The coronavirus pandemic is putting Article 111 of the Italian Constitution to the test, according to which "Jurisdiction is implemented through due process, regulated by law ...", as well as Article 27 of the Constitution, according to which penalties must be respectful of the dignity of the person, starting with the fundamental right to health. However, nowadays the right to health, both for prisoners and for those who work in prisons is being compromised by overcrowding.

Italian government intervenes to limit administration of justice

The administration of justice has been altered to contain the spread of the virus. For example, public access to court registries and participation in court hearings has been limited. Such limitations must be proportionate, temporary, and should effectively contribute to preventing the spread of the virus. Measures in place should not have oppressively negative effects on defendants, the right to a fair trial (to be held in full adversarial proceedings), the proper functioning of justice, or, more generally, on citizens struggling with justice.

Since the pandemic started, the Italian government has intervened in the area of justice several times. These interventions need to be brought to light, stressing the dangers related to the use of emergency legal decrees and the increase in the issuance of service orders, ministerial circulars and local protocols. Over time these measures could lead to progressive limitations on access to constitutional guarantees afforded to defendants and convicted people, as well as reduced access for citizens seeking access to justice.

Decree no. 18 of 17 March 2020 was issued to to regulate the administration of justice during the emergency. Article 83 of this decree introduced new urgent measures to counter the virus and contain its effects in the field of civil, criminal, tax and military justice. Some of the changes it introduced are dubious from a constitutional point of view.

Criminal trials postponed but deportation procedures continue

Specifically, Article 83 of the decree provided that from 9 March to 15 April 2020, hearings in civil and criminal proceedings pending at all judicial offices would be automatically postponed (except for mandatory exceptions). In addition, during the same period, the deadlines for the completion of any legal act (including appeals) in civil and criminal proceedings were suspended. Similarly, Article 84 of the decree provides for the postponement of hearings and the suspension of deadlines in matters of administrative justice.

There are question as to why certain exceptions to these postponements were made, including, for example, hearings to confirm administrative detention measures of non-EU citizens. This means that such hearings are still taking place, even though it is impossible to expel people and there is elevated risk of contagion in administrative detention centres. Further rules limit the publicity of hearings and the procedural parties’ participation in them, in potential violation of the provisions of Article 111 of the Constitution and Article 6 of the European Convention on Human Rights.

The decree also established that all public hearings in criminal and civil matters should be held in camera. This is a rule dictated by common sense and does not affect the constitutional guarantees of the citizen, provided that it is not applied for a long period of time. Similarly, it seems legitimate that defendants' participation be ensured, where possible, by means of video conferences or with remote connections.

Defendants and lawyers must have the same access to each other and changes must be temporary

The Criminal Chambers fear that regulatory practices that underestimate the importance of the presence of the parties in court will be introduced and become the norm. When the decree is passed into law (or, when the implementing protocols are adopted) it must be made clear that remote participation in hearings that cannot be postponed must be strictly temporary. In using these measures, it should be carefully assessed, on a case-by-case basis, whether video conference facilities provide adequate guarantees for the defendant's right to a fair trial. For example, it is fundamental to ensure that defendants can have confidential conversations with their defence counsel, which will not always be possible when the defendant and his or her lawyer cannot meet in person.

Amendments to the regulation of judicial notices, also provided for in the decree, also put people's right to a fair trial at risk. The decree provides for the use of one-way telematic systems that allowing judicial offices to issue any type of notice "towards" lawyers. However, lawyers are not allowed to benefit from such a system. The Observatory of the Criminal Chambers has already denounced examples, of which there have been many, of lawyers being prevented from issue telematic judicial notices, as well as of problems related to the notification of pre-trial detention orders.

Detainees should be allowed out for health reasons

Further attention should be paid to provisions in the decree which allow the supervisory judiciary to suspend the granting of premium permits for release from the detention and the semi-liberty regime. This provision is inconsistent with constitutional principles and in particular with Article 27 of the Constitution, which implicitly protects the health of the inmate, who must also be allowed to carry out quarantine themselves, which for obvious reasons, cannot be guaranteed in prisons.

Finally, the rules providing for an unjustified suspension of the statute of limitations are of dubious constitutional legitimacy, since there is no evident link between these rules and protection of community health and heavily affect the status of the defendants.

Ultimately, especially for criminal proceedings, it must be recognised that some of these provisions have a significant impact on the right to a fair trial, such as the reasonable length of the proceedings, access to a lawyer, effective participation in the proceedings, public knowledge of the hearing, the right to be present at the hearing, the preparation of the defence, and the right to a prompt decision on the legitimacy of pre-trial detention.