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Closed doors, virus infects Italian criminal trial

17 October 2020, Nicola Canestrini

The publicity of court proceedings protects defendants  against secret justice, which is beyond the control of the public, and is also a means of preserving trust in judges, thus helping to achieve a fair trial. See also N. Canestrini, "Does the Covid19 disease infect the rule of law in Italy?" (March 2020).

Criminal proceedings always in chambers with closed doors: does Italian COVID 19 emergency legislation respect the right to a fair trial?

Nicola Canestrini

Italian defense counsel, canestriniLex.com

"The accuser first and the defendant second intervene with a single speech; [...] begin the investigation, with an adequate analysis of the facts exposed. All citizens [...] listen carefully".

 Plato, The laws

1. Introduction

As is well known, with the legislative decree of 17 March 2020, n. 18 (so-called "Cura Italia" decree), published in the Official Gazette n. 70 of 17.3.2020, extraordinary edition, and immediately came into force, the Government has returned to regulate, among others, the matter of carrying out judicial activity in the current context of health emergency due to the spread of Covid-19; to this measure has been added the d. l. 8 April 2020, n. 23], in force since 9 April 2020; the decree was converted, with amendments, by Law 24 April 2020 n. 27 on "measures to strengthen the National Health Service and economic support for families, workers and businesses related to the epidemiological emergency by COVID-19. Extension of the deadlines for the adoption of legislative decrees (so-called Care Italy Decree)".

Given the indisputable need to urgently regulate the matter, in order to protect public and individual health and also contain the possible negative effects of the epidemic on the regular course of criminal proceedings, it was noted (1) that the legislation in question does not fail to raise some questions: the underlying theme is of course that of the relationship between the right to health, understood in its dual individual and collective dimension under Art. 32 of Italian Constitution, procedural guarantees and the efficiency of judicial activity, all of which have constitutional status and are called into question by emergency legislation.

Before dealing with the examination of some critical aspects underlying the legislation, with particular reference to the derogation ex lege of the publicity of the trial, it should be remembered that the discipline was initially entrusted to art. 83 of the measure; with specific regard to the effects of the decree law in question on criminal proceedings, it is confirmed the adoption of two different bands of measures, according to a logic already used in the legislative decree of 8 March and for which

(a) to a first group of general interventions uniformly extended to the whole national territory is added the possibility that the

(b) heads of the judicial offices adopt, both until 11 May and afterwards, the individual prescriptions contained in the list contained in paragraph 7 of the article.

With regard to the performance of non-suspended judicial activity, in addition to the possibility of adoption, pursuant to paragraph 5, of certain specific measures by the heads of judicial offices, it should be noted the possibility, established in paragraph 12 and already provided for in Legislative Decree 11/2020, of recourse to remote participation in hearings by persons detained, interned or remanded in custody.

2. Hearings behind closed doors, a problem for democracy

With specific reference to the publicity of the hearing, Article 83/7 (e) provides for "the celebration behind closed doors, pursuant to Article 472, paragraph 3, of the Code of Criminal Procedure, of all public criminal hearings or individual hearings and, pursuant to Article 128 of the Code of Civil Procedure, of public civil hearings".

The letter of the relevant provision provides therefore (as an alternative to the remote procedure, which also raises perplexity with respect to the so-called fair trial) would indicate that the hearing in presence must always be held behind closed doors, almost as if to imply a "superordinate interest of public health and national security"; however, it is allowed here to raise doubts about the constitutional and conventional legitimacy of the emergency provision to the extent that it does not allow the judge to assess the need to proceed behind closed doors case by case (for example, only when there is a danger of assembly in the public).

2.a Italian ordinary discipline in internal regulations 

According to the art. 473 c.p.p., headed "order to proceed to closed doors", in the cases previewed from the art. 472, the judge, heard the parties, arranges, with order pronounced in public hearing, that the hearing or some moments of it take place behind  closed doors.

These are, in summary, cases in which the publicity may be harmful to morality or, may involve the dissemination of information to be kept secret in the interest of the State or prejudice to the confidentiality of witnesses or private parties with regard to facts that are not the subject of the criminal charge; the judge also provides that the hearing or some acts of it take place behind closed doors in sexual offenses against minors, when there are public demonstrations that disturb the regular running of hearings, when it is necessary to safeguard the safety of witnesses or defendants or - precisely - when the publicity may harm "public hygiene".

The nature of exceptions to the advertising principle proper to the collective limits set forth in Article 472 of the Italian Criminal Code is reflected in the form of the provision that provides them: the order to proceed behind closed doors is pronounced by order, formal act, extrinsic typical of the decision-making powers of the Judge, which must be motivated under penalty of nullity (Article 125 of the Italian Criminal Code).

