Sending Witness Lists via Certified Email is Legitimate: Commentary on Cass. pen. Section VI, judgment no. 8915/2024

Digital innovation is advancing even within the corridors of the courts. With judgment no. 8915 of December 12, 2024 (filed March 4, 2025), the Court of Cassation, Sixth Criminal Section, has established that the list of witnesses can be transmitted via certified email instead of being physically filed with the court clerk's office. This ruling resolves interpretative ambiguities concerning Article 468 of the Code of Criminal Procedure (c.p.p.) and paves the way for a more streamlined, electronic management of trials.

Reference Regulatory Context

The issue arose in the proceedings against G. S., where the defense had sent its witness list via certified email. The Court of Appeal of Potenza had deemed the electronic filing irregular, while the Cassation Court overturned the decision, referencing:

• Article 111 of the Constitution on due process and equality of arms;
• Article 111-bis of the c.p.p., introduced by Legislative Decree 150/2022, which promotes the use of electronic tools;
• Article 468 of the c.p.p., in the part that requires the filing of the list but does not mandate a paper format.

The panel, presided over by G. D. A. and with M. S. G. as rapporteur, highlights that certified email fully serves the purpose of discovery: ensuring that parties and the judge are promptly aware of the evidence intended to be presented.

The submission of the witness list, which a party intends to request be summoned for the trial, via certified email, rather than through the prescribed filing with the court clerk's office, is legitimate, as it is a tool, adapted to the evolution of the communication system, capable of fulfilling the function of "discovery" with correct and complete reception.

The maxim clarifies that the core of the issue is not the format but the certainty of receipt: certified email guarantees the date, time, and integrity of the document, satisfying the same transparency and discoverability requirements prescribed for paper filing.

Overcoming Differing Precedents

The Cassation Court distances itself from judgment no. 6883/2017, which had excluded the usability of certified email filing. In line with judgments no. 51224/2019 and no. 23343/2016, the Supreme Court recognizes that criminal proceedings cannot remain anchored to outdated formalisms, especially after the entry into force of the electronic criminal proceedings system (PCT penale) and European provisions on the digitalization of justice (cf. eIDAS Regulation).

The principle expressed also responds to the need for efficiency enshrined in Directive (EU) 2016/343 on the right to a fair trial, which requires Member States to ensure that accused persons can exercise their rights without undue hindrance.

Practical Implications for Lawyers and Judicial Offices

For legal professionals, judgment no. 8915/2024 offers valuable guidance:

• the list must be sent to the certified email address of the court clerk's office within the statutory deadlines, preferably with a digital signature;
• the delivery confirmation constitutes proof of timely filing;
• judicial offices must organize themselves to register and insert lists received via certified email into the electronic file, avoiding inadmissibility objections;
• in case of technical problems, paper filing remains possible as a substitute, but it can no longer be imposed as the only option.

The ruling aligns with Legislative Decree 10/2023 on the strengthening of electronic criminal proceedings, contributing to the reduction of costs, time, and environmental impact associated with paper-based procedures.

Conclusions

With judgment no. 8915/2024, the Cassation Court promotes a modern vision of criminal proceedings, where technology is an ally of due process and not a formal obstacle. Defense attorneys, public prosecutors, and court clerk's offices are called upon to seize the opportunity offered by certified email to simplify procedures, reduce litigation over nullities, and make the administration of justice more efficient. This is a step forward towards a judicial system in step with the times, where form continues to protect rights without stifling substance.