CMS Expert Guide to Digital Litigation in Italy

In recent years, the Italian legislator has intervened several times to digitalise civil proceeding. In particular:

1. In 2012, Italy launched the Register of certified email addresses (known as “Reginde”), which is managed by the Italian Minister of Justice. This register includes the certified email 1  addresses (i.e. Posta Elettronica Certificata, or PEC) of Italian lawyers, experts and officers of the courts who need to file documents during civil proceedings. The certified email has the same legal value as a registered letter with a return receipt. Consequently, any notification from or to lawyers registered in Reginde can be performed via certified email;
2. The electronic transmissions of all communications (to lawyers, professionals and parties), including judgments, has been mandatory since 2014 before 1st and 2nd instance Courts and since February 2016 before the Supreme Court;
3. Electronic filing of injunctions, pleadings and documents has been mandatory since 2015 before 1st and 2nd instance Courts and since 2023 before the Supreme Court;
4. During the COVID-19 pandemic, the Italian government issued emergency legislation, according to which, as long as the state of emergency persisted hearings must be held remotely (virtually or through the online submission of written notes).

To benefit from EU Next Generation Programme resources, the Italian Parliament in 2021 approved the Piano Nazionale di Ripresa e Resilienza (PNRR), which foresees reforms and investments to be implemented in five years in key sectors, digitalisation included. As a consequence, Italian civil proceeding have been deeply reformed in order to make it last less and achieve more efficiency of the same. Therefore, from January 2023, judges can dispose that hearings are held (i) by means of remote audio-visual connections when the presence of persons other than the attorneys, the parties, the prosecutor and auxiliaries of the judge is not necessary; or (ii) by the file and exchange of written notes. In both cases, parties can ask the judge to hold the hearing in person.

The above shows that the Italian Ministry of Justice has been involved in a wide-ranging incisive action of digitalisation of the civil justice system in order to (i) improve the organisation of justice services; (ii) achieve considerable cost savings; and (iii) allow the exchange of information on cases and judgments to lawyers and private citizens. Such activities have invested whole phases of civil proceedings, including the digitalisation of acts, documents, files, and services.

All services and features are covered by first-level norms and a specific technical regulation. Such rules enable interoperability between authorised users outside the courts (e.g. lawyers, assessors, Public Administrations, citizens, private companies, etc.) and authorised users inside the courts (e.g. judges and clerks) through a high secure infrastructure, which ensures reliability of transmissions, authenticity, integrity, non-repudiation and confidentiality.

Italy has implemented a wide range of digital and technical tools that enable lawyers and courts to shorten the timing of proceedings by facilitating exchanges and communications between lawyers, parties, judges and officers of the Courts.

In particular, the following tools and measures are currently available:

a) Certified registered email

Lawyers, chancelleries and officers of courts are provided with certified registered email, included among the Reginde list mentioned above under Question 1.

Certified emails have the same legal value as a registered letter with acknowledgement of receipt, since to certify transmission and receipt of a certified email message the email manager sends a receipt that constitutes legal proof of the transmission of the message and any attached documentation. Thanks to this tool, any service and notification can be made electronically.

b) Qualified electronic signature (compliant with eIDAS Regulation requirements)

The qualified electronic signature is the result of an IT procedure known as validation, which guarantees the authenticity, integrity and non-rejection of electronic documents. The digital signature allows users to exchange documents online with full legal validity. In order to do so, lawyers, chancelleries and officers of courts are provided with a business key or smart card that enable them to sign deeds and documents by means of a qualified e-signature.

c) Italian e-Justice Portal (“Portale dei Servizi Telematici - PST”)

The Italian Ministry of Justice has developed an e-Portal for the digital exploitation of several chancery services. 