The order ordering that the hearing or some acts of it be held behind closed doors is revoked, in the same manner in which it was issued, when the reasons for the order cease to exist (art. 473/1 c.p.c.): the "provisional" nature of the order is therefore a consequence of this, in the sense that the preclusive effectiveness of its own publicity can legitimately be expressed as long as the reasons for secrecy that justified it remain. Once the latter have ceased to exist, it must be revoked, in the same manner in which it was issued, i.e. by order issued in public hearing, then before the public readmitted to the courtroom, after hearing the parties.

On the other hand, an express revocation is not necessary when the order has ordered the doors to be closed for the completion of certain debating acts. In this case the general rule of publicity automatically regains force once the acts for which it was necessary to proceed with closed doors have been concluded.

The violation of the rules governing the adoption of the ordinance ex art. 473/1 c.p.p., determines the nullity of entire trial.

In this regard, however, different hypotheses can be outlined depending on whether the defect is related to the training procedure of the measure, or the substantive assumptions of the same.

From the first point of view, the order is null and void in two cases: when it lacks the motivation (Art. 125/3 of the Criminal Code) and when it was issued without the prior consultation of the parties. While in the first case there is relative nullity (Art. 181 of the Criminal Code), in the second case, since a provision (Art. 473, para. 1) is violated that concerns the intervention of the parties in the proceedings (Art. 178/1, letter b and e of the Criminal Code), there is an intermediate nullity (Art. 180 of the Criminal Code).

The measure that provides for the closure of the doors is then null and void, pursuant to Article 471/1 of the Italian Criminal Code, when it is adopted outside the cases absolutely indicated by Article 472. It was stated, on this point, that in order to avoid nullity, a simple reference to one of the cases referred to in Article 472 is not sufficient, requiring, instead, "the actual existence of the conditions of fact that constitute the substratum of the exceptions provided for", since the discretion of the Judge in the assessment of these conditions cannot extend to "make the measures based on circumstances that clearly do not exist" (so comment on the Code of Criminal Procedure, Wolters Kluwer, sub 372, with doctrinal references).

With regard to the nature of this nullity, the doctrine and a majority jurisprudence are in agreement in considering it to be of a relative nature, as such declarable only if the defendant raises the question and is subject to the terms and limits of deductibility set out in Articles 181 and 182 of the Italian Criminal Code. 

With regard to the appeal against the order ordering the closing of the doors, despite the silence kept on the point by art. 473, the general rule set forth in art. 586 It. criminal procedure code is considered applicable, according to which, when it is not otherwise established by law, the orders issued in the hearing can be appealed only with the appeal against the final judgment.

2.b The ordinary discipline in the conventional perspective

The regime of the hearing behind closed doors, applicable only for "questions of a technical nature that can be satisfactorily regulated only on the basis of the file" (judgment of the European Convention of Human Rights  of 10 April 2012, Lorenzetti v. Italy) seems to be incompatible with supranational principles, such as Article 14, paragraph 1, UN Covenant, which provides for the guarantee of publicity of judicial proceedings, also enshrined in Article 6, paragraph 1, of the ECHR, as interpreted by the European Court of Human Rights, and, consequently, with Article 117, first paragraph, Italian Constitution, with respect to which the above mentioned conventional provision is known to have an additional value, as an "interposed norm".

Article 6, paragraph 1, of the ECHR states - for the conferring party - that "every person has the right to have his case examined [...], publicly and within a reasonable time by an independent and impartial tribunal [...]. ]", also ruling that "the judgment must be rendered publicly, but access to the courtroom may be prohibited to the press and the public during all or part of the trial in the interest of morals, public order or national security in a democratic society, when the interests of children or the protection of the privacy of the parties to the proceedings so require, or, to the extent deemed strictly necessary by the court, when in special circumstances publicity might prejudice the interests of justice". Moreover, the European Court of Human Rights itself has already had the opportunity to consider as contrary to the above mentioned conventional guarantee certain judicial procedures which the Italian law provided for hearings in chambers.

This has happened, in particular, with regard to the procedure for the application of preventive measures (judgment of 13 November 2007, Bocellari and Rizza v. Italy, in the wake of which judgment of 26 July 2011, Paleari v. Italy; judgment of 17 May 2011, Capitani and Campanella v. Italy; judgment of 2 February 2010, Leone v. Italy; judgment of 5 January 2010, Bongiorno and others v. Italy; judgment of 8 July 2008, Perre and others v. Italy) and the procedure for the reparation of unjust imprisonment (judgment of 10 April 2012, Lorenzetti v. Italy).

