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Prof. Avv. Roberto De Vita gave a lecture for the officials of theFBI – Federal Bureau of Investigation, of the U.S. Secret Service, of theIRS , of the Metropolitan Police Service, ofHM Revenue & Customs, and of the Royal Canadian Mounted Police., titled “The fight against money laundering and financing of international terrorism – Intelligence and analysis techniques – Introduction” within the International Courses organized by the Economic and Financial Police School of the Guardia di Finanza.

The Senate Standing Committee on Justice has delivered the conclusions of its fact-finding investigation on the subject of wiretapping, which has been ongoing since December 2022: among the most notable observations is the Commission’s opposition to an expansion of the tool of preventive wiretapping.

The overall purpose of the survey was to delve into the most critical aspects of the wiretapping phenomenon, both in light of the latest reforms and, most importantly, the impact of new technologies, “both for the prevention of organized crime and for the need to introduce protections beyond the tool of the computer capturer (trojan) or other particularly invasive devices“.

The preventive wiretapping

Of particular interest are the reported considerations regarding preventive wiretapping, especially in light of the current geopolitical scenario and the resulting aggravated risks of international terrorist activity in Europe.

In particular, the Commission clearly spoke out against the strengthening of this tool, accepting the demands of some of the hearings, who pointed out that the numerous proposals to limit wiretaps ordered in criminal proceedings should not risk leading instead to greater use of preventive wiretaps and – as a result – to fewer protections for individuals[1].

The survey’s conclusions, on the contrary, reaffirmed that “the protection of privacy and the individual sphere of citizens can only be ensured through appropriate guarantee procedures, necessarily embedded within judicial proceedings” before a third and impartial judge.

In this regard, the criticism made by the Union of Criminal Chambers in a memorandum filed at the hearing was valued and cited: “The extension of preventive interceptions would result in the abstract possibility that the public authority, in the expectation of identifying news of crime on which to carry out subsequent investigations, would be authorized to listen to the communications of anyone in general, with the sole consequence of their non-usability in the trial[2]“.

Indeed, the concern shared in the survey’s conclusions is that the procedural guarantee of unusability alone is insufficient to limit the use of prior wiretapping as a means of evidence-seeking (removed from a judge’s subsequent review).

In the Commission’s view, “instead, the perimeter set by Article 15 of the Constitution under which the limitation of the principle of inviolability and secrecy of correspondence and all forms of communication can only take place by virtue of a reasoned act of the judicial authority must be reaffirmed.”

The conclusions drawn at the end of the investigation are particularly relevant in light of recent changes in the global political environment, which underscores the current need for preventive wiretapping to combat international terrorism.

The opinion expressed by the Commission stimulates the debate of scholars, jurists and the intelligence community, aimed at the confrontation and composition of different instances: in fact, today it is even more evident that a (complex) balancing of the needs of prevention and protection of the community with the safeguarding and respect of constitutional rights is necessary; and this in order not to deprive the public authority of a bulwark for the security of citizens and – at the same time – to avoid that a widespread and indiscriminate use of the instrument generates undue compressions of the fundamental freedoms of individuals.

To learn more, download the survey findings here.

References

[1] See https://www.camerepenali.it/public/file/Documenti/Documenti_Giunta_Caiazza/2023-01-12-Note-UCPI.pdf.

[2] Ibid, a criticism also reiterated at the hearing by Union President Adv. Giandomenico Caiazza, see https://www.senato.it/service/PDF/PDFServer/DF/426472.pdf, p. 10-11.

That is, how a subjective public right of constitutional rank has become a mere allocation of workloads among magistrates, oscillating between vertense instances, abstract models of administrative organization and lack of transparency.

“The guardianship of the natural judge is considered one of the greatest and most valuable for the freedoms and rights of citizens“: this is how the distinguished jurist, magistrate and lawyer, Lodovico Mortara, expressed it even in 1929.

This principle of legal civilization, now transfused into Art. 25, paragraph 1, of the Constitution (“No one can be diverted from the natural judge pre-established by law“)[1] sees its expression not only in the necessary compliance with the rules on jurisdiction and competence and in the prohibition of establishing extraordinary judges or special judges, but also in ensuring certain and predetermined criteria regarding the allocation of judicial business to individual judges.

These distribution rules are known in the Italian legal system as “tables” or the locution “tabular system,” and they implement – through the general regulatory and connecting work carried out by the Superior Council of the Judiciary, participated in at various levels by individual judicial offices – a model that tends to guarantee the independence of individual judges within the office and, on the other hand, would like to ensure compliance with the constitutional principle of the judge pre-established by law.

However, there is an irreconcilable contrast between those (criminal trial scholars, lawyers, and constitutionalists) who believe that the system is a functional expression of a constitutional right and those (the judiciary), on the contrary, who identify it as a mere organizational tool, an internal matter within the category that does not need public observation, knowledge or control. And hence also the general lack of verifiability that -in concrete terms- characterizes the subject matter. Suffice it to observe with what difficulty the tables of many judicial offices can be found and consulted, sometimes hidden in the maze of poorly indexed websites, other times completely absent: an expression of a general lack of transparency.

Moreover, a constant debate has developed over time around this system, fueled by its complex (and sometimes cumbersome) procedures, until it recently led to an attempt at an organic reform of the judicial system, aimed at solving some of its structural criticalities, but which still does not touch the heart of the matter.

Alongside it, there remains the judiciary’s strenuous defense of a principle of their own devising (but which finds no support in the norms and scholarly opinion), namely that that of the judge pre-established by law is a precept applicable only to the judicial office and not to the individual judge as a natural person.

judge as a judicial office and not as an individual, lack of transparency and verifiability in practice, compounded by the nonexistence of procedural remedies for violations and the provision of mere and theoretical disciplinary sanctions. This is the framework of the idea that the choice of judge should in no way be verified, as an internal (almost secret) matter of judicial offices.

The natural judge pre-established by law and the system of assignment to individual judges.

The current procedure for assigning trials to individual judges is the result of a stratification of primary and regulatory rules, in which the role of the Superior Council of the Judiciary, a body of self-government and guarantee of judicial power, is central. This articulated regulation had, in our system, a genesis dating back to the early 1970s and has experienced a progressive evolution, both in legislative and jurisprudential terms, which has come down to recent reform projects and the ensuing debates.

What, in the eyes of most, appears to be an exquisitely technical issue and the exclusive preserve of legal practitioners, actually has a deep-rooted connection to the rights and guarantees of all citizens. In concrete terms, the discipline (which might be perceived on the surface as a mere automatic mechanism for dividing the workload of a judicial office) represents-particularly in the criminal sphere-a delicate and fundamental moment for respecting the fundamental rights of the accused and other parties.

In these terms, the SCM itself – in one of the first circulars introducing an embryonic procedure of “tabular” allocation of cases among judges in individual judicial offices[2] – stated that the allocation model was “aimed at ensuring at one and the same time the internal independence of judges and the principle of judicial pre-establishment […]“.

It was, therefore, openly evoked Art. 25, Paragraph 1 of the Constitution, according to which “no one may be diverted from the natural judge pre-established by law.”[3] The principle of pre-establishment of the judge, contained in the part of the constitutional charter relating to the rights and duties of citizens and also referred to by Art. 6 of the ECHR[4] and 47 of the EU Charter of Fundamental Rights[5], underlies the guarantee of a fair trial, as it ensures impartiality[6] and, consequently, the credibility and reliability of the judiciary in a democratic system.

In fact, this guarantee has an origin well before its inclusion in our Constitutional Charter and, even, dates back to the revolutionary constitutions in late-18th-century France and later resumed in the French Constitutional Charters of the mid-19th century,[7] which saw the affirmation of the aforementioned principle as a reaction to the sovereign’s interference in judicial affairs.

In other words, the aim was to entrust only the law with the power to regulate the judiciary and its organization, thus preventing, for example, the sovereign from being able to ad libitum establish a new extraordinary judge (who would adjudicate specific facts or well-identified persons) or special judges (who would know and adjudicate a generality of disputes pertaining to matters normally falling under the aegis of ordinary jurisdiction).

The ensuing normative evolution led to the introduction of the same provisions in the Statuto Albertino (first)[8] and in the Constitution (later): moreover, a corollary of today’s constitutional principle is also expressly stated in Article 102, Paragraph 2 of the Constitution,[9] which provides for the prohibition of establishing “extraordinary judges or special judges.”

Net of this pacific prohibition, the interpretative development of the principle of judicial pre-establishment contains within itself a further and broader scope, which was well clarified by the Constitutional Court in a pivotal pronouncement on the subject: in ruling no. 88 of 07.07.1962, the Constitutional Court affirmed that the pre-establishment of the judge by law is realized in the “prior determination of jurisdiction, with reference to abstract cases that can be realized in the future, not already, a posteriori, in relation, as they say, to a reigiudicanda that has already arisen” through the identification of a jurisdiction immediately and exclusively fixed by law, without the possibility of a “alternative between one judge and another, provided for by law, but resolvable ex post facto, by individual measure, in relation to a given proceeding“, as “pre-establishment of the judge and discretion in its concrete designation are criteria between which there is no possible reconciliation“.

In these terms, the Law Judge identified in Art. 25, para. 1 Const. a reservation of the law regarding the jurisdiction of the court, hence the unconstitutionality of any provision that gives executive and judicial bodies the power to modify post factum the jurisdiction of the court[10]; on the other hand, the same Court has remarked on the substantive scope of the principle of the natural judge pre-established by law: it meets the need to assure every individual that his or her actions will be judged by a pre-established body, “i.e., identifiable on the basis of rules that pre-existed the reigiudicanda and are such as to preclude any discretion on the choice“.

As anticipated, this rule constitutes the basis on which the guarantee of impartiality of the court is rooted, as it excludes that its designation (as well as the determination of its competencies) can be conditioned by external factors, subsequent to the facts to be judged[11]. In other words – and borrowing the thinking of authoritative doctrine – “Art. 25, paragraph 1 Const. responds to the fundamental right to have an independent and impartial judge, who, in the conflict between opposing claims submitted to his or her judgment and between the parties to the trial, cannot give rise to the doubt that he or she has been specially established for that dispute and for those parties”[12].

To summarize, the principle of judicial pre-establishment thus guarantees the right to be judged impartially and free of bias or conflict of interest, according to a system that prevents the possibility of choosing the judge or influencing his or her appointment process in any way on the basis of contingent convenience. In addition to being fundamental to ensuring the functioning of justice and the fair treatment of citizens, the knowledge that they are being judged by a judge chosen by law according to objective and impartial criteria is also fundamental to nurturing individuals’ confidence in the judicial system.

But if it is clear from the beginning that Art. 25 of the Constitution is the cornerstone of the rules of jurisdiction with a view to the allocation of business among the various judicial offices, however, it is more difficult to determine whether the same principle of pre-establishment should also refer to the judge as a natural person.

In other words, should the certainty of a pre-establishment of the judge (even if only in the criteria of allocation and distribution) concern only the deciding body objectively understood (i.e., the office) or also the individual judge as a natural person, within that body? This is one of the most controversial issues in the field and one that, to this day, has not found a definitive solution.

The majority doctrine holds that the natural judge should be identified with the magistrate who is a natural person[13]because only this approach allows for the full and concrete realization of judicial preconstitution; on the contrary, excluding from its application the allocation of cases among individual magistrates within the same judicial office would deprive the aforementioned guarantee of effectiveness. In terms as hyperbolic as they are concrete is expressed the famous adage that “To prevent a given trial from being tried by the Court of Catania instead of the Court of Ragusa is worth nothing if it does not remain prevented from being constituted by the Court of Ragusa by applying to it the judges of the Court of Catania.”[14].

The issue has also long been debated in jurisprudence, especially constitutional jurisprudence: if, in fact, the Supreme Court, in a tranchant manner and contrary to the doctrine’s position, has referred the cited principle to the adjudicating body only and not to the judge as a natural person[15], the Constitutional Court has examined the issue more penetratingly, making various pronouncements not immediately subsumed into a single, clear-cut stance on the issue.

In summary (and in the knowledge that the issue pertaining to the determination of the boundaries of the concept of “judge” would require a monograph-length study), the Constitutional Court has oscillated between the majority doctrine’s reading[16] and the more restrictive one expressed by the Supreme Court: according to some commentators, this apparent discrepancy stems from the Consulta’s need to “combine the most guaranteeing interpretation with the need to ensure the good performance and efficiency of the judicial system.”

Accordingly, “Indeed, the constitutional judge is aware that only by identifying the natural judge with the natural person is the guarantee contained in Article 25, Paragraph 1, Const. fully protected. However, he is equally aware that such a strict approach may undermine the proper organization of the justice service, an interest also worthy of attention. Ultimately, the need for careful balancing of the different values at stake emerges from constitutional jurisprudence.”[17]

In any case, net of interpretative uncertainties as to the actual extent of the principle in Art. 25, paragraph 1 Const. it is the Superior Council of the Judiciary itself that anchors its own regulatory provisions on the criteria for the assignment of proceedings within individual judicial offices to the guarantee of the natural judge pre-established by law. And in fact, as anticipated, the so-called “tabular system” is based on this principle: according to other scholars, it was precisely the spread of the “tabular system” and the subsequent introduction of the rules in Articles 7 bis and 7 ter in the Law on Judicial Order (R.D. No. 12 of Jan. 30, 1941, discussed below) that more clearly linked the assignment of judges to individual offices with the principle of judicial preconstitution. Evidence of this would be the fact that the Constitutional Court’s most guaranteeing interpretation would reside in pronouncements following the enactment of the aforementioned provisions.

However, the relevance of the correct and certain identification of the judge as a natural person appears even more evident on the basis of a statistical consideration.

In fact, within the Italian legal system (with particular reference to criminal justice), through the different stages and degrees of proceedings, the “moments” during which a single individual rather than a college decides are clearly predominant, partly because of the inverse proportion between the seriousness of the facts of crime and the frequency of their commission. Where in the presence of a collegial judge we might consider “diluted” the risks associated with a deviation from the rules in the identification of one or more judges, in the case of monocratic composition the trust placed by users of the justice system would be far more exposed to danger.

In fact, criminal proceedings in the Ordinary Courts in the first quarter of 2023 totaled 1,005,982, of which 57.47 percent are pending before the Court in monocratic composition, 39.03 percent before Judges for Preliminary Investigation or Judges for Preliminary Hearing (both monocratic), while only 3.45 percent and 0.4 percent are pending before the Court in collegiate composition and the Assize Court, respectively.

To these numbers, moreover, can be added 72,040 proceedings under the jurisdiction of the Justice of the Peace. Including the latter, we reach a percentage of 96.73 percent of proceedings that are handled, in at least one of their stages and degrees, by a monocratic judge. Consider, finally, that during the same period the proceedings pending in the Courts of Appeals and the Court of Cassation are naturally much lower, 247,588 and 17,697 respectively[18].

The tabular system

Originally, the “tabular system” had its source exclusively in the secondary discipline of SCM circulars, but in 1988 it was then followed by the introduction into the Judicial System Act of Art. 7 encore (now headed “Tables of Judicial Offices”) and 7 ter (now headed “Criteria for Assignment of Business and Replacement of Impaired Judges”) and their subsequent reforms.

