Sending the witness list via Certified Email is legitimate: comment on Cass. pen. Section VI, judgment no. 8915/2024

Digital innovation is also advancing in the corridors of the courts. With judgment no. 8915 of December 12, 2024 (filed March 4, 2025), the Court of Cassation, VI Criminal Section, has established that the list of witnesses can be transmitted via certified email instead of being physically filed in the registry. A ruling that resolves interpretative knots on art. 468 c.p.p. and paves the way for a more streamlined electronic management of the trial.

The relevant regulatory context

The issue arose in the proceedings against G. S., where the defense had sent its witness list via PEC. The Court of Appeal of Potenza had deemed the electronic filing irregular, while the Cassation overturns the decision by referring to:

• art. 111 of the Constitution on due process and equality of arms;
• art. 111-bis c.p.p., introduced by Legislative Decree 150/2022, which promotes the use of electronic tools;
• art. 468 c.p.p., in the part where it requires the filing of the list but does not bind its form to paper support.

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

The submission by certified email, instead of by the prescribed filing in the registry, of the list of witnesses whom the party intends to request to be summoned for the hearing, is legitimate, as it is a tool, adequate 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 problem is not the form but the certainty of receipt: PEC guarantees the date, time, and integrity of the document, satisfying the same transparency and knowability requirements prescribed for paper filing.

Overcoming conflicting precedents

The Cassation distances itself from ruling no. 6883/2017, which had excluded the usability of filing via PEC. 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no. 51224/2019 and no. 23343/2016, the Supreme Court recognizes that criminal proceedings cannot remain anchored to outdated formalisms, especially after the entry into force of the criminal PCT and European provisions on the digitalization of justice (see eIDAS Regulation).

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

Practical implications for lawyers and judicial offices

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

• the list must be sent to the PEC address of the registry within the legal deadlines, preferably with a digital signature;
• the delivery attestation constitutes proof of timely filing;
• judicial offices must organize themselves to register and insert lists received via PEC 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 is in line with Legislative Decree 10/2023 on the strengthening of electronic criminal proceedings, contributing to reducing costs, time, and environmental impact related to paper-based procedures.

Conclusions

The Cassation, with judgment no. 8915/2024, promotes a modern vision of criminal proceedings, in which technology is an ally of due process and not a formal obstacle. Defense lawyers, public prosecutors, and registries are called upon to seize the opportunity offered by PEC to simplify procedures, reduce litigation over nullities, and make the administration of justice more efficient. A step forward towards a judicial system in step with the times, where form continues to protect rights without stifling substance.