of time and resources without having a significant negative impact on guarantees. However, there are two options that seem to be controversial. The first concerns non-repeatable technical ascertainments. If remote participation appears to be perfectly suitable for preliminary activities, such as the appointment of experts, the same cannot be said for the technical assessment itself, which normally consists of complex activities and procedures³⁰. The case of confirmation hearings following arrest or temporary detention can also be criticised. In this respect, it should be stressed that, even if the judicial control of the measure does not explicitly include an assessment of the detained person’s state of health, these are aspects that should nevertheless be taken into account, given the particular vulnerability of the person concerned³¹. After all, the evocative phrase used to refer to the need for judicial control of deprivation of liberty measures – habeas corpus – suggests a physical dimension of such an assessment – a physical dimension that is inevitably cut off by video-links³².

As for the trial phase, the rule contained in the new co. 2-bis of art. 496 CCP represents a step forward as compared to the previous regime (including pandemic legislation³³). It provides that, upon consent of the parties, the entire evidence-taking procedure may be carried out remotely.

Turning to the second perspective, there is also a broad and permissive approach at the subjective level. Under the new legislation, all private parties, legal representatives and sources of testimonial evidence (lay persons, experts, co-accused persons etc.) can participate in acts and hearings via audiovisual links. Only the judge and the public prosecutor are required to be physically present in court³⁴. It can be said that the legislator decided to maintain something in between a virtual and a traditional – physical – hearing: a phygital hearing³⁵.

Overall, the new scenarios are remarkable. The combination of innovations occurred at the objective and subjective levels gives us the image of an institution that is deeply and stably rooted in the system.

5. … and mode of videocoferencing

The wide recognition of videoconferencing and the aim of giving it a stable and rational allocation within the system can also be inferred from the introduction of a general and comprehensive regulation on the technical aspects of the use of video links and the range of guarantees to be recognised (art. 133-ter CCP).

Firstly, it is stated that, under the penalty of nullity, videoconferencing facilities must ensure «contextual, effective and reciprocal» visibility and audibility between those present in the courtroom and those connected from remote locations, in order to guarantee the right to confrontation and an effective participation in the act or hearing (co. 3).

As far remote locations are concerned, there is a fundamental distinction to be made: people facing custodial sentence or pre-trial detention participate from the place of detention, whereas people not subject to restrictions on their personal liberty participate from a judicial office (or police office) designated by the court, subject to verification of the availability of the necessary technical equipment (co. 4 and 5). In the latter case, the court may also authorise the connection from another place, provided that the parties have been heard (co. 6). Special rules apply to lawyers who may connect from their offices or any other adequate place, unless they prefer to be with the person they are assisting. In any event, the right to confidential communication between lawyers and clients is guaranteed (co 7).

An assistant to the judge or the public prosecutor or a police officer must be present at the place where the persons participating to the act or hearing by remote access are located in order to certify and report on the regularity of the procedure and the absence of obstacles to the excercise of rights (co. 8). It is also prescribed that the Ministry of Justice shall ensure the security and integrity of the transmission of data between the courtroom and the remote locations (art. 147 quater CCP imp. prov.).

In case of public hearing, the court ensures that what happens in the remote location can be seen and heard not only by the parties and the judicial authority but also by the public.

The influence of the constitutional jurisprudence (judgement no. 342 of 1999) and also of the Guidelines on videoconferencing in judicial proceedings delivered in 2021 by the European Commission for the Efficiency of Justice (CEPEJ) can be seen behind this articulated set of rules. Both convey the idea that the quality, integrity and security of technological facilities play an essential role in guaranteeing the enjoyment of rights. With regard to these aspects, the introduction of a nullity (of the decree authorizing the use of video links) in the event that the technological equipment does not guarantee effective participation in the act or hearing, and the attention paid to the need for security and integrity of the data transmitted over the links deserve particular recognition. On the other hand, more could have been done with regard to the description of the type, number and direction of the cameras, which are aspects of paramount importance in order to guarantee the realism of remote participation and the effective excercise of rights³⁶.

6. Due process by remote: where are we?

Despite the faith in technology on which the broadening of remote justice is based, the new legislation does not support the idea that videoconferencing is perfectly comparable to the experience of being present. This is clear from the fact that, in all the cases recently introduced, in order for remote participation to be authorised, it is necessary for the persons concerned to express their will and for all the parties involved to agree when the use of audiovisual links relates to the taking of evidence (at the preliminary hearing or at trial).

Such a requirement reflects the view, shared by the majority of scholars³⁷, that virtual participation is not the same as in-person participation, that cross-examination is somewhat different when parties and witnesses are not face-to-face and, more generally, that justice is better served when litigants gather in the same place – a public physical space where everyone accommodated can look each other in the eyes.