According to these provisions, the assignments, therefore, are defined according to a system of organization tables made for each office, which are determined every four years (previously every three years) by decree of the Ministry of Justice, based on the deliberations of the Superior Council of the Judiciary (Circular on the formation of the organization tables of judicial offices), in compliance with the rules of judicial order.

In fact, the role of the SJC in determining allocations(under Article 105 of the Constitution[19]) is an expression of guarantee vis-à-vis the judiciary, which in the absence of this power would lose its autonomy vis-à-vis the other powers of the state, and in particular the executive; the latter, in fact, could otherwise decide on appointments, transfers, and promotions of magistrates, undermining their independence.

Moreover, while based on the guidance of the Circular, the process of forming the tables of each judicial office thrives on a wide-ranging comparison that starts from the reports made by the managers of the judicial offices and is enriched – among others – by the contributions of all the magistrates working there, the Bar Councils, the Public Prosecutors’ Offices and the administrative managers, and the opinion of the Judicial Council.

Therefore, the tables are the result of an expanded implementation process, which, however, is inspired by a principle of certainty and stability of the magistrate’s assignment: and in fact, once the table is approved, a reasoned decision is required to allow its modification, which severely limits the possibility of arbitrary intervention in the Office’s choice of judge.

On the other hand, also crucial within the tabular system is the issue of the assignment of managerial and semi-managerial positions, which has become a highly debated issue in recent years. In fact, on the one hand, news cases concerning the work of the SJC have ignited debate in the public opinion, fueling fears of “piloted” choices in the selection of appointees and, consequently, of their work in the exercise of the judicial function[20]. On the other hand, the system has proven fallacious where contrasts between the SJC and the administrative jurisdiction have become apparent: the Council of State’s annulment of some of the apex appointments made by the judiciary’s self-governing body (First President and Deputy President of the Supreme Court) have raised important questions about potential conflicts of powers and the reviewability of some of the latter’s decisions[21].

Compliance with the table: poor verifiability in practice and lack of protective tools

The Italian legal system has given the principle of the natural judge a role of absolute importance in the construction of its model of a democratic judicial system: the tabular system itself, albeit with its perfectibilities, is a concrete manifestation of the search for full implementation of the principle set forth in Art. 25 of the Constitution[22].

A preeminent and laudable attention to the formal datum, however, has never been followed by an effective and shared publicity of the tables adopted by individual judicial offices: from a practical point of view, the subjects entitled to the right to a natural judge (i.e., citizens) have no real knowledge of the criteria and logic of the allocation and assignment of trials to individual judges.

The tables, in fact, are not the subject of a structured and shared work of publication on the Web: these sometimes cannot be found, in other cases they are not properly indexed and, therefore, cannot be searched easily by the individual user. A transparency flaw in complete contrast to the current (regulatory and technical-organizational) setup of public administrations, which through the use of IT resources allow clear and unambiguous information accessibility to individual private users.

The origin of this shortcoming must be found in the very thought that animates the relevant case law: the tabular system is only an organizational tool and is not an expression of any constitutional principle.

If this were the case and such a reading were correct, the need to allow for concrete verifiability of citizens’ compliance with the tables would obviously be negligible.

It should therefore be made clear that the perspective of observation must be reversed: the tables are not a mere internal matter, resulting from the interpretation that is made of the legislative and constitutional dictates; on the contrary, it is the latter orientation that is a slavish consequence of the desire to keep the table system – in application – as much as possible under the exclusive control of the judiciary itself.

This deficiency is further and consistently exacerbated by the lack of effective procedural remedies, through which the subject party to the court proceedings can concretely enforce his or her right to a natural judge: as a result, the latter now emerges “as the most classic example of a‘paper right‘“[23].

In other words, although there is an abstract guarantor model, which ensures in its principles respect for the pre-establishment of the judge, there is no concrete and full visibility of the model adopted by the individual office and, from a technical-legal point of view, there is no remedy that allows the citizen to activate this right in its “strong conception”[24].

Indeed, where there is participation even from outside the judiciary that allows for (more or less efficient and virtuous) sharing at the approval stage, it is precisely at the application stage, as mentioned above, that the most critical issues become apparent.

From the point of view of the citizen, understood as the user and recipient of the justice “service,” what is most important is not so much that the table meets efficiency requirements, but to know that it will actually be met[25] or-alternatively-that there will be a procedural means to claim respect for one’s right to a natural judge.

This principle, therefore, would be guaranteed, on the one hand, by the cognizability of the tables (to verify compliance) and, on the other hand, by the provision of appropriate remedies.

Otherwise, the assignment of judicial business to individual judges can only remain a mere internal “organizational fact”-the preserve of “assignees” only-and not a constitutional right of individuals.

According to the most authoritative scholars of constitutional law, this impasse (and, in particular, the absence of procedural remedies) originates from a multiplicity of factors, intersecting with each other: some related to the interpretation of the concept of “natural judge,” others connected to the necessary balancing act (which the Constitutional Court has made itself the bearer of in numerous pronouncements) between guarantees in the exercise of the judicial function and good performance in the administration of justice.

Among these profiles, there is one that assumes absolute centrality: the absence of agreement on the principle of the identifiability of the natural judge with the judge-person (as already described) prevents, as a result, the jurisdictional protection-in terms of full protection-of the right to the pre-establishment of the judge.

And in fact, if it is not pacifically recognized that Art. 25 of the Constitution is also concerned with the assignment to the judge-person of the specific dispute (and thus the table and its compliance), it will be impossible to admit that a trial party can act to demand compliance with the table criterion when denied or pretermitted.

Coming to the normative datum, today the law does provide that the revocation/amendment of allocation orders must be justified, and the Constitutional Court itself has, in the past, intervened on the point, stressing that any amendment of an allocation order should be limited “to objective needs of the organization of judicial services. Nor should the duty of adequate justification be precluded, so that these requirements are adequately stated, for the purpose of possible review of the measures themselves“[26].

Nonetheless, Article 7a of the Judicial Order.[27] – following the 2007 reform – stipulates that “violation of the criteria for the allocation of affairs, except for possible disciplinary relief, shall in no case result in the nullity of the measures taken“: therefore, it is possible for the criteria for assignment to be bent to the contingent needs of the office, resulting, however, in the loss of the objectivity of the method of choice that is a guarantee of the constitutional principle of the natural judge pre-established by law, without there being any procedural consequences for the acts and measures that will be taken by the judge. Here is the lack of protection of the “strong conception” of this right.

This issue is, in fact, at the heart of the current debates regarding the effectiveness, certainty, verifiability and transparency of the allocation criteria: in fact, as anticipated, the use of a predetermined tabular system responds, yes, to an organizational need (e.g., to allow the workload to be distributed fairly and as efficiently as possible), but it should also be a direct application of the principle of preconstitutionality of the judge. Principle that would be denied, if, although there is a clear rule, there is a discordant and uncertain application of it, realized – for example – through the frequent use of allocations in derogation of the ordinary provisions.

In this sense, the lack of procedural sanctions for acts performed by a judge composed (or assigned) in derogation of the provisions and, likewise, the absence of remedies that can be exercised does not allow the substantive parties and the lawyers themselves to “demand” compliance with those rules that should have been introduced, at least in part, to guarantee their constitutional right. This, at least, according to the CSM itself.

The introduction of the quoted provision within Art. 7a has, in fact, cleared the field of doubts, lucubrations and attempts at systematic interpretations with which the protagonists of judicial activity had been confronted, in an attempt to identify a “minimum threshold” of protection of the principle of Art. 25(1) of the Constitution.

On this topic, the approach in criminal justice is particularly significant.[28]: such prominence in the debate on Art. 25 Const. does not originate only and so much from the general relevance of the constitutional goods involved in the criminal process, but must be traced to the fact that, in this area of justice, the aforementioned constitutional principle and its implementation model (the tabular system) had suffered substantial negation[29].

From a normative point of view, in fact, the introduction-with the 1988 Code of Criminal Procedure-of Art. 33(2) c.p.p. (according to which “Provisions on the assignment of judges to judicial offices and chambers, the formation of panels, and the assignment of cases to chambers, panels, and judges shall not be deemed to pertain to the judge’s capacity“) ruled out the possibility that any misassignment could call into question the judging authority and its capacity.

The strict interpretation of this rule by the Supreme Court had originally confirmed that the scope of Art. 25 Const. was related only to the rules of allocation of jurisdiction between judicial offices, never expressly recognizing the identifiability of the natural judge with the physical person of the individual magistrate.

A reading in open opposition to the main thesis of the doctrine, which led to a question of the constitutionality of Art. 33(2) c.p.c. in relation to Art. 25, paragraph 1 of the Constitution, resolved by the Constitutional Court in ruling no. 419 of 1998: in an interpretive rejection ruling, the Court had to specify that the indicated constitutional provision attributes to citizens “the assurance that the jurisdiction of judicial bodies is removed from any possibility of arbitrariness. In order to ensure its impartiality, it is ruled out that the judge may be designated both by the legislature with singular rules derogating from general rules and by other parties with acts referred to them, after the dispute has arisen”[30]; however, it ruled that the criteria for assigning individual proceedings “while they should be objective, predetermined or otherwise verifiable” were “notnecessarily configured as constituent elements of the judge’s general capacity, to the deficiency of which the legislature linked the nullity of the acts“[31].

Consequently, as relevant as any violation of the allocation criteria was, and as much as it should be the subject of appropriate protection mechanisms, it could not affect the judge’s ability. However, the same Consultation adds that “This does not mean that the violation of the business allocation criteria is irrelevant and that there are not, or should not be foreshadowed, appropriate remedies of which the parties can availthemselves.”[32].

This pronouncement, together with the affirmation of the principles of due process in Art. 111 of the Constitution, also fueled an attempt at change in Supreme Court jurisprudence, which sought to identify those “appropriate remedies” for the parties in cases where the violation of the allocation criteria was so significant as to achieve, in fact, “The establishment of an ad hoc judge to decide on a particular dispute” such as to impair the judge’s impartiality.

The specific case[33] concerned a precautionary proceeding in which, on a measure issued by the G.I.P. of Cosenza, the Court of Catanzaro had ruled (revoking the precautionary measures ordered), composed – after the adoption of a specific order by the President of the First Section of the aforementioned Court and after an extraordinary hearing had been set – of a specially constituted panel, from which all the judges assigned by means of the tables were unconnected (none of whom was missing or prevented from attending) and in which the President himself and two judges not assigned to the review participated. Underlying this measure was the significant burden of the review section.

In ruling no. 27055 of 7.05.2003, the First Chamber of the Supreme Court censured this measure, stating that “if it is true that violations put in place in “tabular” matters cannot be traced back to the alveo of absolute nullities -right the specific dictate of art. 33 paragraph 2 c. p.p.- it is equally true that there exist and can exist acts and/or measures that only formally can be ascribed to the scheme now cited, but which instead, precisely because they are carried out outside the same, are to be qualified as having been put in place “extra ordinem” and, as such, falling within the group of those nullities provided for by Articles 178 n. 1 lett. a) and 179 paragraph 1 c. p. p. as irreducibly in contrast with the constitutional precepts in question”[34].

However, this effective openness to the enhancement of the “strong conception” of the right to the natural judge was, in the following years, limited by the further pronouncements of the same court of legitimacy, which, on the one hand, rejected (or declared inadmissible) the subsequent questions pertaining to the issue of non-compliance with the allocation criteria, and, on the other hand, introduced additional requirements for identifying the “threshold of procedural relevance” of violations in the tabular system.

Summary of the long jurisprudential path since the 2003 pronouncement can be found in the recent Cass. Sez. IV, no. 32899 dated 8.01.2021, according to which violations of the rules on trial assignment “affect the capacity of the judge, resulting in nullity under Article 178 c.p.p., lett. a), only when their purpose is to circumvent or violate the principle of the natural judge pre-established by law […], that is, when extra ordinem situations result or are proven, characterized by arbitrariness in the designation of the judge and produced outside of any tabular provision, precisely to constitute an “ad hoc” judge, situations before which it can no longer be affirmed that the decision of the regiudicanda was issued by a judge pre-established by law […]. It is necessary, therefore, to bring about a distortion of the essential principles and canons of the judicial system, due to the violation of rules such as those concerning the ownership of the power to assign affairs in the heads of the offices and the obligation to state reasons for orders”[35].

Accordingly, the requirements introduced by way of interpretation pertain, on the one hand, to the absolute eccentricity of the measure with respect to the provisions of the law (e.g., absence of justification for the allocation measure) and total pretermission of tabular administrative rules, and not to their “mere violation”; on the other hand, with regard to the “distortion of principles,” this must constitute the pursuit of purposes outside the ordinary exercise of the function, similar to the category of “misuse of power” proper to administrative law.

In this sense, the very recent Cass. Sez. II no. 3534 of 2023, while acknowledging the hermeneutic effort of the Constitutional Court (first) and the court of legitimacy (later) to attribute endoprocessual relevance to the violation of the allocation provisions and the balancing of the provision in Art. 33, Paragraph 2 of the Code of Criminal Procedure and constitutional and supranational principles on the subject of the judge pre-established by law[36], essentially traced the orientation that it is true that “Violation of administrative “tabular” rules can also affect the ability of the court“, but only if “the same has the aptitude to distort the orderly structure, that is, to affect the independence and impartiality of the same, attributes that are decisive in defining the rationale of the protection of the right to the natural judge“. This aptitude is measured in relation to the aforementioned requirements ( extra ordinem nature of the measure and purpose of misuse of power).

In any case, the Cass. Sez. II no. 3534 of 2023, however, takes pains to reiterate that it can “be confirmed that the guideline that the constitutional guarantee of the natural judge concerns the judicial office, not the physical person of the judge.”

In more general terms, both of the above-mentioned pronouncements refer to the most recent rulings on the subject by the European Court of Human Rights (ECtHR) and the Court of Justice of the European Union (CJEU): the former, in ruling Gudmundur Andri Astradsson v. Iceland of 1.12.2020[37], stated “That the violation by a “judge” of provisions of domestic law governing the constitution and jurisdiction of judicial bodies entails in principle a violation of Article 6 § 1“, thus recognizing the relevance of the principle and claiming that the European Court has jurisdiction to decide on compliance with the relevant rules of domestic law. Nevertheless, the Strasbourg Court still recognized that “in light of the general principle that it is primarily up to the national courts themselves to interpret domestic legislation, the Court has also held that they can question their assessment only in cases where there is a clear violation of these rules“.

At the same time, the CJEU[38], aligning itself with Strasbourg jurisprudence, stated that although the right to a natural judge “guaranteed by both Article 6(1) of the ECHR and Article 47(2) of the Charter, is an autonomous right, it is nonetheless very closely linked to the guarantees of independence and impartiality arising from the two provisions in question“; on the other hand, it specified that “an irregularity committed during the appointment of judges within the judicial system in question entails a violation of the first sentence of the second paragraph of Article 47 of the Charter, particularly when such irregularity is of such a nature and seriousness as to generate a real risk that other branches of power, in particular the Executive may exercise an undue discretion such as to endanger the integrity of the result to which the appointment process leads, thus giving rise to a legitimate doubt in individuals as to the independence and impartiality of the judges concerned, which is the case where fundamental norms which form an integral part of the establishment and functioning of said judicial system are in question“.

