26 Mar 2012
Informazione utile

The Italian criminal trial

Posted by Nicola Canestrini

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1. INTRODUCTION TO THE CRIMINAL TRIAL IN ITALY

 

1.A HISTORY

The Italian legal system is that of a civil law State, governed by codified law. The Italian Code of Criminal Procedure contains the rules governing criminal procedure in every court in Italy.

The first and initial code in the Italian Republic was established by the Fascist Government in 1930 and was kept until 1988. This code adopted an inquisitorial system. In 1988, a new code was enacted. This chose to abandon the inquisitorial system, but did not go so far as to represent a complete transition to an adversarial one. The resulting system could be considered to be somewhere in between the two (although it is closer to being an adversarial system).

Since 1989, the trial is supposed to be party-dominated and strictly separated from the pre-trial process (investigations).

It is the parties who present lists of evidence to be taken, and it is they who examine and cross-examine witnesses. But the presiding judge can strike manifestly superfluous witnesses from the list, reject irrelevant lines of questioning, ask witnesses and experts additional questions, and can even, "if absolutely necessary", order additional evidence to be taken.

The supposed strict separation between pre-trial investigations and trial proceedings has not survived the very first years after the reform of the Italian criminal process: the law and the jurisprudence of the courts have since permitted the introduction of pre-trial statements under more and more liberal rules.

The basic statute in the field of substantive criminal law is the Criminal Code of 19 October 1930 (Codice Rocco), which is still in force. At the time it was passed, it contained all the characteristics of the criminal law philosophy of the time. The idea of deterrence had been prevalent and this could be seen in the system of penalties as well as in the ways the Code dealt with professional and habitual offenders. The Code has been amended several times. The amendment of 1975 broadened the possibilities of imposing probation; the amendment of 1981 decriminalized those minor offences that had been transferred to the category of petty offences or administrative infractions, and introduced alternatives to short-term imprisonment.

 

1.B SUMMARY OF THE CRIMINAL PROCESS IN ITALY

The process starts when the police or the Public Prosecutor comes to know about a fact that might be considered an offence or a crime.

Once the investigation has ended, the Public Prosecutor starts prosecution in order to set off the criminal process unless he thinks the case can be dismissed.

For those crimes which have to be dealt by the Collegiate Court, the Court of “Assise”, and in some cases by the Single Judge Court, the Public Prosecutor submits a request for trial to the Judge for the preliminary hearing.

Once the preliminary hearing is over the judge can either commit the defendant for trial or abandon prosecution.

For those crimes which fall under the competence of the Single Judge Court or the Justice of the Peace, the Public Prosecutor will serve a summons for trial or a direct summons for trial.

Then there are some special processes: the summary trial, the sanction requested by the parties (plea bargaining), the immediate or summary judgment, the procedure by criminal decree of conviction.

A criminal proceeding usually takes place in three stages: the first instance (Court of “Assise”, Collegiate Court, Single Judge Court, and Justice of the Peace), Appeal, and Court of Cassation [Highest Court].

At first instance all evidence - witnesses and documents - is obtained, and it ends with eitherconviction or acquittal.

The defendant can appeal against the first instance sentence.

The Court of Appeals takes its decision by either confirming the first instance sentence, or by reversing it partially or totally, or it may quash it by sending it back to the first judge.

You challenge the decision of the Court of Appeals by petitioning the Court of Cassation [the Highest Court].

The Court of Cassation pronounces the judgment by which it states that either the petition is not admissible or rejects it, or even quashes the sentence without sending it back, or finally, it may quash the sentence and send it to the trial judge.

Once all the stages of judgment are over, the sentence is final. If there is a conviction with a sentence, the sentence becomes enforceable at this point.

 

2. INVESTIGATIONS

When a public prosecutor (Pubblico Ministero) or a member of the police becomes aware of the fact that a crime was committed, he must begin his investigation: in Italy, the public prosecutor has the duty to initiate criminal proceedings and carry out investigations.

During the preliminary investigations, a Judge only seldom intervenes. The Judge for the Preliminary Investigations (Giudice per le Indagini Preliminari) controls the actions of the prosecutor, when the personal rights of the suspected person are at stake. Unless the Judge for the Preliminary Investigations has authorised it, nobody can be wiretapped. All measures must be adopted by the Judge with an order, and he must also publish written explanations of his decisions.

Even the person who is suspected to have committed the crime can ask a lawyer to investigate on that person's behalf, in order to prove innocence beyond reasonable doubt.

An arrest and precautionary measures (such as provisional - also called pre-trial - detention) can be adopted only if there is a serious likelihood that the defendant has committed a crime and if it is necessary in order to prevent the defendant from fleeing, from committing another crime, or from destroying true evidence or creating false evidence.

The Judge can adopt these measures only when the prosecutor asks that the defendant's rights of movement be limited; bail does not exist under Italian law. The defendant or the prosecutor can appeal against the order of the Judge before the Court of Liberty (Tribunale della Libertà). This court can uphold, modify or quash the Judge's order, reviewing all the circumstantial evidence (which is enough for an arrest warrant or a precautionary measure, but not necessarily to sentence). Its decision can be appealed before the Supreme Court (Corte di Cassazione), which cannot rule on the merits, but only on correct procedure and correct interpretation of the law.
 
