L’avvocato Guido Piazzoni illustra le criticità del sistema giustizia durante il lockdown al sito giuridico russo www.advstreet.ru
L’avv. Guido Piazzoni ha illustrato al sito di approfondimenti giuridico russo www.advstreet.ru i diversi provvedimenti adottati dal governo per far fronte al diffondersi del Covid-19 inerenti all’andamento della giustizia e le criticità generati dagli stessi. In particolare, l’avv. Piazzoni ha illustrato gli effetti sui procedimenti civili, sulle udienze civili e penali, e la situazione nelle carceri.
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While I am writing, in Italy, we reached 165.155 confirmed cases of people with Covid-19, of which 21.645 deceased, 38.092 recovered, 105.418 currently infected patients. Italy is one of the first affected countries around the world, and the third overall after the USA and Spain.
On February 21st, in the northern part of Italy, close by Milan, the authorities reported many cases of people affected by the Covid-19. Consequently, the government adopted the first of many decrees to contain and deal with the virus: on February 23rd, the government adopted the Decree-Law 6/2020 and the consequent Prime Minister Decree, which established a so-called “red zone” in some little towns of this area with hard quarantine regime.
On March 8th, another Prime Minister Decree provided quarantine measures for the Milan Region (Lombardia), the Venice Region (Veneto), and other northern regions. Those same standards were extended to the rest of Italy the following day. From this moment on, throughout the country, it has been possible leaving home to work, do the groceries, do pharmaceutical shopping, and go to the hospital. Most companies started the so-called “smart working”; however, the industries remained open. On March 22nd, another Prime Minister’s Decree established the lockdown of all the industries and the commercial activities considered “non-essential”. Law firms are considered “essential”. On April 11th, the lockdown was extended until the 3rd of May, although some businesses have been permitted to go back to business, such as bookshops and children’s clothes shops.
Since the beginning of the crisis, the government has adopted more than fifteen decrees. The consequence is an inorganic and chaotic normative. The most important decrees concerning lawyers is the Decree-Law 11/2020 of March 8th. The prime Minister’s decrees of March 22nd and April 11th extended the effects of the Decree-Law 11/2020 until the 11th of May.
The Decree-Law 11/2020 established the measures on the Judicial Activities. It was postponed after May 11th, in both civil and criminal trials, deadlines for the deposit of judicial acts and memorials, and judicial hearings. It also gave the possibility to the President of Tribunals and Courts to postpone hearings after May 31st if they think it would be safer in their Tribunal considering the Covid-19 situation in their area. To calculate the deadlines, the decree applies the system typically used in August, when activities of tribunals and courts are suspended for the holidays. Judges decide, according to their calendar, when postponing the judicial hearings. The same decree individuates trials (and their deadlines) that are not suspended. Chiefly:
– Private law hearings concerning minors (adoption, abandoned child); family law (spouse and child support check); urgent procedures about fundamental rights and/or handicap people; expulsion of extra-UE citizens; abortion; health; domestic violence; and any other procedure that if postponed would generate serious injuries to the parties. The parties cannot appeal the decision.
– Criminal hearings concerning validation of arrest; inmate defendants; defendants subjected to prevention measures (alternative to detention); under-age defendants.
When it is possible, these procedures must be done remotely, using Skype or Microsoft teams. That happens in almost all criminal procedures.
This method does not represent a big problem for civil trials that are considered “written procedures,” in which memorials can substitute most of the hearings. Moreover, since 2015 the submissions of applications, memorials, and documents are online. The only problem in these procedures is constituted by hearings when witnesses are questioned; however, at this moment, these hearings have been postponed. We can say that, as far as I can see, judges are postponing most civil hearings, even though they are included in the matters that should not be suspended ex art. 2, com. 1, let. G of the decree. Since the beginning of the crisis, I did not participate to any hearing, even though one of my principal areas of expertise is family and children law, matters included in the “exception” above.