Despite the evident openings of supranational jurisprudence, in the Italian legal system-and particularly in criminal justice matters-the cone of endoprocessual relevance of the effective activation of the right to the natural judge pre-established by law in relation to the rules (primary and regulatory) on the assignment to the judge natural person is largely reduced by the text of Art. 33, Paragraph 2 of the Code of Criminal Procedure and, also, by the requirements posed by case law in the constitutionally oriented interpretation of the same. This makes the upholding of procedural exceptions in connection with erroneous assignments a kind of “legal unicorn,” in fact.

At the same time, the tenor of the aforementioned Article 7 bis does not seem to leave room for different interpretations of a general nature, insofar as it categorically excludes the configuration of any nullity of measures adopted for non-compliance with the rules on allocation.

Current prospects for reform

The desire to reform the judiciary animated the work of the Ministry of Justice and Parliament for several years, until it underwent a decisive acceleration precisely because of the facts mentioned above, with the fear on the part of some that there might be a punitive logic towards the judiciary, originating in the particular historical moment[39]. Specifically, an initial bill was already presented in 2020 by then-Minister Bonafede, which focused on reforming the SJC[40].

Later, with Minister Cartabia, it came to materialize a delegation of authority for a broader reform, which would intervene in both the ordinary judicial system and the military system (granting a longer period of two years for the latter).

Thus, in 2022, Delegated Law No. 71, which gave the government a deadline until June 21, 2023 to reform the judiciary. However, this deadline was later extended by six months, given the need for additional time expressed by the current minister to make “corrections” to the original delegation of authority[41].

The law already contains rules of immediate application, particularly the elevation of the period of effectiveness of the tables to four years. This is a change that has already been welcomed, given the difficulty that the three-year period entailed for the realization of the objectives indicated by the organizational projects of the offices and the lack of alignment with the periods of tenure of the Presidents of Courts and Sections[42].

The reform should intervene in an organic manner, revising – among others – the criteria for the assignment of managerial and semi-directorial positions according to criteria of transparency and enhancement of merit, as well as to the modification of the procedures for the evaluation of magistrates and, of course, of the procedure for the approval of the organizational tables of judicial offices[43].

Regarding the formation of these, a central goal should be to simplify and speed up the process of formation and approval, while maintaining the possibility of taking action to change them during the four-year period. The latter provision is critical to adapting the tables to the evolving needs of the offices, which require immediate and effective action for the proper functioning of the system and reasonable duration of trial[44].

In fact, a tabular system with large margins of inefficiency may not allow the proposed goals to be achieved, especially with regard to the principle of natural justice. The enabling law addresses this problem and identifies two upstream tools for improvement: one concerns, as highlighted, the simplification of table drafting, stipulating that office organizational documents, tables and organizational projects must follow standard templates established by the SJC and transmitted electronically, along with the definition of standard templates for judicial council opinions, containing only critical data. The other tool concerns the simplification of council deliberations by allowing automatic approval of tabular forecasts unless the council expresses contrary opinions within a specified period.

Some commentators advocate a broad interpretation of the concept of “critical data,” which should be based on a thorough analysis of the office’s organizational choices, assessing their ability to qualitatively improve performance[45]. In other words, judicial councils should avoid merely reporting the absence of obvious problems.

In operational terms, it would be essential to simplify the regulatory apparatus, which currently appears too complex (the table-forming circular alone consists of 271 articles), and to consider normalization based on general principles for rules and procedures, rather than repeating similar principles for each aspect of the subject matter, as well as effective procedural remedies for any violations. In addition, it would be appropriate to provide an office file that would allow all stakeholders, including users of the justice system, to have a complete view of the office’s structure and performance, including through updated online statistical data.

Such solutions could improve access to data and documents, promoting transparency in judicial organization and supporting the renewal of the judiciary, thus contributing to the overall improvement of justice and confidence in the goodness of the work of those working in it.

International context and examples from common law systems

It is also worthwhile to turn our gaze to the international context to observe different perspectives on the application of the principle of the court pre-established by law and its concrete declinations in the context of trial assignments. Interestingly, as will be seen below, these are sometimes a manifestation of the community’s confidence in its justice system.

There are numerous methods for assigning trials to judges. Depending on the court system, one can find “random” modes based on algorithms, periodic rotations, assignments based on the magistrate’s specialized expertise or the severity and complexity of the case at trial.

In particular, common law systems, supremely that of the United States, allow for an appreciation of the use of methods that introduce a greater degree of discretion for the Office in choosing the Judge.

In the federal context, for example, as is the case in our country, an attempt is made to effectively reconcile the needs for equitable allocation (in terms of workload) and cautions against possible “judge shopping”[46]. Unlike in Italy, however, there is more freedom in determining the actual manner of allocation, making the final choice fall to the chief judge.

Many offices resort to a random draw, others to a rotation of available judges.

What sometimes happens is that judges are selected for particularly complex cases who have gained specific experience and skills that make them more qualified in the subject matter.[47]

Interesting in this regard is a comparative research study that investigated the different ways in which judges are managed in six European countries: the Netherlands, Denmark, Germany, the United Kingdom (England and Wales), Italy, and France[48].

The allocation of judges and workload also differs greatly based on the characteristics of different judicial systems.

Specifically, with regard to the decision on the destination of the judge, in England and Wales this is made finally by the Lord Chancellor in agreement with the Chief Justice. In the higher courts (High Courts) transfer is possible at the request of the judge and in agreement with the Chief Justice. In France, the decision on the management of judges rests with the president of the individual judicial office through an organizational decree, which depending on the individual court may not contemplate that there is always a clear division between criminal and civil jurisdiction.

The use of establishing special task forces to deal with heavy workloads in certain courts or matters is also widespread. In France it was mainly to deal with immigration-related cases, in the Netherlands to clear the backlog, and in England and Wales to relieve the overload of specific courts.

The allocation of individual trials, however, varies widely, partly based on the relevance of this operation to the national system. In fact, the principle of the natural judge is not always regarded as a constitutional right as it is in Italy (albeit with the limitations that will be said, precisely in relation to the natural person judge). Indeed, among the countries surveyed, only Germany has constitutionalized a similar principle (of the judge subject only to the law[49]).

In Denmark, the assignment is formally the responsibility of the President of the Office, but in practice this is done by an automated system or by clerk’s office staff according to a “random” criterion. Germany, on the other hand, resorts to decisions of its local judicial council made annually in a process that lasts a few weeks. In France, by contrast, responsibility falls solely on the office manager, with no apparent external control. In the Netherlands, likewise, an even more decentralized system can be observed, in which the coordinators of the individual sections make the final allocation, with the assistance of the chancelleries.

Only in Germany, moreover, is the possibility of disciplinary intervention similar to that in Italy found in the case of deviation from what the Judicial Council determines for assignments.

What is predictably common to all the countries examined is the priority given to the best possible balance of workloads among judges. What is surprising, however, is that in many cases there is no use at all of a system of weighting the load arising from each individual trial (England and Wales, the Netherlands, Denmark with the exception of Copenhagen).

Curiously enough, the “informal exchange” of cases between judges is also common in the latter: should needs arise from workload or questions of expediency, it is possible for one judge to transfer the case to a colleague without any special formalities or external controls.

In general, where in Italy, Germany or France there is fairly consistent adherence to the allocation rules, in other countries there is considerable flexibility determined by contingencies.

This division is also seen in the level of detail and rigidity of the rules concerning incompatibilities and subsequent abstention of magistrates.

Germany and Italy, on the one hand, and England and Denmark, on the other, appear to be the extreme manifestations of two different manifestations of two different approaches with respect to mechanisms to guard the independence and impartiality of judges. In fact, where the former have felt the need-perhaps for historical reasons-to extrinsicate these principles in well-defined procedures, the latter see these principles as inherent and implicit in the very nature of judges, with a greater focus on aspects of organizational efficiency rather than on guaranteeing (un)constitutionalized rights.

Distrust of the system

In the Italian legal system, the relationship between the “tabular system” and the principle of the natural judge is pervaded by a dual soul.

For one thing, the constitutional guarantee is the basis on which the judiciary bases its work of certain, guaranteed and consistent allocation of affairs within individual judicial offices.

This need is complemented by the needs for the internal independence of individual judges and, likewise, the need for refinement of the administration of justice, in terms of resource allocation, efficiency and, in general, good performance of the administration itself. And it is in this direction that the most recent reform projects seem to be moving.

On the other hand, on the other hand, the law and even more so the jurisprudence does not embrace the more guaranteeing and constitutionally oriented view of the tabular assignment rules, ruling out the possibility that the actual holders of the right to the natural judge can in practice, except in exceptional cases, take action to have their prerogative protected, where disregarded.

In addition to this, the absence of a shared and stable transparency of the model tables adopted by individual judicial offices prevents, in any case, a verifiability of the specific rules adopted, thus making it difficult for the parties to a proceeding to find themselves even in the condition of recognizing and identifying the existence of a violation of the tables themselves (even in those hypotheses of relevance accepted by case law because they are extra ordinem and connoted by misuse).

This “paradox” leads, inevitably, to a progressive disinterest of citizens -end recipients of the concrete effects of these rules- in the rules that oversee the proper distribution of trials at individual offices and, consequently, the certain identification of the judge who will decide the fate of a dispute. Trivially, why should one bother to know a rule that one will have difficulty identifying and, where disregarded, will have no recourse whatsoever for the procedural party on whom it affects?

As a result, the debate on the perfectibility of the tabular model (and its concrete application) is increasingly the exclusive concern of magistrates, who are (legitimately) concerned with improving the administrative organization of the exercise of judicial power; on the other hand, there is no appreciable desire to implement the transparency and publicity of the allocation systems, if only because any violations are constantly relegated – pronouncement after pronouncement – to a disciplinary dimension of “mere administrative offence,” internal to the judiciary itself.

This condition, moreover, risks exacerbating the general distrust of individuals in the functioning of the justice system, whose rules, in addition to their (physiological and pathological) inefficiencies and elephantine complexities, are increasingly perceived as distant, inaccessible and self-referential.

Well, the status quo photographed in this way does not originate from specific responsibilities on the part of individual actors in the justice system, but is the result of the apparent semantic uncertainty that seems to pervade the entire subject matter, which concerns the “boundaries” of the principle of the natural judge pre-established by law and its applicability (or not) also to the judge-person.

By clearly sanctioning an extension of this principle to the individual judge as well, a virtuous mechanism could be operated, whereby the individual’s right to the natural judge would be given new centrality not only in relation to the rules of jurisdiction relating to the judge-office, but also to the rules of assignment to the judge-individual.

Moreover, bringing within the procedural system the verifiability and possibility of intervention on assignments would not entail any injury to the autonomy of the judiciary. Instead, there would be a restitution to the citizen of a right that has always belonged to him and that – more or less consciously – has been compressed if not taken away, shielding itself behind the albeit legitimate needs of management efficiency.

“Power, without transparency, is no longer independent but more at risk of deviance and certainly does not engender trust in those subject to that power.”

Prof. Avv. Roberto De Vita
Avv. Antonio Laudisa
Avv. Marco Della Bruna

References

[1] For further discussion of the phrase “natural judge pre-established by law,” see Constitutional Court no. 29 of 1958, in which the Court recognized that the two expressions constitute for all intents and purposes an endiad.

[2] Cf. Circ. n. 7671, 14.05.1968.

[3] See note 1.

[4] Article 6 ECHR: “Every person is entitled to a fair and public hearing within a reasonable time, before an independent and impartial tribunal constituted by law, for the purpose of the determination both of his civil rights and obligations and of the merits of any criminal charge brought against him. (…)”

[5] Article 47 EU Charter of Fundamental Rights: “(…) Everyone has the right to have his or her case heard fairly, publicly and within a reasonable time by an independent and impartial judge, pre-established by law. (…)”

[6] “In the current textbook, until the eve of the entry into force of the “new” Article 111 Const. the reference to Art. 25, paragraph 1, Const. as the primary source of protection of the guarantee of the judge’s impartiality: the principle of the natural judge pre-established by law, it is noted, aims to guarantee the presence of an impartial judge in the individual trial.” (F. Zambuto, By whom are we judged? The natural judge pre-established by law between impartiality, third party and capacity, Right Path, January 15, 2016).

[7] R. Romboli, The natural judge. Study on the meaning and scope of the principle in the Italian constitutional system, Giuffrè, 1981.

[8] Article 71 Albertine Statute: “No one can be diverted from his natural Judges. Therefore, no extraordinary Tribunals or Commissions may be created..”

[9] Article 102 Constitution: “The judicial function shall be exercised by ordinary magistrates established and regulated by the rules on judicial system .

No extraordinary judges or special judges may be established. Only specialized sections may be established in ordinary judicial bodies for certain matters, even with the participation of eligible citizens from outside the judiciary.

The law regulates the cases and forms of direct participation of the people in the administration of justice.”

[10] S. Rovelli, Actionability of the Right to Natural Judge, Rule of Law and the Dignity of the Judicial Order, in Consulta Online, 2022, Ph. II, pp. 603, note no. 18, according to which the subsequent interpretive process of Art. 25(1) of the Constitution has led to a limitation of the absolute character of this principle, highlighting the need for a balancing of this requirement with those of continuity and readiness of judicial functions (cf. Const. court sent. n. 146 of 1969, taken up in Const. court sent. n. 272 of 1998, in which it stated that it is necessary to “balance the objectivity and impartiality of judgments with the requirements of continuity and readiness of judicial functions.”

[11] Cfr. Constitutional Court no. 502 of 1991.

[12] M. Chiavario, Criminal Procedural Law, Utet, Milan, 2009.

[13] Cfr. S. BARTOLE, Independence of the judge (general theory), in Enc. Jur. Treccani, Rome, 1989, XVI, 1 et seq.; R. ROMBOLI, Theory and practice of the principle of judicial preconstitution, in Jur. Const., 1992, 3268. With respect to the rulings of the Constitutional Court cf. A. AGRÒ, N. LIPARI, The jurisprudence of the Constitutional Court., in Quaderni del C.S.M., no. 66, Rome, 1993, 199 ff.; G. FILIPPO, The fair judge between the Constitution, the European Convention and the tabular system, in Dir. pen and Process, 2004, 12, 1523; M. SMIROLDO, The constitutional guarantee of the judge pre-established by law in judgments before the Court of Auditors, in Riv. C. conti, 2006, 6, 245 ff.

[14] G. Foschini, Judges in the name of the people, not already commissioners of the head of the Court, in Foro Italiano, 1963, II, p. 168.

[15] Holding, in fact, that “natural judge must mean the judicial body and not the individual member of the body itself.” See in this sense the famous Cass. pen., Sec. I, Sent. Nov. 22, 1983, No. 161727, but also more recently Cass. pen., Sec. IV, Sent. July 16, 2009, No. 35024.

[16] In particular, in judgments no. 272 and 419 of 1998.