Against this background, consent plays a key role in the new legal framework for remote justice, as already mentioned. With the exception of cases where participation by videoconference is based on art. 146-bis and 147-bis CCP imp. prov., the authorisation of audiovisual links depends on the expression of the persons concerned. Such an expression of will is essential in order to respect the constitutional guarantees. By requesting or accepting to participate in the act or hearing by videoconference the parties, and in particular the defendant, freely waive that part of the right of defence which is impeded by the virtual connection without prejudice to art. 24 Cost. Moreover, the consent of the defendant is one of the conditions under which the constitutional rule that the the evidence-taking procedure must be adversarial may be derogated from (art. 111 co. 5 Cost.).

Is the overall picture satisfactory? Does it dispel any doubts of constitutional illegitimacy? Leaving aside the opinion that the extent of the dematerialization of judicial activities achieved by the “Cartabia reform” is such that the new virtual proceedings is so different from the traditional and constitutionally-driven criminal process that it cannot be considered constitutional despite the introduction of the consent clause³⁸, there is room for doubt that the legislator has achieved a satisfactory balance between efficiency and guarantees. If we look at the way in which consent is obtained, we can see that little or no attention is paid to essential aspects: is the consent to be expressed explicitly or implicitly? Is it a personal or a technical choice, in the sense that it can be validly expressed by the lawyer without special authorisation (procura speciale) from the client? Is the declaration of will revocable?

The vagueness of the law makes it difficult to find sure answers to these questions even though they concern delicate aspects. Given the structural asymmetry of powers between the State and the individual in the realm of criminal proceedings, provisions on the waiver of guarantees may in practice encourage haggling and bargaining to the detriment of the “weak part” in the proceedings – the accused – who may be tempted to give up his rights in order to obtain a “reward”³⁹. We see this, for example, in the area of agreements on the use of evidence gathered during preliminary investigation for the establishment of facts. The judge is more inclined to be lenient and to recognise mitigating circumstances if the defendant agrees to the use of such acts. However, it is clear that behind this approach there is a recognition on the part of the system that consent is not a “neutral” choice as it should be⁴⁰.

Against this background, it is important to minimise the risk of expressions of will which are not personal, knowing and intelligent. Although the structural and unavoidable asymmetry of powers between the State and the individual will always make the criminal proceedings a slippery slope for negotiation – in the field of remote justice as well as in any other field where it is allowed – strict rules on the waiver of rights could certainly help to prevent injustice and abuse.

7. Conclusive remarks: the importance to take the consent seriously

The scenario described above invites the elaboration of a solid and clear scheme for the interpretation of the “consent clause” provided for in each of the new rules on participation in acts and hearings by videoconference. Given the importance of the consent clause for the respect of constitutional guarantees (art. 24 and 111 Cost.), a strong commitment to take it seriously would be a (small but) decisive step to open up the perspective of remote justice as a technological switch capable to pursue efficiency without (undue) prejudice to fundamental rights.

This means, on the one hand, that an explicit expression of will should always be required, even in cases where the implementation of audiovisual links is not subject to a specific request on the part of the persons concerned but the wording of the law refers generally to the “consent” of these persons⁴¹.

Secondly, the choice should not be considered as a “technical” one, in order to avoid the risk that the decision to accept the participation by videoconference could be driven by the personal interest of the lawyer (who may be tempted to give the consent in order to win the good will of the judge also with regard to other proceedings) or by his/her negligence⁴².

Thirdly, revocation of consent should be allowed. This is particularly important where the waiver does not relate to a single act or examination, but potentially to the entire evidence-taking procedure (art. 496 co. 2-bis CCP). The parties should be given the opportunity to reconsider their decision at any time during the trial, if circumstances so warrant.

• Declaration of originality: the author assures that the text here published has not been previously published in any other resource and that future republication will only take place with the express indication of the reference of this original publication; he also attests that there is no third party plagiarism or self-plagiarism.

How to cite (ABNT Brazil):

• BIRAL, Marianna. The Italian Route towards Digitalisation of Criminal Proceedings. The Latest Developments in the Field of Remote Justice. Revista Brasileira de Direito Processual Penal, vol. 10, n. 2, e1007, mai./ago. 2024. https://doi.org/10.22197/rbdpp.v10i2.1007

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Edited by

Editorial team

• Editor-in-chief: 1 (VGV)

• Associated-editor: 1 (SL)

• Reviewers: 5

Publication Dates

• Publication in this collection
  09 Sept 2024
• Date of issue
  2024

History

• Received
  09 Apr 2024
• Reviewed
  10 Apr 2024
• Reviewed
  18 Apr 2024
• Reviewed
  28 Apr 2024
• Reviewed
  28 Apr 2024
• Reviewed
  01 May 2024
• Reviewed
  02 May 2024
• Reviewed
  11 May 2024
• Corrected
  27 May 2024
• Accepted
  29 May 2024