In particular, lawyers, judges and officers of the court, upon previous identification through a smart card, are enabled to access such portals and carry on the following online activities:

• check the status of proceedings;
• access remotely to the cases files;
• download copies of deeds, defences and documents filed by the parties, as well as minutes and other documents filed by the officers of the court; 
• upload defences, pleadings and documents; 
• download decisions of the courts.

d) On-line payment system of court fees

When a party files a proceeding before an Italian court, it is able to pay the court entry fees through the “Pago PA” service, which is an online platform that allows users to make payments towards the public administration.

In addition:

e) Virtual Hearings

Judges can provide for hearings to be held remotely (i.e. by videoconference mode via digital platforms) or by the file and exchange of written notes. In both cases, parties can ask the judge to hold the hearing in person. Many judges allow the hearing to be replaced by an exchange of pleadings between lawyers.Conversely, it is quite uncommon for judges to opt for video-conference hearings. 

As stated under Question 1, the digitalisation process in Italy has gradually progressed.

As of now, the use of tools indicated under Question 2 lit. a., b., c., d. are mandatory in all the proceedings before 1st and 2nd instance of ordinary courts as well as before the Supreme Court of Cassation.

This means that:

a) with regard to services and communication: 

• services of the first deed of a proceeding to the defendant must be made through certified registered, if the defendant is provided with such tool; 
• services to lawyers (included communications from the chancellery) must be made through registered email.

b) brief defences submitted to the courts must be e-signed by the appointed lawyers upon filing.

c) brief defences, pleadings and documents must be filed through the use of the e-Justice Portal. Any submission otherwise performed shall be considered inadmissible.

Regarding lower-value cases, which are remitted to the justice of the peace (i.e. of a value less than EUR 10.000,00 or cases dealing with vehicles circulation) the activities listed above will be mandatory as of July 2023.

In relation to virtual hearings, activities listed under Question 2 lit. e. are merely optional: the judge can dispose that the hearing be held remotely. The parties are also entitled to such a request, but this is not mandatory. 

The Italian civil process can be considered highly digitalised.

Despite a high grade of digitalisation, however, some improvements could be implemented.

As a priority, it would be important to overcome judges' scepticism in allowing hearings to be held virtually. Currently, most judges are inclined to replace hearings with the exchange of written notes between the parties, but (i) still many courts prefer in-person hearings; and (ii) very few judges grant virtual hearings through digital platforms.

The main set of provisions that is relevant for the digitalisation of the justice system is contained in a law dating back to 2005 2   that is an organic body of rules providing for the use of information technology as a privileged tool in all relations between the Italian public administration and citizens.

However, the first rules directly addressing the digitalisation of litigation have been introduced in 2012. Such rules, amending some former rules already in place since 1994, only regulated the possibility for lawyers to serve acts and submissions by means of a certified e-mail. Since then, the use of technology in litigation has progressively expanded to all other aspects and phases of civil proceeding as described under Question 1 and Question 2.

Although our country has been an example of digitalisation in litigation in recent years, in order to be able to access the resources of the National Recovery and Resilience Plan (PNRR), according to an agreement with the European Union, Italy undertook thorough reform of the civil justice system aimed at ensuring a better and more efficient administration of justice through the removal of the administrative, regulatory and procedural obstacles affecting both the economic activities and the quality of services provided to citizens and businesses.

As a result, recent civil justice reform enacted in October 2022 and effective as of 1 March 2023 strengthened the tools already in place for a fully digitalised civil process and definitively incorporated in the Code of Civil Procedure the use of videoconferencing for oral hearings.

Currently, in a context of continuing modernisation of public administration, some specific projects are underway to enhance digitalisation. For example, the Ministry of Justice is targeting the gradual overcoming of certified electronic mail (PEC) as a technology for the transmission of procedural documents in favour of other mechanisms, which at first will complement current technology, giving professionals an alternative, and then will replace it thus overcoming the problems related to the reduced transport capacity of the PEC and those of external infrastructures, over which the contents have been transferred.

The Ministry of Justice, through the General Directorate of Automated Information Systems (DGSIA), carries out constant research and development activities aimed at identifying up-to-date technologies and infrastructures applied to justice in line with the latest developments in the digital sector.