[17] P. Villaschi, The principle of pre-established natural judge in accounting jurisdiction, Journal of the Pisa Group, 2021.

[18] Criminal justice monitoring – years 2003 – I quarter 2023.

[19] Art. 105 Constitution: “Itis up to the Superior Council of the Judiciary, according to the rules of the judicial system, to make appointments, assignments and transfers, promotions and disciplinary measures with respect to magistrates.”

[20] For a summary of the case see https://www.internazionale.it/notizie/2021/09/23/palamara-scandalo-csm. For further study, cf. A. Sallusti, L. Palamara, The system. Power, politics business: secret history of the Italian judiciary, Rizzoli, 2021.

[21] https://ilprocessocivile.it/articoli/news/il-consiglio-di-stato-annulla-le-nomine-dei-vertici-della-corte-di-cassazione

[22] For an excursus on the topic, S. Rovelli, Actionability of the Right to the Natural Judge, Rule of Law and the Dignity of the Judicial Order, in Consulta Online, 2022, Phases. II, pp. 600, note no. 5, in which R. Romboli, S. Panizza, Judicial Order, in Digest of Public Disciplines, Vol. X, Utet, Turin, 1995, 371.

[23] S. Rovelli, Actionability of the Right to Natural Judge, Rule of Law and the Dignity of the Judicial Order, in Consulta Online, 2022, Ph. II, pp. 601, note no. 7, which recalls G. Pino, Il costituzionalismo dei diritti, Il Mulino, 2017, p. 63 and recalls that the expression was introduced into the Italian debate by R. Guastini, Rights, Distinguendo. Studies in theory and metatheory of law, Giappichelli, 1996, pp. 142.

[24] S. Rovelli, Actionability of the Right to Natural Judge, Rule of Law and the Dignity of the Judicial Order, cit. p. 601

[25] G. Scarselli, The tabular system as seen by a layman, Questione Giustizia, 2014, para. 6.

[26] Const. court, no. 173, 2.12.1970.

[27] Royal Decree Jan. 30, 1941, no. 12.

[28] According to G. Lattanzi, The principle of judicial preconstitution in the criminal jurisprudence of the Supreme Court, in Quaderni del Consiglio Superiore della Magistratura, no. 66, 1993, p. 206, has always been considered a true “test case” of the protection of an individual party to a proceeding’s right to his or her own natural judge pre-established by law.

[29] S. Rovelli, Actionability of the Right to Natural Judge, Rule of Law and the Dignity of the Judicial Order, cit. p. 607.

[30] Const. court no. 419 of 1998.

[31] Const. court no. 419 of 1998.

[32] Const. court no. 419 of 1998.

[33] For an extended discussion, see S. Rovelli, Actionability of the Right to Natural Judge, Rule of Law and the Dignity of the Judicial Order, in Consulta Online, 2022, Phrase. II, pp. 612.

[34] Cass. Sez. I n. 27055, 7.05.2003.

[35] Cass. Sez. IV, no. 32899 dated.8.01.2021.

[36] See judgment for an extensive survey of the jurisprudence of the ECJ and the CJEU on the subject.

[37] Also anticipated by previous pronouncements of the same court, such as EDU Court, July 8, 2014, Biagioli v. San Marino, §§ 72 to 74, EDU Court, May 2, 2019, Pasquini v. San Marino, §§ 100 and 101 as well as the case law cited therein.

[38] CJEU, Grand Chamber, Feb. 22, 2022, Joined Cases C-562/21 PPU and C-563/21; CJEU, Mar. 26, 2020, Simpson v. Council Review

[39] G. Campanelli, S. Panizza, Some first-reading observations on the 2022 reform of the judiciary, between novelties and still open issues, AIC Constitutional Observatory, Fasc. 1/2023.

[40] “Bill delegating to the government the reform of the judicial system and the adjustment of the military judicial system, as well as provisions on the system, organization and discipline, eligibility and reinstatement of magistrates, and the establishment and functioning of the Superior Council of the Judiciary” (ddl AC 2861 of Sept. 28, 2020).

[41] https://ilmanifesto.it/ordinamento-giudiziario-slitta-la-riforma-cartabia

[42] F. Vigorito, Judicial judicial office tables and management programs in the “Cartabia project”. The opportunity for change, Justice Matters, 2-3 2022.

[43] In addition, there would be a restriction on the ability to move from adjudicative to prosecutorial functions and vice versa, limiting it to a single move to be made within the first 9 years of entering the role and, after that period, to one time only as long as one of the originating or transferring roles is not in the criminal field. In fact, they would be possible-after the first 9 years had passed-only:

– transition from adjudicative to prosecutorial functions, provided that the person concerned has never held criminal adjudicative functions;

– transition from prosecutorial functions to civil or labor adjudicative functions in a judicial office divided into chambers, provided that the magistrate is not, even as a deputy, in criminal or mixed adjudicative functions.

[44] Art. 2 para. 2 of the enabling act indicates the parameters on which the procedure is to be based, and in particular in sub-paragraph a, it indicates that:

“(a) to provide that the president of the court of appeals shall transmit the tabular proposals accompanied by general organizational documents, concerning the organization of resources and the planning of objectives for the proper functioning of the offices, including on the basis of the assessment of the results achieved in the previous four-year period; to provide that these documents shall be prepared by the heads of the judicial offices, after consultation with the head of the corresponding prosecuting office and the president of the Bar Council; to provide that the above-mentioned documents may be amended during the four-year period also taking into account the programs of annual activities, (…), and programs (…);

(b) provide that general organizational documents of offices, tables and organizational projects shall be prepared in accordance with standard templates established by resolution of the Supreme Judicial Council and transmitted electronically; also provide that opinions of judicial councils shall be prepared in accordance with standard templates, containing only data concerning critical issues, established by resolution of the Supreme Judicial Council;

(c) Simplify the procedures for the approval of the office organization tables provided for in Article 7-bis of the Judicial Order, Royal Decree No. 1941 of January 30, 1941. 12, and the organizational projects of the prosecutor’s office, providing that the proposed office organization charts and organizational projects of the prosecutor’s office and amendments thereto shall be deemed to be approved, if the Superior Council of the Judiciary does not express an opinion to the contrary within a time limit set on the basis of the date the opinion of the judicial council is sent, unless comments have been submitted by the magistrates of the office or the opinion of the judicial council is by a majority.”

[45] F. Vigorito, Judicial judicial office tables and management programs in the “Cartabia project”. The opportunity for change, cit.

[46] A. Botoman, Divisional judge shopping, Columbia, 07.2018.

[47] https://www.iand.uscourts.gov/content/how-are-federal-judges-assigned-cases

[48] https://cadmus.eui.eu/bitstream/handle/1814/7713/EJLS_2007_1_2_12_FAB_EN.pdf?sequence=1

[49] Art. 97, Section I, Grundgesetz:

“1. Judges are independent and subject only to the law.

2. Career judges permanently placed on the rolls may not against their will be relieved before the expiration of their period of service, nor may they be suspended from their office for an indefinite or definite period of time or be transferred to another office or retired, except by virtue of a judicial decision and for the reasons and in the manner prescribed by law. Legislation may set age limits, upon reaching which judges appointed for life are retired. In the event of a change in the order of the courts or their districts, judges may be transferred to another court or removed from office, but only on condition that they retain their full salary.”

Prof. Avv. Roberto De Vita will deliver a lecture today at the “Piersanti Mattarella” School of Criminal Execution of the Department of Penitentiary Administration (DAP) entitled“Criminal Justice: between analog system and digital society.”

Prof. Avv. Roberto De Vita, director of the Justice Department of Eurispes, moderated the conference “Prison islands:history, actuality, perspectives,” organized byEurispes at the Giallombardo Hall of the Court of Cassation.

Speakers included the Minister for Civil Protection and Maritime Policies, Sen. Nello Musumeci, Deputy Minister of Justice, Sen. Francesco Paolo Sisto, member of the Justice Commission of the Chamber of Deputies, Hon. Debora Serracchiani, Head of the Department of Prison Administration, Dr. Giovanni Russo, President of Eurispes, Gian Maria Fara, and President of Eurispes on Insularity, Prof. Aldo Berlinguer.

See the original poster on Eurispes

Prison islands

history, current affairs, perspectives

Wednesday 20 September 2023

Aula Giallombardo – Corte di Cassazione g.c.

Rome, Piazza Cavour

Conversation on the book

Prison islands. Geography and history, by Valerio Calzolaio,

published by Gruppo Abele

15,30

Greetings

Prof. Gian Maria Fara

President of Eurispes

16,00

Institutional greetings and interventions

Sen. Nello Musumeci

Minister for Civil Protection and Sea Policies

Sen. Francesco Paolo Sisto

Vice Minister of the Justice Ministry

Dott. Giovanni Russo

Head of the Department of penitentiary administration

On. Simonetta Matone

Magistrate, component Justice Commission, Camera dei Deputati

On. Debora Serracchiani

Lawyer, component Justice Commission, Camera dei Deputati

Moderator:

Prof. Avv. Roberto De Vita

Director of the Department of Justice of Eurispes

17,30

Roundtable

Introduced and moderated by:

Prof. Avv. Aldo Berlinguer

Professor of Comparative Law at the University of Cagliari and President of the Eurispes Observatory on Insularity

Intervene:

Dott. Raimondo Ambrosino

Mayor of Procida

Dott. Luciano Cafiero

Vice mayor regent of Tremiti islands

Prof. Luca Foresi

Director of the Museum of Geological and Architectural Sciences of the island of Pianosa

Dott. Massimo Mulas

Mayor of Porto Torres

The author concludes:

Dott. Valerio Calzolaio

Journalist, writer

For more information ufficiostampa@eurispes.eu

There is a widespread tendency to blame the victim for sexual assault related to alcohol or substance abuse, whereas, on the contrary, the judgment of responsibility should concern only those who perpetrated it and the social context that has encouraged (or not prevented) its occurrence. Still, this mentality infects even the classrooms of justice, where unacceptable cases of “secondary victimization” continue to occur, which have exposed our country to harsh censorship by the European Court of Human Rights.

The consumption of alcohol and drugs has taken on a decisive role in the daily dimension of people, especially the youngest, as an element of “socially accepted” conviviality. There is, however, an increasingly close relationship between the use/abuse of drugs and alcohol and the increase in violence that has become the subject of much research over the last decade. The phenomenon has been further intensified during the recent pandemic, also due to the increase of the c.d. “alcohol marketing”[1], which has been combined with increasing ease in the availability and consumption of drugs. This has increased the acceptability of their consumption, with the onset at an early age of abuse behaviors that, in most cases, result in acts of violence, especially sexual.

Where awareness-raising and cultural growth (as primary means of prevention) are not enough, the criminal law is called upon to intervene, which does not always prove to be suitable to meet the needs of protection of victims. Violence, in fact, is becoming increasingly difficult to clearly frame in abstract cases that are sometimes obsolete or are sometimes distorted through certain moralizing lenses of our judicial system.

The connection between substance use and the increase in violent behaviour

A recent study by the American Addiction Centers[2] highlighted how drug and alcohol use is present in cases of domestic abuse in a percentage ranging from 40% to 60%; every year about 300,000 victims report attacks by people under the influence of alcohol and, In 2016 alone, alcohol caused around 90,000 deaths as a result of domestic violence around the world. In addition, in the United States alcohol plays a key role in 32% of murder cases.

Alcohol consumption, in particular, is related to the increase in violent behavior, much more than other substances. In fact, although intoxication by alcohol – whether in the aggressor or the victim, or both – is not necessarily the sole and exclusive cause of violence, it can significantly increase the risk of this happening. Research has found among the common causes an increase in disinhibition (alcohol encourages behaviors that, normally, would be repressed, acting on the areas of the brain that control impulses) or the c.d. “alcohol myopia” (or the narrowing of the individual visual focus with consequent misperception of reality)[3]. In addition, alcoholic substances affect cognitive processes, affecting the ability to control rabies, to react appropriately to situations, as well as predict the consequences of their behavior (c.d. “here-and-now focus”)[4].

World Health Organization (WHO) latest global report[5] highlighted, in 2018, how alcohol was consumed by more than half of the population in three regions (Americas, Europe and the Western Pacific); worldwide, more than a quarter (26.5%) of all 15-19 years old were “current drinkers” (about 155 million adolescents)with higher prevalence rates among 15-19 year olds in the European region (43.8%), followed by the Americas (38.2%) and the Western Pacific region (37.9%). In all regions of the WHO, women “drinkers today” were fewer than men. Moreover, a quarter (25.5%) of all alcohol consumed in the world was unregistered, that is, not considered in the official national statistics on taxation or sales, as it is usually produced, distributed and sold outside the official channels. All over the world, 44.8% of the total alcohol recorded was consumed in the form of spirits, the second most consumed drink was beer (34.3%) followed by wine (11.7%).

While previous studies focused mainly on the role of alcohol in street violence (predominantly male-on-male), in recent years there has been a greater focus on episodes of violence in the family and in intimate relationships, including sexual assault. Studies on the involvement of alcohol in the perpetration of sexual assaults by young males found a strong connection: a survey in 10 countries of Central and Southern Europe found that both sexual aggression and sexual victimization are associated with drinking in combination with sex, with higher rates in males than women[6].

The situation has changed significantly following the COVID-19 pandemic, where there has been a significant increase in the spread and use of alcohol, especially in the younger population, because of the different strategies used by the digital market. According to a 2021 WHO report[7], digital platforms have quickly become a powerful marketing tool for alcoholic beverages, in line with the widespread shift from traditional to digital marketing contexts. Through a constant and systematic data collection, in fact, digital platforms collect information about individuals that are used to target individual users and influence consumer preferences, attitudes and behaviors. The digital ecosystem exposes people to alcohol advertising, identifies people most likely to buy and consume alcohol – often those most at risk of developing alcohol use disorders – and turns users into vulnerable targets. Research indicates that those who consume more alcohol may be more susceptible to such strategies; among these the most vulnerable are children and young people, whose early exposure to alcohol marketing increases the chances of reporting permanent harm[8].

In any case, alcohol is not the only substance of abuse linked to the increase in violent behaviour: as noted by the WHO, it is often associated with the consumption of narcotic and psychotropic substances. In particular, alcohol is often consumed before, together with or after the use of other psychoactive substances, and in addition, the comorbidity of alcohol and tobacco dependence is narrow and well documented; there is, then, a frequent association of alcohol consumption with opioid use, benzodiazepines and with cannabis intake[9].

Substance abuse and sexual assault

Studies have shown a number of links between substance use and the risk of sexual assault. To the increase of vulnerability that derives, in fact, is added in most cases a condition of c.d. incapacitation: the effect of the substances can lower the inhibitions and the level of attention, putting at risk the ability to recognize dangerous situations and make informed decisions; in some cases, attackers may use drugs or alcohol to make victims unable to resist or protect themselves from sexual assault. This practice is often referred to as “drug-assisted rape” or “induced rape”. The use of substances can also lead people to participate in high-risk situations or to frequent dangerous environments, increasing the likelihood of becoming victims of sexual violence.

