To deal with the Covid-19 emergency, the Government has foreseen, until 31 July 2020, the possibility of celebrating criminal trials remotely, through digital platforms that guarantee effective discussion between the parties. During the conversion of the decree-law it is excluded that proceeding remotely to carry out the hearing investigation, unless the parties agree. The Government's initiative is an indication of a mentality.
Accustomed to living obsessively immersed in social media, it is difficult to make people understand how insidious this story is: from many quarters its application tout court is expected after the end of the pandemic, definitively affecting the exercise of (constitutional) rights in the exercise of jurisdiction.
The shield raised by lawyers (but not only) should not be understood as a symptom of a priori aversion to modernity, but as a dutiful alarm to avert the risk that the move to digital will produce critical issues due to the depersonalization of the hearing. Another crystallization of the distortions of the judicial machine, which more and more frequently strike the process like accidents, relegating it to the limbo of inconclusiveness. This happens for trials with defendants on the loose by now definitively consigned to the prescription or, following the entry into force of the reform of the latter, projected into an indefinite future.
If it is now clear to everyone that remote schooling deprives children of the necessary and unavoidable relational training typical of the school environment, there is no need to go on and on to explain that the celebration of the process demands a co-orality of the contradictory parties that cannot be replicated remotely except in exceptional cases, codified.
In other words, the criminal trial - in which witnesses, consultants, policemen, victims and defendants parade before the judge in public hearing - matured over centuries of doctrinal elaboration and legislation science, cannot be remotely replicated. The protagonists of the process they cannot be transformed into metallic identities, anodynes, why they would lose the attitude to be part of it, that is that ability to affect the qualified perception of the judge, which guides him in the formation of conviction.
There is fear of transforming the emergency into regulation, presenting the equation, apparently suggestive of digital process equals process efficiency, which in reality is nothing more than a new oxymoron of justice. To imagine that celebrating trials remotely solves the dysfunctions of justice seems really simplistic.
If we really intend to extend the emergency regime to post-Covid we would find ourselves facing theyet another uncogitated, extemporaneous reform, such as the one that ordered the blocking of the prescription with the issuance of the first instance sentence. Reforms that are based on the singular assumption that eliminating problems (in that case the length of the processes) is equivalent to solving them. In short, the process thus manipulated according to political contingency does not proceed.
A healthy use of information technology can certainly improve the process, but it does not solve the underlying problems. We see.
We need to reverse the perspective of the initial legislative intervention (digital = efficiency) and ask ourselves what digital can do to best support the exercise of jurisdiction.
I would distinguish the moments of the administration of justice from the jurisdiction. Today the second is weighed down, if not hindered, by the first. Technology must intervene to improve the machine that revolves around the process, to free oneself from bureaucratic constraints and proceed with reasonable speed.
For example: imagine a digital platform that puts the District Attorney's Office online with all the GIP Offices of the district thus distributing, among judges with the same degree of professionalism, the adoption of measures that do not require the intervention of the defense (filings against unknown persons, authorizations, interceptions) and relieving the burden of the GIP offices of the capitals; allow criminal lawyers an equal interlocution with the Courts, as in the civil for some time, by pec.
Moreover, the central nucleus of the dysfunctions that affect the process is in the moment of jurisdiction. It is above all related to the unceasing change in the person of the judge for a series of reasons, all formally impeccable. But it is an eventuality which, as is known, imposes, and it could not be otherwise (!), that the process starts all over againunless agreed by the parties.
Also here digital can be of help to avoid the replacement of the judging magistrate, which especially in complex trials, causes serious damage to the cognitive heritage of the hearing investigation, i.e. that set of information of a perceptive/intuitive nature (for example: credibility of a witness) which constitutes a fundamental and irreplaceable element in the process of forming conviction of the judge. A peculiarity that would vanish with the move to digital precisely because it is based on first-person, direct, physical perceptions.
The magistrate is transferred for career advancements that suddenly lead to the trial, for transfer to disadvantaged offices or their abandonment according to career needs, for leaving the role, following the assignment of consultants to parliamentary commissions, the appointment as commissioner of the judiciary competition, to the assignment to the training school. All occurrences which, as regulated or implemented today, produce a serious failure of the process, I would say of the jurisdiction, therefore, also in the civil field.
And then, prepare a digital platform centered on the principle of the prevalence of the celebration of ongoing trials, which combines, at least in the District context, the rotation of magistrates with the progress of trials.
Yet: the lessons of the magistracy school can be done online thus allowing the magistrate to remain on site and not move to the school; consultancy to parliamentary committees they can go online; the correction of the written tasks of the judiciary competition, and so on.
Therefore the digital, rather than undermining the constitutional sanctity of the process (of the judgment), comes into being tool used by the magistrate to perform remotely those other roles that are not incompatible with conducting or participating in ongoing trials, without prejudice to the inescapable pre-eminence of the celebration of trials; that is, that justice, as a whole, works.
Here, this is the digital that serves, in the literal sense, the jurisdiction; what strengthens the celebration of the process in the courts, keeping it immune from bureaucratic issues who are chaining him today. Instead, to ensure the continuity of the judging function in the person of the judge who is invested with it, much more complicated interventions than the use of digital technology are required.