In this way, the Ministry pays special attention to the development of technologies that enable the collection and analysis of judicial data, both for the improvement of judicial services and the allocation of human and material resources.

In this context, one of the main drivers is the implementation of the Justice private Cloud that will have the key task of rationalising and homogenising services by redefining the operation of the network in order to ensure adequate levels of security and greater control over data access in full compliance with current regulations.

Other key targets refer to the adoption of evolved and integrated tools to ensure a unified control of security issues in compliance with the requirements of the standards related to the National Cyber Security Perimeter; the creation of a single document management platform, with guaranteed levels of security and confidentiality of documents, capable of interoperate with the multiplicity of Justice applications; and the continuous simplification of applications for end users to facilitate work processes.

There are currently no rules in place that specifically address the use of AI in litigation.

The research projects already undertaken by the Ministry on the use of AI applied to justice do not aim at realising decision-making processes (e.g. a robot judge) alternative to those based on the autonomy and independence of the human judge as required by the Italian Constitution, but rather aim to expand the tools of knowledge and analysis available to the courts so as to make them authentically aware of their decisions.

This result can be achieved by providing rational tools adaptable to the particularity of each single case for the classification, organisation and use of data that are relevant to the decision; and making available a complete overview of case-law, abstractly referable to the case at hand and based on the automated analysis of the available material in order to increase uniformity of decisions in similar cases.

Models currently under exam are aimed at setting up modalities of use of AI, which, in compliance with the principles adopted by the CEPEJ, may allow (i) the identification of case-law guidelines at individual office, district and national levels; (ii) the critical analysis of case-law in order to prevent the judge from any biases that limit his or her effective independence; and (iii) the development of case-law robustly grounded in the law, court decisions and the factual context referable to the individual case under consideration.

Cybersecurity underpins the numerous projects to fully digitise justice. In this regard, the Ministry of Justice has adopted its own security document called "Security Policies for Justice Information Systems," which is periodically updated. Among other things, this document provides for the adoption of appropriate tools for securitisation through the control of network access and workstations.

The new ways of working adopted to cope with the emergency surrounding the COVID-19 pandemic have forced a review of the security perimeter of the Justice's systems by also extending it to all new stations that operate and will operate remotely. The proposed approach concerns the renovation of building network infrastructure, the acquisition of network equipment adapted to new security measures, network access control with authentication at various levels, the purchase of new devices and the adoption of a range of systems for securing devices.

Security levels of justice information systems will also be raised through collaboration with the Department of Security Information (DIS) at the Prime Minister's Office. In particular, the implementation of a Network Access Control (NAC) will enable the deployment of a new security system that, integrating with the organisation outlined in the document "Security Policies for Justice Information Systems," will make it possible to monitor access to local networks, preventing critical security issues linked to unauthorised access.

On the one hand, the availability of digital tools may facilitate the collection of consumers’ data and claims, in particular with regard to specific type of actions (e.g. the entities entitled to bring collective actions indicate on their website the actions they have decided to bring, the status of those brought, and their outcome and such information is easily accessible to consumers who may decide to adhere). On the other hand, businesses and companies are able to constantly monitor the status of claims involving risks for them and thus may be able to assess the level of risk, take steps to manage such risk and mitigate it as well as undertake any other measure to protect their interests against possible claimants. 

Within the Action Plan European e-Justice, the Ministry of Justice has undertaken measures aimed at facilitating citizens’ access to justice. Indeed, judicial digitalisation is not limited to the mere reduction of materials connected to traditionally paper-based acts and documents, but is aimed at making justice more accessible through the reduction of the duration of the proceedings and the increase of their predictability as well as the effectiveness of enforcement of decisions.

In this regard, the Italian Ministry of Justice has developed a centralised e-Portal for the digital exploitation of several chancery services as described under Question 2 c., accessible both via web and mobile application.

Also, the Ministry is considering improving technologies implementing chatbots that can help users and direct them to the information they seek. However, chatbot systems are not yet available.