Research has shown that in at least half of all sexual assaults between acquaintances there has been alcohol consumption by the author, the victim or, more commonly, both.[10]. Alcohol consumption can increase the risk of sexual violence through both physiological and learned effects, or expectation. On the one hand, in fact, the c.d. “alcohol myopia” can lead the victim to focus attention on prevailing social signals (fun, greater disinhibition in social relationships etc.) rather than on those of ambiguous and less evident risk: in the absence of the alarm that would normally arise from recognizing the risk, a woman may not feel the anxiety or fear that would motivate her to move away from a dangerous situation. On the other hand, expectations about the effects of alcohol could indirectly increase the risk of sexual violence by motivating a woman to drink excessively to experience the beneficial effects commonly associated with drinking (especially in convivial settings) or increasing her belief that alcohol makes her “socially” more acceptable.

Alcohol can also play a key role in the consequences of sexual assault, whether or not it occurred after drinking. Drinking to cope with trauma can lead to alcoholism and increase the risk of being victimised again. One of the most frequent problems is self-discovery: if a woman feels somehow responsible for sexual assault because she had taken alcohol, she may be less willing to denounce the violence, thus making it much lower the probability of receiving the necessary help to deal with all its consequences. This could also cause phenomena such as dissociation or a strong feeling of powerlessness, which could make you more vulnerable in the event of new aggression. Finally, as child sexual abuse can lead to alcoholism problems as an adult, women who have suffered this trauma have a higher risk of being victimised again and suffering from PTSD[11] and the negative consequences of alcohol dependence[12].

L’alcol, infine, può aumentare l’effetto di alcune sostanze stupefacenti usate dagli aggressori per facilitare una violenza sessuale. The most common are the Rohypnol, the GHB[13], the GBL[14] and ketamine, which all have sedative effects and impaired memory of the victim[15]. These medications are typically odorless, colorless, and tasteless when placed in a drink, with the exception of GBL, a bitter-tasting substance that can easily be masked by strong-tasting beverages. Within 30 minutes of ingestion, the person may have difficulty speaking or moving and may faint, becoming vulnerable to assault. Moreover, because of the effects of the drug, the victim may have little or no memory of the events, and for this reason many victims do not report or report to others what happened to him.

Sexual assaults and specific context: university and military environments

The analysis of the relationship between sexual assaults and alcohol or drug use has focused on specific contexts, where certain environmental or social factors could play a decisive role.

One of these is represented by the university world, where at least 50% of sexual assaults are linked to alcohol use[16]. A research conducted in 2021[17] by the UK Healthy Universities Network, in collaboration with UK universities and the Office for Students found that alcohol and drug use is relatively common among higher education students. Drinking alcohol and taking drugs is part of the experience of freshmen, many of whom live away from home for the first time.

A quarter of the students interviewed by the Higher Education Policy Institute (HEPI) said they had taken illegal drugs in the previous year. 76% of respondents in a 2018 National Union of Students (NUS) survey on alcohol consumption said that students are expected to drink to get drunk[18]. In addition, “Everyone’s Invited“, a website where victims of sexual violence can share their stories anonymously, contains frequent mentions and specific stories of alcohol and drugs in user-shared testimonials[19].

The study also reports that full-time students are more likely to suffer sexual assault than all other occupational groups[20] and, from surveys conducted by the association Brook[21], it emerged that at least 50% of women reported having suffered unwanted behaviors (cat calling, chases, sexual conversations and explicit messages, inappropriate physical contacts or non-consensual sexual intercourse[22]) and 62% of students or recent graduates have suffered sexual violence[23]. However, only 5% of women who have had inappropriate physical contact and 3% of those who have received unwanted explicit sexual messages have reported it. In addition, 53% of respondents confirmed that they had suffered unwanted sexual behavior from other students, and 30% of the incidents occurred on a campus. Finally, women are much more likely to become victims of such behaviour than men (49% against 3%)[24].

As for the relationship between alcohol and consent, only 52% of the students interviewed are aware that it is not possible to give consent when you are drunk[25]. 90% of students feel confident in saying no to unwanted sexual advances, however, 52% of those who are not reported fearing that their refusal could lead to violence[26].

Recently, similar considerations have also arisen in the military context, especially in the USA. And in fact, although no specific research has been conducted in scientific literature that has examined the correlation between the use of alcohol (both by the aggressor and the victim) and sexual assaults involving US military personnel or veterans, the constant trend of military alcohol use/abuse has prompted institutions[27] to question the issue, starting from some data already present.

A study from 2019[28] carried out on the staff of the US Department of Defense (DoD)[29] showed that alcohol was present in 62% of cases of sexual assault involving women belonging to the DoD and in 49% of cases concerning men. The target subjects of the study included active service members of the Army, Navy, Marine Corps, Air Force and Coast Guard who were below a certain rank and had been on active duty for at least five months. The answers provided showed an increase, compared to a previous survey in 2016, of all behaviors considered “sexual harassment” (sexually explicit speeches, jokes and messages, sexually significant and unwanted gestures and physical contacts, unwanted relationships), often combined with discriminatory behaviour (on a sexual or gender basis)[30].

Assessment of liability and victim’s guilt

The widespread blaming of the victim who was sexually assaulted while drunk or under the influence of drugs (regardless of whether or not this condition is voluntary) is still a hard-to-overcome bias in public opinion and, above all, in the specialized operators called to intervene. This tendency can first of all influence the way in which law enforcement or health services treat the victim, hindering his willingness to report the crime suffered, as well as seeking medical help or specific psychological advice. Similarly, the judicial process following a complaint could represent a new form of violence for the victim, which most often risks becoming the subject of judgment (and, often, of blame) in place of the true perpetrator of the violent and reprehensible conduct.

The reading of some pronouncements of recent years confirms the existence of this tendency which, like a red thread, subtly runs through the thought of part of the jurisprudence. And in fact, although the judges of legitimacy have intervened several times to affirm well-established principles on the subject of violence against women (especially that of a sexual type), it is still possible to find real stereotypes, on the basis of which some judges of merit (but not only) make their own assessments. This is despite the harsh repression of the European Court of Human Rights which, in its judgment 5671/16, condemned Italy for violation of Article 8 of the ECHR – in a sentence of acquittal against seven men accused of group sexual violence – of “a blaming and moralizing language that discourages the trust of victims in the judicial system” and for the “secondary victimization to which it exposes them“[31].

The issue is not only about the configurability or otherwise of sexual violence crimes (art. 609 bis c.p.) and group sexual assault (art. 609 octies c.p.) but, above all, in relation to the role that the use of alcoholic or narcotic substances (in particular in the victim) assumes on the valid provision of consent, as well as on the applicability of any aggravating circumstances.

With regard to consensus, despite the fact that there are still many conflicting substantive rulings[32], is settled in law[33] that consent to the sexual act should be verified at the time of intercourse, regardless of any provocative behavior earlier[34] and must remain for the duration of the same[35], so the eventual dissent not only integrates the crime of sexual violence (single or group) but precludes the recognition of the attenuating of the lesser gravity[36].

However, there are still cases in which this peaceful assumption presents margins of uncertainty. In a very recent pronunciation[37]the Court of Cassation annulled a judgment of the Court of Appeal of Turin (with which the accused was acquitted for lack of psychological element regarding multiple episodes of aggravated sexual violence and convicted only for the last fact committed in order of time)since the latter would have deduced the man’s guilt according to his guilty state of drunkenness. According to the stoats, in fact, “the alleged drunkenness is not relevant as a decisive element of guilt in the verification of consent and its permanence during the relationship“.

Different is the assessment of the state of alteration of the victim when it is discussed the possible applicability of the aggravating circumstance provided by art. 609 ter, n. 2, c.p., that is, in the case in which the violence is committed “with the use of alcoholic, narcotic or narcotic substances or other tools or substances seriously detrimental to the health of the injured person“. On this point, several pronouncements have evaluated negatively the “voluntary” intake of alcohol by the victim for the purpose of the applicability of the aggravating circumstance. Although, in fact, the judges of legitimacy agree that integrates the crime of sexual violence with abuse of the conditions of mental or physical inferiority the conduct of those who induce the offended person to undergo sexual acts in a state of psychic infirmity determined from the intake of alcoholic beverages “being the aggression to the other’s sexual sphere is characterized by insidious and devious modalities, even if the offended party has voluntarily taken alcohol and drugs, detecting only his condition of psychic or physical inferiority following the intake of the said substances“[38]this state of affairs is of varying importance for the purpose of increasing the penalty: according to the Court, the voluntary intake of alcohol by the victim excludes the existence of the aggravating circumstance, since the rule provides for the use of arms or alcohol, narcotic or narcotic drugs necessarily instrumental to sexual violence; therefore, “must be the active subject of the crime that uses alcohol for violence, administering it to the victim; instead voluntary use, yes, as seen, on the evaluation of the valid consent, but not also on the subsistence of the aggravating circumstance“[39].

Similar principles are reiterated in a 2020 pronouncement where, with articulated exegesis “literal and systematic“[40], the configurability of the aggravating factor is excluded on the basis of an alleged will of the legislator: “the reference to the “facts (…) committed (…) by the use” and the juxtaposition, alternatively, of alcoholic or narcotic substances to arms are elements from which it is reasonably inferable as, for the legislator, for the purposes of the aggravating circumstance in question, the use of such substances is seen as a means of forcing or inducing the victim to perform or undergo sexual acts and, therefore, gives rise to a different, and more serious, situation than that in which the agent “limits himself” to take advantage of an inferiority situation of the offended person”[41].

These assessments, however, do not take into account the specific context in which this “voluntary recruitment” took place. In the case of 2018, in fact, the two defendants had taken the victim to dinner and, after having induced her to drink an excessive amount of wine, they had taken her to the bedroom to undergo repeated sexual violence. Similarly, the 2020 judgment concerns a victim already suffering from a “significant psychological and cognitive deficit“[42] who, before being repeatedly abused, had voluntarily “smoked a joint“.

Well, to what extent we can say with absolute certainty that the voluntariness in taking alcoholic or narcotic substances (a joint) is such as to configure a situation of which the aggressor has only “limited himself to taking advantage” and is not part of the agent’s voluntary conduct (in the form of induction)? Moreover, it is precisely the numerous studies mentioned above that show that alcohol intake, especially in young people, is often justified in the sense of inadequacy, in the desire to overcome personal or social barriers that limit interpersonal relationships and in the desire to make them simpler through greater ease. Not to mention the cases of previous traumatic or negative experiences that could have given the victim problems of addiction with alcohol or drugs. The awareness in the head of the aggressor – even if matured at the time of the event, for example because you realize that the person in front of you is strongly inclined to drink and “let go” – often plays a fundamental role in its decision to commit violence (with the expectation of greater freedom of action), when it does not even become a pre-ordered instrument for the consummation of criminal activity.

The conscious intake of drugs should therefore take on a different importance in the evaluation of the fact, more similar to a “handicapped defense” than to a voluntary contribution to the realization of the event (the adage “she sought it”). The focus of the analysis, in fact, should be the conduct of the eventual rapist and in particular the actual consciousness and representation of the conditions of reduced (or absent) consent of the victim.

The penal system, in fact, has found itself delayed in effectively coping with the complexity of the phenomenon, which has evolved rapidly in recent years, collecting a changed social need for regulation. At the same time, the unsatisfactory ageing of certain rules has not been mitigated by court arrests, indeed censored for the tone “blaming and moralizing that discourages the trust of victims in the judicial system“[43].

In the light of the change taking place, a systematic adaptation, which is not a radical transformation, would be desirable, but that accompanies the new vulnerabilities and the relative requests for protection with sartorial precision. In this sense, it would be possible to intervene in the wake of the anti-violence reforms that have animated the legislative activity of recent years. However, it will have to follow an interpretation of the new institutions that is consistent with these changes and that does not make the attempts at regulation a dead letter, nor leave room again for inertia from cultural backwardness already stigmatized by the European Court of Human Rights.

Avv. Valentina Guerrisi
Avv. Giada Caprini

References

[1] Cfr. Global status report on alcohol and health, WHO, 2018.

[2] https://americanaddictioncenters.org/rehab-guide/addiction-and-violence

[3] https://journals.plos.org/plosone/article?id=10.1371/journal.pone.0092965

[4] https://www.ncbi.nlm.nih.gov/pmc/articles/PMC3357898/

[5] Cfr. note 1.

[6] Cfr. note 1.

[7] “Digital marketing of alcoholic beverages, what has changed?”, WHO, December 2021.

[8] https://www.ncbi.nlm.nih.gov/pmc/articles/PMC7063998/

[9] Cfr. note 1.

[10] https://vawnet.org/material/relationship-between-alcohol-consumption-and-sexual-victimization

[11] Post Traumatic Stress Disorder, cfr. https://www.epicentro.iss.it/stress/

[12] “Under the influence? Considering the role of alcohol and sexual assault in social contexts”, ACSSA – Australian Center for the Studies on Sexual Assault, n. 18/2014

[13] Gamma hydroxybutyrate.

[14] Gamma-butyrolactone, illegal precursor to GHB.

[15] https://www.campusdrugprevention.gov/sites/default/files/2021-11/DFSA.pdf

[16] https://nida.nih.gov/sites/default/files/sexualassault.pdf

[17] https://www.officeforstudents.org.uk/media/52171396-39cd-420c-b094-9aa7246d7278/the-intersection-of-sexual-violence-alcohol-and-drugs-at-universities-and-colleges.pdf

[18] https://www.nusconnect.org.uk/resources/students-alcohol-national-survey

[19] https://www.everyonesinvited.uk/read-testimonies-page-57

[20] https://www.ons.gov.uk/peoplepopulationandcommunity/crimeandjustice/articles/sexualoffencesvictimcharacteristicsenglandandwales/march2020

[21] https://www.brook.org.uk/about-brook/#story

[22] https://legacy.brook.org.uk/press-releases/sexual-violence-and-harassment-remains-rife-in- universities-according-to-ne

[23] https://revoltsexualassault.com/research/

[24] http://legacy.brook.org.uk/data/Brook_DigIN_summary_report2.pdf

[25] http://legacy.brook.org.uk/data/Brook_DigIN_summary_report2.pdf

[26] http://legacy.brook.org.uk/data/Brook_DigIN_summary_report2.pdf

[27] Rapid Review of Alcohol-Related Sexual Assault/ Harassment in the Military – Phsycological Health Center of Excellence, February 2020.

[28] 2018 Workplace and Gender Relations Survey of the Active Duty Military – OPA Report, 2019-024, May 2019, https://apps.dtic.mil/sti/pdfs/AD1072334.pdf

[29] In the study were considered on a statistical basis all members of the dod, quantified in 1,285,290 men (divided between the Army, Navy, Marine Corps and Air Force), plus 41,204 of the Coast Guard, both civilian and military, divided on the basis of gender, the salary received, the role played and the strength of belonging.

[30] 2018 Workplace and Gender Relations Survey of the Active Duty Military – OPA Report, 2019-024, May 2019, https://apps.dtic.mil/sti/pdfs/AD1072334.pdf

[31] EDU Court, section I, 27/05/2021, appeal n. 5671/16, J.L. c. Italia https://hudoc.echr.coe.int/eng#%7B%22itemid%22:%5B%22001-210299%22%5D%7D

[32] Cfr. Court of Appeal of Turin, judgment no. 2277 del 31.03.2022 (dept. on 20.04.2022), Sez. IV.

