The impact of Covid-19 on criminal proceedings

Federico Lucariello and Ilaria Lopez

In the last few weeks, the Italian Government has been facing unprecedented difficulties due to the Coronavirus outbreak. In order to manage the latter, several containment measures and regulatory reforms were adopted, with a significant impact on the Italian judicial system.

Provisions were adopted to ensure the maintenance of social distancing and avoid any form of large gatherings of people, including incisive measures regulating public access to judicial offices, as well as the management of hearings.

 

The postponement of the hearings and the suspension of the procedural time-limits

Pursuant to Art. 83 of Law Decree 17 March 2020, no. 18 (i.e. Cura Italia” – hereinafter, “the Decree”), all criminal hearings scheduled from 9th March 2020 to 15th April 2020 have been postponed after this period with limited exceptions.

Likewise, all the procedural time limits (including those related to preliminary investigations, the adoption of judicial measures the filing of the reasoning of the Judge, the adoption of legal remedies, etc.) have been suspended.

Subsequently, the hearings’ postponement and the suspension of time limits were extended until 11th May 2020.

As anticipated, the Decree provides further measures to significantly reduce the flow of people in  judicial offices, as follows:

  1. procedural time limits starting within the suspension period will begin to run only at the end of the latter;
  2. if a procedural time limit, counted backwards, falls – also even in part – in the suspension period, the hearing/the activity from which the time limit starts to run shall be postponed;
  3. the heads of the judicial offices may adopt further organizational measures in relation to the proceedings scheduled after the period of suspension and until 30th June 2020, such as the postponement of hearings after 30th June 2020.

The Decree also provides for exceptions to the above, specifically identifying the proceedings in which time limits are never suspended ex lege, namely:

  • proceedings aimed at validating the detention/arrest;
  • proceedings in which the maximum term of duration of pre-trial detention expires during the suspension period (art. 304, ICC);
  • proceedings in which custodial security measures are applied or requested;
  • proceedings of an urgent nature due to the undeferrable need to collect evidence (art. 392, ICC); in this case, the declaration of urgency is adopted by the Judge (or by the President, in case of collegial hearing) with a reasoned and unchallengeable act.

There are also other circumstances in which time limits cannot be suspended, as is to say in the presence of an express request of the parties (i.e. the detained person, the accused or their defense counsel) and in case one of the following proceedings is concerned:

  1. proceedings against detained persons (except for the precautionary suspension of alternative measures);
  2. proceedings in which precautionary or security measures (both personal and involving assets) are applied;
  3. proceedings for in which preventive measures are decided upon or applied.

Also consider that the Decree does not set forth clear rules on some points relevant to the exercise of the right of defense, as in particular:

  1. shall the person entitled to request the treatment of his/her hearing receive a specific warning in this regard?
  2. which is the deadline within which the request for the treatment of the hearing must be submitted to the competent judicial office?
  3. what about criminal proceedings involving more than one accused persons?

In relation to cases sub 1, the Supreme Court clarified that, seeing as the legislator did not provide for this into the Decree, it can be excluded that the said individuals must receive any preliminary information.

As for cases sub 2, the Supreme Court established that the requests for discussing already scheduled- hearings should be received within three days from the publication of the Decree.

Lastly, in relation to cases sub 3, no doubts arise on the right of the defendant to avoid the postponement of the hearing in case of cumulative proceedings. Should some of the defendants being in favor of the postponement instead, the Judge could order the separation of the proceedings concerned, as to allow the requesting party only to attend the hearing.

 

The suspension of the statute of limitations and the precautionary measures

The Decree, as recently amended in April, sets forth rules on the statute of limitations and the duration of precautionary measures.

In particular,  the same suspension of procedural time-limits also applies to the statute of limitations and the maximum duration of pre-trial detention and alternative measures . However, no suspension applies to criminal proceedings in which the maximum duration of pre-trial detention falls within six months of 11st May 2020.

In addition, the statute of limitations remains suspended throughout the postponement of the criminal proceeding and, in any case, no later than 30th June 2020.

Likewise, the following terms are suspended until the next deferred hearing and, in any case, no later than 30th June 2020:

  • terms for deciding on the review request filed by the person under investigation subject to precautionary measures;
  • terms for the Supreme Court’s decision on the ruling of the Court of Review [“Tribunale del Riesame”];
  • terms for the Court of Review’s decision following the annulment of a supervision order [“ordinanza cautelare”];
  • terms for the decision upon certain specific requests of re-examination [“richiesta di riesame reale”];
  • terms for deciding on preventive measures.

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