Differently, criminal trials do not have any online procedures and are fundamentally “oral procedures.” That is because is essential the direct perception of what is happening during the hearing room for lawyers to properly defend his/her client. We can imagine how hard is to understand what a judge is thinking during a deposition if it is not possible seeing his/her hands, what he/she is looking at if he/she is listening or not. At the same time, lawyers cannot speak privately during the hearing with his/her client, asking his/her impression about what is happening, and if the information that the prosecutor or other parties are giving is correct.
Moreover, we do not have the technical structure to deal with online trials. The only online trials established by our criminal code concern defendants that cannot leave the prison without the risk of attacks or prison breaks, and in any case, the other parties are in the hearing room in the tribunal. That means that often the connection falls, with the consequence, for example, that a witness has time to think about what to answer, change what he/she wants to say, etc. Subsequently, there is a critical compression of the right of defense, since the lawyer cannot properly exercise his/her duties, affecting his performance with consequences that can be dramatic for the defendant.
Another problem that criminal lawyers are facing is that they cannot visit their clients if they are in prison. The only way to speak with them is online through specific computers that are now available, but which, obviously, are not enough to guarantee all the prisoners to talk with their lawyers. To have an appointment, lawyers must present written requests to be inserted in a long list. They usually achieve to speak with their client after a few weeks (and not always before the judicial hearings).
Another criticality is the situation in the detention centers, more than 207, where currently are imprisoned almost 61.230 people, and where daily, many corrections officers and volunteers work. We must recall that Italian prisons are overcrowded: the structures are thought for 50.000 prisoners (that means that there is an average of 120 prisoners for one hundred places). In one prison in Rome, there are currently 891 people in 500 places. That means that there are two prisoners for each place. For this reason, the European Court of Human Rights condemned different times in Italy for violation of Article 3 of the Convention. As we can imagine, when there is an infection that is spreading around the country, having overcrowded prisons is not a good thing. Since the beginning of March, with different decrees, the ministry of justice tried to deal with the Covid-19 crisis by limiting transfers and visits. In the beginning, prisoners protested for these limitations and the (reasonable) fear of infection, also considering the impossibility of “social distance,” and the cleaning and sanitarian situation in the structures. In 27 prisons there were revolts and protests, often violent, which lead to few deaths, and a massive prison break in the city of Foggia. The police stopped these revolts in two days, but the situation is still critical. We do not know precisely how many prisoners are infected, even though we know that are many, as also doctors who work in prison. A recent report estimates that more than two hundred guards are infected. In few words, the situation is a ticking bomb ready to explode, and, at the moment, we do not see any solution to defuse it.
The government tried to deal with the situation, with the Decree-Law 18/2020 art. 123 and 124. Article 123 establishes that if a prisoner has to stay less than 18 months in prison, he can ask to pass this period in his home (house arrest). That depending on the kind of crime he/she committed. Art. 124 establishes that those that had previous permission to leave temporary the jail can extend it until the 30th of June. However, these measures had a partial effect that absolutely did not resolve the problem.
In this terrible situation for the country, the Lawyer National Council, the Local Lawyer Orders, and the Lawyers associations are doing their best to highlight the risk of violation of rights and to give guidelines to deal with the new measures adopted. In general, we can say that, as the majority of the country, lawyers are responding well to the crisis, respecting, and understanding the limitations. However, that does not mean accepting them without criticism and without trying to bring some improvements. We are living in a never seen situation, and no one knows what is correct, and how much the compression of fundamental (and no fundamental) rights is necessary. What is sure is that the weakest and the poorest became even more vulnerable. A responsible lawyer society must watch over them to guarantee the respect of their rights. I have to say that, as far as I see, I am proud of how the Italian Lawyers are behaving, trying not to leave anyone alone and spreading useful information through civil society.
All of that happens even though there is a lot of concern about the future. We do not know when the work will restart normally, but what is for sure is that we will use online hearings for a long time, even though the majority of us did not experiment with it yet. Additionally, we have to consider that the majority of the Italian lawyers work alone, and the structure of the law firms is not made to deal with the economic crisis that will follow. To deal with the absence of income in this period, the government guaranteed six hundred euros for all the lawyers that gained less than 35.000 euros last year. This kind of measure is more than welcomed; however, it does not resolve the worry about what is going to happen next and if we will be able to deal with it. What is sure is that we will stand for rights until the end.