[33] Cfr. lastly, Cass. Sez. III, n. 32447 of 26.07.2023.

[34] Sez. 3, n. 7873 of 19/01/2022, D., Rv. 282834-01.

[35] Sez. 3, n. 15010 of 11/12/2018, F., Rv. 275393-01.

[36] Sez. 3, n. 16440 of 22/01/2020, S., Rv. 279386-01.

[37] Cass. Sez. III, 26.07.2023 n. 32447.

[38] Cass. Sez. III, 16.07.2018 n. 32462.

[39] Cass. n. 32462/2018 cit.

[40] Cass. Sez. III, 24.03.2020 n. 10596.

[41] Cass. n. 10596/2020 cit.

[42] Cfr. Cass. 10956/2020 cit.

[43] Cfr. Judgment CEDU 5671/16 cit.

The numerous international investigations led by the French police into Encrochat and Sky-ECC have repeatedly highlighted the issue of the use of foreign investigative tools in domestic proceedings. On the one hand, the reliability of investigation results and the review of them by defenses and judges comes into focus, and on the other hand that of legality and the compatibility of the investigative tool with due process.

The issue was brought before the Dutch Judicial Authorities again, coming before the Supreme Court of the Netherlands (Hoge Raad) in the form of preliminary questions, which were decided in Judgment No. 913 dated 06/13/2023 [1].

The case in point

In the cases under discussion, the evidence produced by the Dutch prosecutors is based mainly on (de)encrypted communications exchanged by the defendants on phones provided by the Encrochat and Sky-ECC services. Since both services made use of servers in France [2], authorities in the latter country initiated activities to intercept users’ real-time communications (tens of thousands of people) as part of a joint investigation (through the establishment of joint investigation teams, JIT[3]) that also involved the Police Force of the Netherlands.

As a result of the investigative activities, intercepted communications were shared with other foreign authorities that had directly participated or that (like Germany) became interested only later in the development of the investigation.

As has already happened in Italy or Germany, advocates of intercepted persons involved in criminal proceedings in the Netherlands have raised the question regarding the verification of the “legality” of activities carried out in France and their reliability and trustworthiness. In fact, the technical ways in which the data were obtained by the French authorities are bound by the State Secret and, therefore, were not and cannot be shared with other cooperating countries, much less cognizable by the defenses.

This constraint once again posed an extremely significant obstacle to the fullness of the right of defense and, in particular, to the exercise of cross-examination of the manner in which evidence was formed. The method of data acquisition-unknowable to the defendants-thus becomes impossible for the parties to challenge and is also removed from the Judge’s review of legality.

In this respect, in the Netherlands as well as in other countries, the prosecution’s position is based on the application of the principle of mutual trust between states in the context of investigations carried out through Joint Investigation Teams, which would make any further exploration of method and substance unnecessary.

Preliminary questions

In light of this complexity, the District Court of the Northern Netherlands and the District Court of Overjssel addressed a preliminary question to the Hoge Raad, aimed at understanding whether data extracted by the French police by an unknowable method can be used as evidence in Dutch proceedings on the basis of the principle of interstate trust.

The procedure followed to reach the Court’s ruling is the preliminary reference provided for in Art. 553 para. 1 of the Dutch Code of Criminal Procedure, according to which a question of law may be submitted to the Hoge Raad whenever the resolution is, at the same time, necessary to decide on the merits of the proceedings and the subject of an interest beyond the specific case and, therefore, relevant to more than one criminal case. Therefore, it must be a question of cross-cutting interest, which may also affect cases from other Courts in addition to the one being dealt with before the referring court.

The most important issue addressed by the Supreme Judges concerns the usability of the results of investigations carried out in other states in Dutch domestic proceedings by a JIT to which the Netherlands was a party, based on the aforementioned principle of interstate trust; whether, therefore, the recognition by the Dutch system of the foreign one allows for the assumption that the investigative procedures provided for and followed by the latter are a guarantee of a reliable result compatible with “due process.”

The (ir)relevance of Directives 2002/58/EC and 2016/680 (EU)

Another question submitted to the Supreme Court concerns the applicability to investigations of this kind of the provisions of Directives 2002/58/EC (concerning the processing of personal data and the protection of privacy in the electronic communications sector) [4] and 2016/680 (EU) (on the protection of individuals with regard to the processing of personal data by competent authorities for the purposes of prevention, investigation, detection or prosecution of criminal offences or the execution of criminal penalties, and on the free movement of such data) [5].

The ruling resolves the issue in the negative. In fact, Directive 2002/58/EC imposes retention requirements for electronic communications data (e.g., traffic or location data) to be made available to national authorities.

However, citing the Court of Justice of the European Union, the Dutch court clarified that where member states use measures that infringe on the confidentiality of electronic communications, without availing themselves of processing obligations imposed on service provider companies, this directive does not apply. Moreover, the very nature of the service offered by Sky-ECC or Encrochat meant that no personal data of users was processed, and users never had to disclose any personal data in order to make use of the platforms.

Where, on the other hand, potential relevance is recognized to the rules of Directive 2016/680 (EU), the Court dismissed the question of its applicability by deeming it irrelevant for the sole purpose of resolving the preliminary questions before it.

The limits set by the Dutch investigating judges.

However, on the subject of stakeholder protection, it is useful to mention the precautions taken in some of the national cases mentioned in the judgment. In the context of one of the operations on Sky-ECC chats, conducted instead by Dutch authorities on Dutch users, when the investigating judges (the equivalent of the Italian Judge for preliminary investigations) had to authorize wiretapping activities, they decided to strictly limit the use of the extracted data according to a proportionality test to protect the privacy of those involved and aimed at avoiding “fishing expeditions” [sic].

Specifically, information collected and decrypted could only be investigated using queries submitted to the court in advance, including: user information from ongoing investigations of criminal organizations; keywords or images that in themselves are indicative of serious criminal activity in an organized setting.
The query investigation, moreover, must be carried out in a way that can be repeatable and verifiable for the judge and the defense by obtaining the same search datasets, allowing them to see what data were used and made available for conducting the investigation. Subsequently, the results of the activity must be submitted to the investigating judge for verification of the content and scope, as well as the actual existence of indications of crime.

Particular protection is afforded to privileged communications, such as with advocates, which must be actively filtered as much as possible.

The investigating judge, moreover, must have access to the foreign (in this case French) judicial decisions underlying the data collection.

Finally, the information collected may be made available to the prosecutor’s office or judicial police for further investigation only with the permission of the investigating judge and only for particularly serious crimes or crimes committed for the purpose of terrorism.

The decision

The Court’s pronouncement, following a clear but mortifying course of argumentation toward the rights of the accused, followed a particularly favorable criterion toward the principle of interstate trust.

In fact, the ruling severely limits the possibility of domestic court scrutiny with respect to investigative activities conducted abroad-under the responsibility of a foreign judicial authority-whose results have flowed into domestic proceedings.

In particular, the trial court cannot make an assessment of whether the investigation complies with the relevant foreign domestic regulations for this type of activity, as such a screening would be a violation of the sovereignty of the third country. Moreover, if the actual conduct of an investigation occurred in violation of the rights guaranteed by the ECHR, the suspect would be protected by the possibility of bringing an appeal under Article 13 ECHR[6] in the country where the investigation was conducted.

In fact, the Court believes that the decisions of the Foreign Judicial Authorities on which the investigations are based should be respected and there is a presumption of legitimate conduct of the related activities. The only exception to this principle is in the event that an irrevocable decision has since been made in the same state that has established the existence of investigative methods that differ from the applicable regulations. Only then will the Dutch court be empowered to assess whether there are repercussions on the usability of the relevant findings in the domestic proceedings, considering the seriousness of the violation and the concrete detriment to the suspect’s rights.

Ostensibly, the Court’s reasoning is concerned with the rights of the suspect and refers to the Strasbourg Court’s jurisprudence to remind us that the ECHR does not preclude the use of foreign investigative findings in criminal proceedings as long as it does not conflict with the right to a fair trial under Article 6[7] and the trial judge ensures its “overall correctness.”

However, the attention that the deciding magistrate should pay to the legality of the investigation appears to be merely formal and abstract, an assessment of pure legitimacy that does not investigate in concrete terms the reliability of the results produced, unless there are “concrete indications to the contrary,” also pointed out by the defense.

Therefore, merely because they come from countries that participate in European judicial cooperation, investigative activities that are ostensibly and formally compatible with domestic law would not merit any further investigation; a presumption that is perhaps hazardous in practice, given the varying geometries of both the guarantees vis-à-vis the rights of defendants and the independence of the judiciary within states of the European Union itself.

Of course, in cases where there are elements of doubt about the reliability of the results of the investigation, it is possible for the Judge to make an assessment of the guarantees observed in practice – for example, in the case of the extraction of computer data, with respect to the reliability, traceability, and integrity of the data.

However, one has to wonder how a defense can identify concrete indications of unreliability on ways of conducting investigations to which it does not have access because of (albeit legitimate) foreign state regulations and measures – as in the case of the French affixing of the Secret of State on how encrypted data was extracted.

In this regard, the Court’s reasoning is unconvincing when, in affirming the fundamental nature of due process and the equality of arms between prosecution and defense in cross-examination (both on the merits and on aspects concerning procedure), it simultaneously argues that the right to knowledge of evidence is not an absolute right, but must be balanced against any competing interests, such as national security, the protection of witnesses at risk of retaliation, or the secrecy of the judicial police’s methods of investigation.

In the Court’s opinion, in fact, in order to assess whether the defense can bring certain acts into the trial and have knowledge of them, the following elements must be evaluated: whether the prosecution has made available all the computer files collected in the proceedings, the extent to which these acts may have relevance in the specific trial, and the lawfulness (evaluated as above) of the investigative process within the limits of the scope of assessment allowed to the Dutch court. Beyond the issue of relevance, it is clear that the mere availability of the data collected by the Dutch Public Prosecutor’s Office is not sufficient to scrutinize the methods of obtaining them, and the limitation placed on the national court’s assessment prevents any effective further verification. And in fact, the ruling clarifies by pointing out how any request for the acquisition of documents or for further study on which a Dutch court cannot rule can only be rejected.

In light of the arguments of the judgment under review, the repercussions of which will be seen on the decisions taken by the judges on the merits, the way in which principles of law of constitutional rank, also crystallized in the EDU Convention, are used as an abstract premise and then deprived of meaning at the time of concrete application appears worrying. Although other domestic jurisprudence (e.g., Italian) has been more cautious in the past, what should cause serious concern is that several domestic courts of legitimacy may be allowing themselves to be tempted with respect to the need to save important international police operations, systematically sacrificing on the altar of a supposedly higher national interest the fundamental rights of defendants, hollowing out due process and subordinating the procedural order not to the rule of law but to the reason of state.

Prof. Avv. Roberto De Vita
Avv. Marco Della Bruna

References

[1] https://uitspraken.rechtspraak.nl/#!/details?id=ECLI:NL:HR:2023:913

[2] In the servers of the OVH Company in Roubaix.

[3] The Joint Investigation Team is a joint investigation team governed by Art. 13 of the Convention on Mutual Legal Assistance between the Member States of the European Union dated 12.07.2000, which may be established for a limited period and with a specific purpose to carry out investigations within one of the countries that decide to establish it, https://eur-lex.europa.eu/legal-content/IT/TXT/HTML/?uri=CELEX:42000A0712(01)

[4] https://eur-lex.europa.eu/legal-content/IT/TXT/?uri=CELEX:32002L0058

[5] https://eur-lex.europa.eu/legal-content/IT/TXT/PDF/?uri=CELEX:32016L0680&from=RO

[6] https://www.echr.coe.int/documents/d/echr/convention_ita

[7] Ibid.

The expansion of cross-border crime in the European Union has led to unified action on the transfer of criminal proceedings between Member States. The European Commission, on 5 April 2023, presented proposal for a regulation no. COM/2023/185 on the allocation of justice within the EU.

The proposal stems from the need to ensure a uniform legal framework in a scenario in which, precisely because of the plurality of jurisdictions often coexisting between the various Member States, various problems arise in terms of the coordination and effectiveness of the prosecution, as well as possible violations of the rights and interests of individuals arising precisely from the duplication of procedural activities[1].

Transnational crime

Statistically, three categories of offences are distinguished, in which the characteristic of “transnationality” clearly emerges.

The first is certainly the crimes committed by organised crime groups. Criminal groups take their place in all EU countries and often operate across borders. 70% of these are active in at least three Member States at the same time [2] and the main criminal activities they carry out can be traced back to drug trafficking, migrant trafficking, money laundering and cybercrime.

The second, however, is that of common crimes with cross-border aspects: a typical example of this category are cases of online fraud or the dissemination of pornographic material, in which the offender acts causing the detrimental effects of the conduct in the territory of another State.

The last, finally, concerns small crimes committed between neighbouring countries: many European citizens often move for work or family reasons and this means that there are cases in which criminal offences are committed on both sides of the border: think of the hypothesis of who, a citizen of State A, damages an asset in the neighboring State B and then returns to their own country.

The current legal framework

Although the transfer of proceedings is often necessary, existing instruments at European level are fragmented, insufficient and do not properly balance the needs for cross-border judicial cooperation with the rights of individuals.

At present, Member States transfer criminal proceedings between themselves using different legal instruments, without uniform rules throughout the European Union.

The European Convention on the Transfer of Criminal Proceedings of 15 May 1972 certainly comes to the fore. This piece of legislation, which offers a complete and gradual procedure for requesting the transfer of proceedings and a list of criteria which may support them, was in the abstract a suitable and effective instrument, however only 13 states have ratified and applied it [3].

For this very reason, most national legal systems have opted to use an additional regulatory tool: art. 21 of the European Convention on Mutual Assistance in Criminal Matters of April 20, 1959[4].

For the latter form of cooperation, there is a much more simplified discipline, for which there is no obligation or specific procedure to be followed but, at most, a mechanism is identified through which each state can request the prosecution of a suspect who is in another convention country.

Therefore, for these characteristics, this instrument is also inadequate: it lacks a unified regulation of the transfer procedure to coordinate all member states.

In addition to these internationally intervening instruments, some states have bilateral or multilateral agreements that serve as the basis for the transfer of criminal proceedings. An example of this “domestic” instrument is the Nordic Cooperation Agreement between Finland, Norway, Sweden, Iceland and Denmark[5].

It is also necessary to consider additional regulatory institutions that, although they do not directly deal with the subject of transfer of criminal proceedings, are instrumental in ensuring adequate cooperation and harmonization between domestic systems, including in the judicial sphere[6].

These include Framework Decision 2009/948/JHA.[7], which establishes a procedure for the exchange of information and direct consultations between competent authorities in order to reach preventive solutions to regulate the allocation and contributions of investigation and prosecution, limiting the negative effects of parallel proceedings.

On more specific areas, Directive (EU) 2017/541[8] on combating terrorism and Framework Decision 2008/841/JHA.[9] on organized crime have identified criteria for centralizing prosecutions in a single state in cases where several member states are entitled to prosecute the same facts.

