With the order n. 14368/2015 (download), the Supreme Court held that the applicability and usability of the rule set by art. 3-bis of Law no. 53 of 1994 became actual only after the 15th of May 2014, when the regulations of the 16th of April 2014 adopted by the Managing Director of the Automated Information Systems of the General Direction for Automated Information Systems, laying down the technical specifications provided by Article 34, paragraph 1, of the Decree of the Minister of Justice on 21 February 2011 n. 44, come into force.
This led the Court to affirm that a notification performed by a Lawyer accordingly to art. 3-bis before the 15th of May 2014 is void and therefore it would be appropriate, if the defendant doesn’t appear before Court, to order a renewal of the notification.
The thesis of the Court, however, is not acceptable for the following reasons.
Art. 3-bis of the Law n. 53 del 1994 was introduced by letter d) of the first paragraph of Art. 16-quater of the D.L. 18 October 2012, n. 179, converted with modifications into Law, by L. 17 December 2012, n. 221.
The technical rules previously set by the Decree of the Ministry of Justice 21 February 2011, n. 44, had to be adjourned with a specific Decree of the Ministry of Justice, which was meant to be adopted within 180 days the entry into force of the above mentioned Law of conversion: art. 16-quater, third paragraph, provided that the novelties introduced by its first paragraph would be effective only fifteen days after the publication of such a Decree.
Now, therefore, the Decree mentioned by the second and third paragraph of art. 16-quater is not the provision of the 16th of April 2014 signed by the Managing director of the Automated Information Systems but the Ministerial Decree 3 April 2013, n. 48, that came into force on the 24th of May 2013 and modified the D.M. n. 44/2011, on the technical rules for the adoption in the civil and criminal trial of the modern information and communication technologies (“considered art. 16-quater, paragraph 2, of the D.L. 18 October 2012, n. 179, converted with modification into Law 17 December 2012, n. 221...”, see the preamble of the D.M. n. 48/2013).
Moreover, the assertion of the Supreme Court shall be denied also because the necessary technical specifications were already existing, even before the above mentioned provisions of the 16th of April 2014, as there was a similar provision adopted on the 18th of July 2011.
Beasides the Court’s confusion between technical “rules” and "specifications”, the Supreme Court basically ignored the existence of the D.M. n. 38/2013: unfortunately, this mistake is not surprising in consideration of the terrible choices of legislative technique which we have to face every day.