The European Court has reached this conclusion recalling its constant jurisprudence, according to which the publicity of judicial procedures protects persons subject to jurisdiction against secret justice, which is beyond the control of the public, and is also a means to preserve trust in judges, thus contributing to the achievement of the purpose of Article 6, paragraph 1, of the ECHR, the fair trial.

As the exceptions provided for in the second part of the rule testify, this does not prevent, in absolute terms, the judicial authorities from derogating from the principle of publicity of the hearing.

The European Court itself has, on the other hand, held that certain exceptional situations, relating to the nature of the issues to be dealt with - such as, for example, the "highly technical" nature of the litigation - may justify dispensing with a public hearing. In any case, however, the hearing in camera, for all or part of its duration, must be "strictly imposed by the circumstances of the case".

As pointed out by the Italian Constitutional Court with the above mentioned judgments n. 93 of 2010 and n. 135 of 2014, the conventional rule, as interpreted by the European Court, does not conflict with the protections offered by our Constitution (hypothesis in which the rule itself would remain unsuitable to integrate the parameter of art. 117, first paragraph, Cost.), but is, indeed, in substantial agreement with them. The absence of an explicit reference, in fact, does not affect the constitutional value of the principle of publicity of judicial hearings, which is also enshrined in other international charters of fundamental rights.

The publicity of the judgement - especially the criminal one - represents, in fact, a principle inherent in a democratic system (ex plurimis, judgements n. 373 of 1992, n. 69 of 1991 and n. 50 of 1989, It. Constitutional Court). The principle has no absolute value, since it can be surrendered in the presence of particular justifying reasons, provided, however, that they are objective and rational (judgment no. 212 of 1986), and, in the case of criminal proceedings, linked to the need to protect assets of constitutional importance (judgment no. 12 of 1971).

The Strasbourg Court, in turn, recalls that the publicity of the proceedings of the judicial bodies referred to in Article 6 § 1 protects the defendant against a secret justice that is beyond the control of the public (see, Riepan v. Austria, no. 35115/97, § 27, CEDH 2000 XII); it is also one of the means of preserving confidence in the courts and tribunals. With the transparency it confers on the administration of justice, it helps to achieve the aim of article 6 § 1: the fair trial, whose guarantee is included among the principles of every democratic society under the Convention (see, among many others, Tierce and others c. Saint-Marin, nº 24954/94, 24971/94 and 24972/94, § 92, CEDH 2000 IX).

Article 6 § 1 does not, however, pose any obstacle to the judicial authorities deciding, in view of the particularities of the case before them, to derogate from this principle: according to this very provision, "entry into the courtroom may be prohibited to the press and the public for all or part of the trial in the interests of morality, public order or national security in a democratic society, when the interests of minors or the protection of the life of the parties to the proceedings so require, or to the extent deemed strictly necessary by the court, when in special circumstances publicity could harm the interests of justice"; the hearing behind closed doors, with total or partial closure, must then be strictly imposed by the circumstances of the case (see, for example, mutatis mutandis, the Diennet c judgment. France, of 26 September 1995, Series A nº 325-A, § 34) .

3. Italian COVID19 emergency regulation. 

The rule that would oblige the national judge to always conduct the hearing behind closed doors clashes with the outlined principles; the protection of the health of the participants in the hearing could, however, easily be achieved through the adoption of measures less restrictive of the closure of the hearing, such as the obligation to adopt safety distances, the obligation to wear facial masks and the containment of the number of spectators/journalists present in the courtroom. 

The total and indiscriminate closure of the courtroom seems to be an excessive, as well as unjustified, restriction of the right of the defendant to a fair trial; it should be noted, however, that in the cases provided for by Article 472/3 of the Italian Criminal Code, when, in other words, proceedings are conducted behind closed doors according to the "ordinary" rules also for reasons of public hygiene, due to public demonstrations that disturb the regular conduct of the hearing or in order to safeguard the safety of witnesses or defendants, the Judge may (must?) allow the presence of journalists, a presence which is excluded by the emergency regulations (which do not even provide for the use of modern technology to ensure the necessary participation of public opinion, e.g. through links to communicate only to accredited journalists or by providing streaming on web platforms). 

 Therefore, it will be up to the defense to request that the hearing be held in the form of a public hearing, raising the relative objection of nullity that has to be raised in appeals stage as well; in alternative, defense has to urge teen judge to raise question of constitutional legitimacy of the art. 83/7 (e) DL March 17, 2020, n. 18, Measures to strengthen the National Health Service and economic support for families, workers and businesses related to the epidemiological emergency by COVID-19, converted with amendments by Law April 24, 2020, n. 27, with reference to Article 117 of the Constitution as an interposed parameter of Article 6 ECHR.