On the topic of coordination, the European Union Agency for Judicial Cooperation in Criminal Matters (Eurojust)[10] is in charge of facilitating cooperation in judicial matters, including resolving any jurisdictional issues. Given its role, the latter is considered in today’s proposed Commission regulation – in Art. 16 – as an auxiliary authority in the transfer procedure for member states[11].

Lastly, the institution of the M.A.E.[12] (European Arrest Warrant), within strict limits, allows judicial authorities to obtain the surrender of a person from another country of the Union for the purpose of prosecution or execution of a sentence or custodial security measure.

The new proposal

Thus, the European Commission’s April 5, 2023 proposal fits into this fragmented regulatory framework.

The legal basis for this initiative can be found in Art. 82(1)(b) and (d) TFEU, under which the Union has the competence to establish measures to facilitate cooperation between judicial or counterpart authorities of member states in relation to prosecution and to prevent and resolve conflicts of jurisdiction.

The executive body of the European Union, in doing so, makes a proposal consisting of five separate chapters.

The first chapter-“general provisions”-indicates the objective of the proposal and provides definitions of all stakeholders in the procedure. Articles 3 and 4, in particular, dictate a rule of jurisdiction for specific cases and the cases in which criminal proceedings can be waived, suspended or discontinued in favor of another member state deemed more suitable for prosecution.

Chapter Two-“transfer of criminal proceedings,” on the other hand, details the criteria and procedures for requesting or making a decision on the transfer of criminal proceedings. This part of the proposal, moreover, includes the rights and interests of the defendant in case of transfer.

Chapter Three-“effects of the transfer of criminal proceedings”-identifies the procedural and substantive consequences arising from the completion of the transaction as well as the rules applicable to the transferred criminal proceedings.

On the other hand, Chapter Four-“means of communication”-indicates the means of electronic communication between requesting and requested authorities, as well as with central authorities and “Eurojust,” again with a view to effective Euro-EU cooperation.

The last chapter-“Final Provisions”-concludes the proposal with provisions on statistics, reporting, notifications by member states, coordination between regulation, international agreements and arrangements, and transitional provisions to be applied regarding means of communication before authorities are obliged to use the decentralized information system provided therein.

From the content of the proposal, therefore, it is clear that the Commission has moved on three distinct levels in order to create a common legal framework: the creation of a specific procedure for the transfer of criminal proceedings between member states; the provision of guarantees and safeguards for suspects or defendants; and the provision of a digital channel for cross-border communications between the authorities concerned.

In practice, the procedure thus structured stipulates that the so-called “requested” state, upon the request for transfer from the so-called “requesting” state, has a 60-day deadline to decide whether to accept or reject it. If so, the requested state shall apply the discipline provided by domestic law to the crime of the transferred proceedings.

In observance of Art. 5 of the proposed regulation, the transfer can be made according to specific criteria. Examples include: the citizenship of the suspect/defendant, the pendency of criminal proceedings for the same or other facts, and the locus commissi delicti.

The European Commission’s goal

The Commission’s choice of the instrument of a regulation is certainly not accidental; as is well known, this would ensure common application of the rules throughout the Union and their simultaneous entry into force, as well as prevent divergent interpretations between one member state and another
[13] .

The identification of a common framework for the transfer of proceedings serves to ensure that the member state is in the best position to investigate or prosecute a given crime, thus preventing two possible scenarios.

First, the institution of multiple parallel proceedings for the same facts and against the same person in different jurisdictions, which could result in the violation of the ne bis in idem principle enshrined in Art. 50 of the Charter of Fundamental Rights of the European Union[14].

Second, the lack of effectiveness of prosecution, when the surrender under an E.M.A. of prosecuted individuals is delayed or refused
[15] .

The limits of a long-awaited innovation

In the absence of a unified regulatory framework and because of the different criminal justice systems in each member state, the transfer of criminal proceedings has always been subject to various legal and practical obstacles.

The introduction of specific legislation has indeed been under discussion since the entry into force of the Lisbon Treaty-December 1, 2009-and today’s proposal is among the objectives set out in the EU’s 2021-2025 strategy for combating organized crime, in relation to which the transfer of criminal proceedings assumes great significance, especially with a view to strengthening the fight against cross-border crime.

In fact, so far, the various procedures tried out have been hampered by undue delays and the lack of specific communication arrangements between the authorities involved, resulting in inefficiencies in the allocation of human and financial resources.

Differences in the systems of member states on fundamental institutions concerning criminal procedural law-especially in terms of the rights and guarantees of suspects or defendants-have often prevented advanced forms of cooperation, given the obvious legal uncertainty and the risk of insufficient protection of fundamental rights of individuals.

Approval of the regulation could provide greater legal certainty in the Union while strengthening tools for combating trans-European crime. However, balancing the needs for efficiency in judicial cooperation should never result in a compression of the fundamental procedural rights of the persons concerned. In the face of the detail with which aspects of procedural management in relations between judicial authorities of member states are declined, equal prescriptive punctuality is not found on the individual guarantees front, the proposal containing overly general statements of principle aimed at guaranteeing the “procedural rights” of the accused. Additions and amendments to the proposal will therefore be necessary so that, as has happened in the past, the fundamental freedoms of the individual do not remain abstract petitions, mortified by the punitive claim of states.

Prof. Avv. Roberto De Vita
Lawyer Maria Caponnetto

References

[1] On the relationship between conflicts of jurisdiction and transfer of proceedings see. M. Carmona Ruano, Prevention and settlement of conflicts of jurisdiction, in K. Ligeti, Preventing and resolving conflicts of jurisdiction in EU Criminal Law, Oxford University Press 2018, 119-139. M. Kaiafa-Gbandi, Addressing the Problems of Jurisdictional Conflicts, in Ciminal Matters within the EUE, EUCRIMI 2020, no. 3, 209-212.

[2] https://www.consilium.europa.eu/it/policies/eu-fight-against-crime/

[3] V. M. R. Marchetti – E. Selvaggi, The new criminal judicial cooperation, 2019, 149 ff.

[4] G. De Amicis, On the Transfer of Criminal Proceedings, in Dir. pen. proc., 2010, 1246 ff.

[5] https://www.nordefco.org/Files/nordefco-mou.pdf

[6] For a general discussion see. F. Ruggieri, Criminal process and European rules: acts, rights, subjects and decisions, 2018.

[7] In particular, the measure introduces a useful tool to prevent violation of the prohibition of ne bis in idem by providing procedural mechanisms that prevent multiple criminal proceedings before different European national authorities against the same person and in relation to the same fact.

[8] https://eur-lex.europa.eu/legal-content/IT/TXT/?uri=celex%3A32017L0541

[9] https://eur-lex.europa.eu/legal-content/IT/ALL/?uri=CELEX:32008F0841

[10] http://data.europa.eu/eli/dec/2002/187/oj

[11] For a more detailed discussion on the topic, see. G. Barrocu, Investigative cooperation in the European context – From Eurojust to the investigation order, 2017.

[12] http://data.europa.eu/eli/dec_framw/2002/584/oj

[13] Further possible options, such as a recommendation, were discarded as lacking a directly binding nature and, as such, not adequate to provide a concrete and effective solution to the problems encountered on the issue.

[14] http://eur-lex.europa.eu/legal-content/IT/TXT/PDF/?uri=CELEX:12016P/TXT&from=IT. For an analysis of Art. 50 of the Charter of Fundamental Rights of the European Union v. M. Castellaneta, Sub art. 50, in F. Pocar, M.C. Baruffi, Short Commentary on the Treaties of the European Union, 2014, 1794-1795.

[15] On the topic, see. F. Schorkopf, European Arrest Warrant, in Oxford Public International Law, June 2019; Cf. Court of Justice of the EU, April 5, 2012, C-404/15 and C-659/15 (Aranyosi & Caladararu)

Artificial intelligence is emerging as a powerful tool for combating child abuse online, which is of growing concern compared to the pre-pandemic period. The digital world, in fact, offers many opportunities for learning, entertainment and communication, but also presents serious risks for the safety of young people. Among these, the most worrying are the dissemination of images resulting from sexual abuse of minors (child sexual abuse materials, CSAM) and predatory behavior that anticipate the realization.

Online abuse

According to UNICEF, one in five girls and one in 13 children are sexually abused or exploited, and online interactions are now at the heart of almost every incident [1].

The phenomenon of online abuse, in fact, is in a sad and frightening growth and in 2022 alone recorded a peak of 32 million reports of suspected cases[2]. These include both dissemination of material on minors (such as photos and videos) and episodes of so called grooming: manipulation practices aimed at exploiting and abusing people. The latter recorded an increase of 82% of cases over the past year, of whichsextortion was the main event.

The phenomenon affects the European Union, from which comes 68% of the 2022 reports. In the face of these appalling data, there are already significant initiatives taken to combat the phenomenon: the European Commission, in particular, presented a proposal for a regulation in 2022 [3] to introduce obligations to prevent and combat all phenomena of child abuse on the Internet.

In particular, the objectives would be to ensure the detection, reporting and removal of sexual abuse of children online; to improve legal certainty, transparency and accountability and to ensure the protection of fundamental rights; reduce the proliferation and effects of sexual abuse on children through harmonisation of rules and better coordination of efforts. The latter would be ensured through the establishment of a new specialised agency: the EU centre on child sexual abuse (EUCSA).

As further proof of the increased sensitivity on the subject, the recent approvals of the Digital Services Act[4] and the AI Act[5] by the European Parliament, as well as the Online Safety Bill currently under discussion in the UK[6]: legislative initiatives stemming from the common concern to ensure the increasingly uncertain safety of users on the Internet and which could soon be followed by the adoption of the proposal for a European Regulation on the prevention and combating of sexual abuse and sexual exploitation of children[7].

Emblem of this uncertainty is also the recent decision of the Supreme Court of the United States not to resolve the dating debate on the immunity of platforms with respect to the content published by users, which will probably intervene in the coming years Congress.

However, the apparent breadth of the material to be monitored across the network does not allow for effective (or efficient) manual control by either platforms or law enforcement. For example, the only “self-produced” abuse material, that is, explicit photos and videos made by minors themselves, in 2021 grew by 374% compared to the pre-pandemic levels, making it even more difficult to operate and control non-automated[8].

The contribution of artificial intelligence

Instead, AI offers a wide range of possibilities to identify and combat child sexual abuse on the Internet. Through the analysis of digital content, in fact, it can detect suspicious images and videos, automatically detecting signals and characteristics that indicate the presence of sexual abuse. This rapid and efficient analysis capability would enable the identification and removal of illegal content in a timely manner, reducing the exposure of children to harmful images or the dissemination of material concerning them.

In fact, another field of application of AI is the prevention of online sexual abuse. Through real-time analysis of user behavior on the network, it can identify patterns and signals that may indicate a child’s interaction with any abuser. By monitoring online chats, messages, and activities, AI can detect suspicious patterns of behavior and even automatically alert parents, guardians, or security workers to take timely action to protect the child.

Collaboration between technology companies and law enforcement is also critical to ensuring the effectiveness of AI in online child protection. Companies can, in fact, develop and implement AI tools that automatically analyze content uploaded to their platforms, immediately reporting illegal or suspicious content to moderation managers and competent authorities.

The United Nations and the AI4SC project

An example of the application of AI to effectively counter child abuse online comes from the United Nations: in 2020 the United Nations Interregional Crime and Justice Research Institute’s (UNICRI) Centre for AI and Robotics and the Ministry of Interior of the United Arab Emirates have launched the project AI for Safer Children(AI4SC)[9].

As part of this initiative, the AI for Safer Children Global Hub, a centralized platform for police forces around the world designed to combat child abuse, with the ambition to derive a model for further issues related to risky material, from fake news to extremist propaganda[10].

Thus, the Global Hub provides police with a catalog of artificial intelligence tools that can be used in investigations, enabling selection with respect to specific investigative needs; offers specialized training on child abuse and the implications regarding the mental health of victims; enables networking among agencies in different countries so as to create a stronger international community of law enforcement through sharing experiences in artificial intelligence (the project has 270 investigators from 72 countries).

The need for an integrated approach

However, the use of AI for online child protection also raises important ethical issues; it is essential to ensure that AI is used responsibly and that the individual rights of users are respected[11]. Automated content analysis may involve the collection and processing of large amounts of personal data, which requires adequate information protection and security.

The AI4SC project itself is based on a specific legal and ethical strategy, based on fundamental principles[12] including a responsible approach to the purchase, development, and deployment of artificial intelligence technology so as not to compress the fundamental freedoms of individuals[13]. Likewise, the work of the investigators.[14] and tech companies[15] who cooperate with the project is guided by the principles of the 1989 Convention on the Rights of the Child[16].

Moreover, AI cannot be the only tool in online child protection. A combination of efforts among parents, educators, online safety practitioners and legislators is needed to create a safe environment for children on the Internet. Raising awareness of online threats, digital education, and promoting safe online behaviors are equally important to ensure the protection of children.

Information materials such as those disseminated by companies like Thorn[17] – including in the context of the many phenomena of non-consensual pornography-can allow a safer approach for minors (and their parents) to their inevitable online lives. These can be usefully complemented by CSAM identification and prevention tools that are easily accessible to private platforms or police forces and have already had a significant impact.

The private Safer software, for example, boasts identification of one million cases and makes available to its users a database of 32 million hash codes
[18] identifying abuse materials already identified on the network by other programs as well
[19] .

The use of artificial intelligence for online child protection and countering the dissemination of images resulting from sexual abuse is thus already proving to be an important development in the field of digital safety.

However, it is crucial to reiterate the need for ethical employment, which ensures the protection of the individuals subject to the controls and the security of the personal data processed. Therefore, through effective (digital) collaboration between web platforms and law enforcement, on the one hand, and proper training on online life, on the other, it will be possible to achieve a safe online environment for minors, enabling them to take advantage of the benefits of technology in a protected manner.

Prof. Avv. Roberto De Vita
Avv. Marco Della Bruna

References

[1] M. Grzegorczyk, The AI for Safer Children initiative – a collaboration between the UN Interregional Crime and Justice Research Institute’s Centre for AI and Robotics and the Ministry of Interior of the UAE – is helping law enforcement agencies tap into the potential of AI, UNICRI; UNICEF, Children from all walks of life endure violence, and millions more are at risk.

[2] For an in-depth look at the evolution of data from 2020 to 2022:
CyberTipline 2022 Report
.

[3] European Parliament,
Combating child sexual abuse online
.

[4] European Commission,
The package on the digital services law
.

[5] The text of the proposal approved by the European Parliament: https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=celex%3A52021PC0206

[6]
Online Safety Bill
.

[7] European Commission,
EU Strategy for a more effective fight against child sexual abuse
.

[8] Internet Watch Foundation,

‘Self-generated’ child sexual abuse prevention campaign

.

[9] UNICRI,
AI for Safer Children
.

[10] UNICRI,
AI for Safer Children Global Hub
.

[11] It was precisely concerns about the risks posed by the use of artificial intelligence that recently led to the passage of the much-cited AI Act.

