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(This article was written on 1st May 2020. Please note that due to the changing nature of the subject/current climate, some details may have changed)

The judicial system has grappled with a need to preserve its renowned and traditional way of working, whilst balancing the mounting pressure from society to keep up with changing attitudes and technological advances.

COVID-19 has required the judicial system to be forward thinking in order to keep courts open. All this whilst maintaining restrictive measures that are needed to ensure the safety of everyone involved in the judicial process.

With Italy being one of the hardest hit countries in Europe so far, the Italian court system was one of the first part of the country to implement distancing measures. It was later shut down, as the COVID-19 healthcare crisis escalated.

In light of the current situation we spoke with Valeria Logrillo, a solicitor in Milan, to get valuable insight on the current situation. Valeria specialises in several aspects of criminal law - from corporate criminal offences and misconduct in public office, to bankruptcy and financial crime. She has shared her experience of accessing the courts in Italy during these difficult times.

Many countries currently affected by the COVID crisis have had to adapt and digitise their courts to ensure access to justice. Italy was one step ahead of many countries as the digitisation of the courts started back in 2017.

Since Italy began its digitisation journey, what have been the main benefits and challenges?

When it comes to the digitisation of courts, it is necessary to make a distinction between the civil and administrative process and the criminal process.

The civil and administrative process had already been pressing ahead with digitising the courts, even before 2017. They had created dedicated platforms that allowed the filing of procedural documents. The criminal courts, however, had seen very limited progress in its digitisation – mostly limited to very particular and specific cases. As a criminal lawyer, my experience using the technology is more limited.

For example, in Italy, videoconferencing in criminal courts has been in use for some time. It allows prisoners currently in jail as a result of organised crime and terrorism offences to participate. In other cases, it was used to enable people protected by special measures to participate in the debate, whilst ensuring their protection.

If we are looking at the digitisation of specific acts and platforms, Italy is still far behind.

So far, the only form of actual digitisation is the ability to communicate and file specified documents with the court by authorised e-mail (PEC) in proceedings. However this is still limited only to certain documents as directed by the court. For example, the court can notify an act to a defendant, however the lawyer cannot submit a witness list to the court.

The digitisation of courts would mean keeping up with the changes which would simplify court activities that often take time and money and have a positive impact the environment, such as reducing paper use. However, the real challenge is to create a system that allows the courts to digitise while remaining compliant with the founding principles of the rule of law, such as the right to be heard, equality under the law and the oral tradition.

Do you think the current crisis might change the way digital technology is perceived by the judicial system in the future?

This unprecedented period has certainly changed the we way work in several ways.

Smart working and the process of digitisation has undisputedly changed the approach to work, with undeniable success, up to now. However, The administration of justice has not followed suit. It was not ready to face the challenge. Hearings have been postponed and the deadlines for filing processes suspended. This has created a feeling of paralysis, rather than innovation.

Could remote court sessions help speed up court cases?

The Italian justice system has a reputation for being excessively slow. This issue has been brought to the attention of European courts. These courts have convicted Italy on numerous occasions for delays. Steps need to be taken to speed up the system. The question is how this is going to be done. The methods envisaged in this emergency phase are not only unsuitable and, by their very nature, temporary but also dangerous for the justice system. The reforms are not coming from the institutions that should be introducing them.

To speed up the process and allow technological advancements to drive the digitisation process, it is necessary to reform the procedures and create measures that respect the constitutional principles of our system. This means not having to rely on the emergency legislation or, once the normality has returned, to permit a temporary measure to become a long-term solution.

This is not to say we should oppose digitisation, but rather that we should implement it in a careful way.

There is a view that remote court sessions raise questions around the privacy and the protection of sensitive data during the trial. What’s your view?

The protection of sensitive data during remote sessions is a delicate matter. The union which represents the criminal chambers (Unione delle Camere penali) has ensured it is already on the Ombudsman’s radar.

However, I don't think this is the main problem. Any carefully implemented digital platform is safer than having folders stacked in the corridors of public offices. This situation makes sensitive data easily accessible to malicious third parties. I am not so worried about the acquisition of data by an IT company. GDPR offers safeguards. It is nonetheless important that any workstation used during the trial is correctly monitored and 'registered' to ensure that only authorised people can access the information.

Which types of court/trials are being used for remote court sessions?

There is currently great confusion but generally two types of trials are taking place online.

The first type of remote hearing is related to criminal cases. These hearings involve any party who is required to participate in the trial ie parties, judge, judicial police, interpreters, consultants and experts. These remote hearings have been introduced following a government provision and will be in force until 30 June 2020. There is also a second type of hearing which is organised by each court on specific, court issued measures.

Exceptionally, from 15th April, administrative justice trials are also taking place remotely. Lawyers in this instance are not permitted to connect remotely. This creates a very singular case dictated by the emergency, where lawyers cannot participate and therefore clashing with founding principles of the process.

How does a remote court session work and how is it different to a physical court session?

The main hearings that are taking place remotely are those relating to interrogation for cases where a person has been taken into custody as a precautionary measure (custodial precautionary measures).

In these cases, each court has provided and developed its own protocols and in agreement with the judges, they have made specific indications. For example, Microsoft Teams is the most used platform, as it is officially provided and recognised by the Italian Ministry of Justice. A lawyer can join the hearing by meeting the client wherever they are based eg prison, home, or they can join from a workstation in the court or from their law firm.

The lawyer must identify the client. If the client and the lawyer are not in the same place, the judicial police will identify the defendant. The Chancery, who’s also connected, writes down the record of the session. All documents are shared either by email or directly on the meeting platform so they can be used during the hearing. The right to speak follows the same rules as a normal offline session.

What can others learn from Italy’s experience?

In an era where the United Kingdom ran its first live trial on YouTube and where the justice system has found itself with no option but to continue to operate through a computer.

We want to share our experiences and help others understand the pros and cons of using these systems to finally implement methods that have proved successful. But we also need to be aware of the limits that each State or system is facing. It is important to analyse the underlying problem at the core of these changes. We need to respect the founding principles of our own legal systems, while maintaining our belief that we can move towards a new form of supranational cooperation.