[12] AI for Safer Children,
The core principles of the AI for Safer Children initiative
.

[13] The framework for this approach is the United Nations Guiding Principles on Business and Human Rights.

[14] UNICRI,
Terms of engagement for law enforcement users
.

[15] UNICRI,
Terms of engagement for tech providers
.

[16]
Convention on the Rights of the Child
.

[17] Thorn,
2022 Impact Report
.

[18] An alphanumeric code that uniquely identifies a particular file and from which the original file cannot be reconstructed. For more, see https://www.ionos.it/digitalguide/server/sicurezza/funzione-di-hash/

[19] Safer,
How it works
.

The U.S. Supreme Court has been asked to rule on the liability of computer service providers (such as social media and other online platforms) for content posted by their users. The issue, known overseas as“internet liability,” has been the focus of heated debate for years, and the Court’s intervention helps highlight the need for organic reform in the U.S. legal system.

At the center of the issue is Section 230 of the Communications Decency Act 1996[1], which has over the past three decades provided a kind of immunity to online platforms for user-generated content: if a user posts offensive, defamatory, or otherwise illicit content on a platform, in fact, the platform cannot be held liable for it.

Despite the high expectations placed on the pronouncement in the case Gonzalez v. Google, the Supreme Court chose not to intervene directly on the rule’s applicability to the complex dynamics of algorithms that select content based on users’ tastes. On the contrary, she expressed institutional discomfort at being asked to rule on an issue that would finally require congressional action.

However, in the judgment issued at the same time in a related case (Twitter v. Taamneh), the Justices offered interesting insights into the liability profiles of platforms for activities carried out by users – albeit under the different legal profile of aiding and abetting terrorism.

Section 230 of the Communications Decency Act

In the 1990s, the Communication Decency Act initially threatened to become a gag on the very young Internet, still largely lacking any kind of regulatory embankment. The U.S. legislature, in fact, had felt the need to fill this gap by extending regulations on “obscene and indecent”[2] communications aimed at minors under 18 and on the prohibition of distribution of “patently offensive” materials that were also available to minors under 18.

Originally, the dominant concern with respect to content available on the Internet was about uncontrolled access to pornography by minors. In the early stages of the legislative process, in fact, no particular attention had arisen toward the possible repercussions on web operators.

In contrast, the origin of the amendment that introduced Section 230 is to be found in two decisions made by New York judges during those years.

In the first one, Cubby, Inc. v. CompuServe (1991), it was argued that CompuServe could not be held liable for defamatory comments posted in one of that company’s forums because it did not review the content before it was posted, but merely hosted it on its platform.

In 1995, however, in Stratton Oakmont, Inc. v. Prodigy Services Co. the conclusion was different: because Prodigy carried out moderation activities on its online message boards and deleted certain messages for “offensiveness and bad taste,” it was argued that it could be held liable for content posted on its platform.

Two Republican representatives in Congress, Ron Wyden and Chris Cox, therefore proposed an amendment to exclude the liability of providers for content posted by users, even if moderation activity was carried out on the platform.

“No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider.”[3]

According to some U.S. authors[4], the foundation for the development of the mammoth American web industry was laid on these 26 words.

In addition, Section 230 also provides that “No provider or user of an interactive computer service shall be held liable for

(A) any action voluntarily taken in good faith to restrict access to or availability of material that the provider or user deems obscene, lewd, filthy, excessively violent, harassing, or otherwise objectionable, if such material is constitutionally protected; or

(B) any action taken to enable or make available to information content providers or others the technical means to restrict access to the material described in the paragraph.” [traduzione a cura dell’autore].[5]

Thus, both possible interpretations with respect to the active or passive actions of ISPs toward user content were resolved, in each case limiting their liability.

Following the approval of the Communications Decency Act, however, numerous protests from civil rights groups followed, questioning the constitutionality of the rest of the legislation and the prohibitions it contained, which were considered contrary to the First Amendment (which protects freedom of thought and expression).

In 1997, therefore, the case Reno v. American Civil Liberties Union came before the Supreme Court, which declared unconstitutional the parts of the text that restricted “obscene and indecent” content, fearing that health-related materials, such as techniques for preventing the spread of AIDS, might also fall under the definition.

Although the prohibitions initially introduced by the Communications Decency Act had disappeared, Section 230 remained in force, maintaining the condition of immunity of providers for all kinds of content posted by their users.

This has allowed Internet platforms to grow and thrive more easily without being stifled by costly content audits and without having to restrict freedom of expression online.

However, in recent years, there have been many harsh criticisms of Section 230 because it allows platforms to tolerate defamatory content, misinformation and incitement to violence. In addition, several authors argue that while platforms guarantee the right to free expression, they still do not do enough to remove offensive content and protect users[6].

Previous cases

In the recent past, the issue has stimulated interesting evaluations by Supreme Court justices, particularly in the cases Force v. Facebook Inc. (2019)[7] e Malwarebytes, Inc. v. Enigma Software Group USA, LLC. (2019)[8]

The first, in particular, concerned the case of a police officer killed by an ISIS-affiliated terrorist group. The mother accused Facebook of providing support to terrorists by allowing them to use the platform to spread their propaganda message and organize attacks.

The basis of the platform’s alleged liability would be mainly the operation of the algorithm and the tendency to create “echo-chambers,”[9] favoring the discovery of content compatible with users’ ideas or tastes.

The U.S. Second Circuit Appeals Court had thus ruled-for the first time-that Section 230 also protects platforms such as Facebook from civil actions brought by victims of terrorism. However, following the appeal filed by the relatives of the victims, the Supreme Court had rejected the request to examine the issue[10].

Nevertheless, Judge Katzman’s dissenting opinion had pointed out that the “active” role of certain platforms in users’ choices was worthy of greater consideration: “Growing evidence suggests that ISPs have designed their algorithms to steer users toward content and people with whom the users themselves agree-and that they have done this too well, pushing sensitive souls further and further down dark paths.” [traduzione a cura dell’autore]” [11].

The issue of internet provider liability, therefore, after being rejected again by the Court in the subsequent Malwarebytes, Inc. v. Enigma Software Group USA, LLC. (in which Justice Thomas’ dissenting opinion cited that of Justice Katzman in Force v. Facebook Inc.), has now finally come before the Justices in the context of three different cases: Gonzalez v. Google[12], Twitter v. Taamneh[13] e Clayborn v. Twitter[14].

Gonzalez v. Google

Nohemi Gonzalez, a U.S. citizen, was being killed in the 2015 Bataclan terrorist attack in Paris.

The following day, ISIS claimed authorship of the attack, releasing a written statement and a YouTube video.

Gonzalez’s father then acted against Google, Twitter, and Facebook, claiming, among others, that Google had aided and abetted international terrorism by allowing ISIS to use its platform, particularly YouTube, “to recruit members, plan terrorist attacks, issue terrorist threats, instill fear and intimidate civilian populations.”[15] He also claimed that the very use of computer algorithms that suggest content for users based on their viewing history helped ISIS spread its message. In addition, Google’s YouTube monetization system also allegedly caused the algorithm to evaluate and approve content from ISIS, resulting in revenue sharing with individuals linked to the terrorist organization.

In the first two levels of court, the motion to dismiss


[16]

of Google was granted, as was the case in previous cases
[17] .

Twitter v. Taamneh

In contrast, the second case in decision originates from the 2017 terrorist attack on Istanbul’s Reina[18] and concerns aiding and abetting charges against Google, Twitter and Facebook for failing to take meaningful measures to prevent the use of their services for terrorism purposes. In this case, after the initial dismissal in the first instance, the Court of Appeals for the Ninth Circuit reversed the decision, finding that there was a direct link between the dissemination of the ISIS message by social platforms and the harm caused to the victims of the attacks[19].

Gonzalez v. Google: the decision

The cited cases were treated jointly by the Supreme Court, which encapsulated its reasoning on Section 230 in the Gonzalez ruling, while using the Twitter ruling to rule on aiding and abetting liability as enucleated from the text of the Anti-Terrorism Act
[20] .

According to reports in the U.S. media, at the hearing the Supreme Court Justices had already expressed considerable perplexity at the appropriateness of deciding the future of the Internet, where it should be the legislature that takes action to bring about such a turnaround: “Isn’t it better to keep it the way it is, for us, and to put the burden on Congress to change that and they can consider the implications and make these predictive judgments?“[21]

Numerous reform proposals have been put forward in recent years by both Republican and Democratic congressmen, some to eliminate the text altogether, others to modify it
[22] .

And indeed, it comes as little surprise that the Supreme Judges’ decision was not to rule on the issue of Section 230 application at all: “[…] we think it is sufficient to recognize that much (if not all) of the plaintiffs’ appeal appears to be dismissed on the basis of our decision in Twitter or by the Ninth Circuit Court’s unchallenged determinations below. We therefore decline to address the application of §230 to a complaint that appears to be able to assert few-if any-claims. [traduzione a cura dell’autore]”[23]

The Supreme Court, therefore, ruled exclusively on the issue of the applicability of aiding and abetting liability under the Anti-Terrorism Act (in Twitter v. Taamneh), avoiding directly addressing the sensitive issue that has agitated observers (lawyers and others) for months.

The motivations of Twitter v. Taamneh

Specifically, two interesting insights can be drawn from the reasons expressed in the Twitter case by Justice Thomas , in terms of assessing the liability of ISPs with respect to how they manage content.

In the argumentative path, the judgment confronts the relevance of the provider’s awareness of the presence of customers/users using the provided service for illicit purposes (e.g., the presence of ISIS on YouTube).

In this regard, the Supreme Court relied on the concept of neutrality of provider action (already used by the 9th Circuit Court of Appeals with respect to the algorithm’s operation)[24] and pointed out that “distant inertia” cannot be transformed into conscious and substantial assistance to terrorist activity; therefore, it found insufficient, per se, the observation that the platforms under consideration do anything more than transmit information for billions of people (through user preference analysis).

In addition, with specific reference to Google and YouTube’s monetization system, the plaintiffs allegedly failed to bring concrete evidence of a substantial contribution made to ISIS or its members, either in terms of the amount of monies paid or with respect to the number of accounts and content approved by the platform.

Therefore, it would not be possible to claim that Google provided assistance to ISIS, either in the 2017 Istanbul attack or in the organization’s other activities of a terrorist nature.

The future of the Internet

The Supreme Court’s almost pilatesque decision certainly meets with favor among those, such as digital rights activists, who argue that Section 230 should remain a part of the U.S. legal system; it would have allowed greater freedom of expression online, fostering the ability to connect and communicate in ways that were not previously possible. It would also allow online platforms to remove offensive content without necessarily censoring freedom of expression.[25]

However, the U.S. Courts’ stance upholding the neutrality of online platforms is difficult to endorse, precisely in light of the known functioning of user preference analysis algorithms.

Indeed, these cases again demonstrated the importance of striking a balance between freedom of expression and protecting users online. Platforms have the power to reach millions of people around the world, but with that power also comes the responsibility to make sure that the content posted on them does not harm users-or at least to make concrete efforts to do so.

In addition, the widespread perception of the need for greater regulation and supervision of online platforms has further emerged. While Section 230 has long provided functional immunity to the development of the Internet, concerns remain about the safety of users and about the dissemination of content that poses dangers both online and offline.

The role and choices of providers are becoming increasingly central, especially in light of the operation of the algorithms they rely on.

Therefore, what is needed-before and far beyond a judicial pronouncement-is a regulatory intervention that addresses the problem with the critical gaze of our decade and can meet the (often) conflicting demands of security and freedom of expression.

Prof. Avv. Roberto De Vita
Avv. Marco Della Bruna

References

[1] Title V of the broader Telecommunications Act of 1996, which amended Title 47 of the United States Code.

[2] “Obscene and indecent.”

[3] “No provider or user of an interactive information service shall be treated as the publisher or spokesperson for information provided by another information content provider.” [traduzione a cura dell’autore].

[4] https://www.cornellpress.cornell.edu/book/9781501714412/the-twenty-six-words-that-created-the-internet/

[5] “No provider or user of an interactive computer service shall be held liable on account of-

(A) any action voluntarily taken in good faith to restrict access to or availability of material that the provider or user considers to be obscene, lewd, lascivious, filthy, excessively violent, harassing, or otherwise objectionable, whether or not such material is constitutionally protected; or

(B) any action taken to enable or make available to information content providers or others the technical means to restrict access to material described in paragraph.”

[6] https://www.eff.org/it/deeplinks/2021/04/content-moderation-losing-battle-infrastructure-companies-should-refuse-join-fight

[7] https://law.justia.com/cases/federal/appellate-courts/ca2/18-397/18-397-2019-07-31.html

[8] https://law.justia.com/cases/federal/appellate-courts/ca9/17-17351/17-17351-2019-09-12.html

[9] https://www.treccani.it/vocabolario/echo-chamber_(Neologisms)/

[10] https://www.supremecourt.gov/DocketPDF/19/19-859/127371/20200102175456524_ForcePetPDF.pdf

[11] “Mounting evidence suggests that providers designed their algorithms to drive users toward content and people the users agreed with – and that they have done it too well, nudging susceptible souls ever further down dark paths.”

[12] https://law.justia.com/cases/federal/appellate-courts/ca9/18-16700/18-16700-2021-06-22.html

[13] https://supreme.justia.com/cases/federal/us/598/21-1496/

[14] https://casetext.com/case/clayborn-v-twitter-inc

[15] Author’s translation.

[16] The defendant’s (in this case Google’s) motion to dismiss the claims of the litigant.

[17] https://law.justia.com/cases/federal/appellate-courts/ca9/18-16700/18-16700-2021-06-22.html

[18]https://www.repubblica.it/esteri/2017/01/01/news/istanbul_attacco_armato_ad_un_night_club_vittime_e_feriti-155199540/

[19] The Ninth Circuit Court used an original but effective example: “Assume that a person on one side of a crowded football stadium fires a high-powered rifle at a group of people on the other side of the stadium whose identities are unknown. Would the majority here affirm that the rifle shot hitting an unidentified bystander on the other side of the stadium has no direct relationship to the shooter and that the shot probably did not cause the resulting death?” [traduzione dell’autore]
Similar allegations, moreover, are at the heart of the case Clayborn v. Twitter, which originates from the 2015 San Bernardino massacre, https://casetext.com/case/clayborn-v-twitter-inc

[20] As last novated in 2016, https://www.congress.gov/bill/114th-congress/senate-bill/2040/text

[21] Quote attributed to Judge Kavanaugh, https://rollcall.com/2023/02/21/supreme-court-cautious-during-arguments-on-internet-liability-law/

[22] https://slate.com/technology/2021/03/section-230-reform-legislative-tracker.html

[23] “[…] we think it sufficient to acknowledge that much (if not all) of plaintiffs’ complaint seems to fail under either our decision in Twitter or the Ninth Circuit’s unchallenged holdings below. We therefore decline to address the application of §230 to a complaint that appears to state little, if any, plausible claim for relief.”

[24] https://law.justia.com/cases/federal/appellate-courts/ca9/18-16700/18-16700-2021-06-22.html

[25] https://www.eff.org/it/deeplinks/2020/12/section-230-good-actually