There is no real term for the end of the investigations; when the Prosecutor deems himself to have gathered enough information to make his case and before summoning the defendant before the Judge of the Preliminary Hearing, be must serve a notice on the defendant (avviso di conclusione indagini), in which the latter is informed of the crime he is alleged to have committed and that all the evidence gathered up to that moment can be examined by the defendant and by his attorney. By this notice, the defendant is also informed that he can, within twenty days, file a defensive brief, present the results of the defensive inquiry, appear before the Prosecutor to make spontaneous statements or to ask the Prosecutor to question him; the defendant can also ask the Prosecutor to carry out specific acts of inquiry.

 

3. THE PRELIMINARY HEARING (OR PRELIMINARY EXAMINATION)

When the preliminary investigations are over, if the prosecutor deems that the evidence he gathered could not justify a conviction, he must drop the charges. If, on the contrary, he deems he can make his case, he summons the defendant to appear before the Judge of the Preliminary Hearing (Giudice per l'Udienza Preliminare, GUP).

Before him, the prosecutor presents all the evidence he has gathered so far; the defendant can make his case and try to prove that the conditions required for a trial and a guilty verdict are not satisfied.

If the judge of the preliminary hearing thinks that the evidence gathered so far is enough to justify a guilty verdict, he issues the order of indictment before the Court.

 

4. (..) SPECIAL PROCEEDINGS

During the preliminary hearing the defendant or his lawyer, if entitled with his power of attorney, may request special proceedings, like the fast track trial (giudizio abbrevaito) or plea bargaining (patteggiamento).
 
Fast-track trial
The giudizio abbreviato (fast-track trial, literally abbreviated or short proceeding) consists, basically, of proceedings where the trial phase is absent.

It is the Judge of the Preliminary Hearing who, according to the evidence gathered, during the preliminary investigations by the prosecutor and by the lawyer during the defensive investigations, if there were any, convicts or acquits the defendant.

Since this is a reduction of the defendant's rights (he basically gives up his right to presenting new evidence and to be tried by a Judge of the Trial), it must be he who asks that the Judge of the Preliminary Hearing hand down a judgement on him.

The defendant is rewarded with a reduction in sentence. The law states that this reduction is one third. 
Both the defendant and the prosecutor can appeal the judgement before the Court of Appeal (rules on merit again, usually without gathering any other evidence) and even before the Corte di Cassazione, the highest Italian court (which cannot rule on merits, but only on correct procedure and correct interpretation of the law).
 
Plea bargaining (patteggiamento)
When the defendant deems that the punishment that would, concretely, be handed down is less than five-year imprisonment (or that it would just be a fine), he may plea-bargain with the prosecutor. The defendant is rewarded with a reduction in sentence and has other advantages (he does not pay the fees of the proceedings, etc.). The defendant must accept to plead guilty to the charges (even if the plea-bargained sentence has some particular matters in further compensation proceedings), no matter how serious they are. It could happen that the prosecutor agrees to reduce a charge, drop some of multiple charges in exchange for the defendant's guilty plea, often to a lesser offense.

The bargaining is not about the charges, but about the sentence, which is reduced by one third.

When both the prosecutor and the defendant have come to an agreement, the proposal is submitted to the Judge. He will, then, weigh the evidence and, if he is convinced that the defendant is not guilty, he must not accept the proposal and acquit the defendant (it happens seldom, if ever); if, on the contrary, he deems that the defendant is guilty and the judge agrees with the punishment, he must sanction the proposal. If the Judge deems the defendant to be guilty, but thinks that the proposed punishment is too light, he can refuse to accept the proposal and the proceedings will continue. The defendant can, however, ask that his proposal be accepted again.

If a Judge accepts a proposal by the prosecutor and the defendant, the judgement can be appealed only before the Corte di Cassazione, the highest Italian court (which cannot rule on merits, but only on correct procedure and correct interpretation of the law).

 

5.THE TRIAL

During the dibattimento (the trial), both the Prosecutor and the defendant try to make their case.

Article 111 of the Italian Constitution states that

  • trials are based on equal confrontation of the parties before an independent and impartial judge. The law has to define reasonable time limits for the proceedings;

    • in criminal trials, the law provides for timely and confidential information of the accused regarding the nature and reasons of charges brought against them; they are granted the time and means for their defense; they have the right to question those who testify against them or to have them questioned; those who may testify in favor of the accused must be summoned and examined under the same conditions granted to the prosecution; any evidence in favor of the accused must be acknowledged; the accused may rely on the help of an interpreter if they do not understand or speak the language of the proceedings;
    • in criminal trials, evidence may only be established according to the principle of confrontation between parties. No defendant may be proven guilty on the basis of testimony given by witnesses who freely and purposely avoided cross-examination by the defense.

During the trial, all the witnesses must bear testimony once again, as must the experts. It is (basically) an adversarial proceeding and the defendant's attorney has the right to cross-examine the prosecution's witnesses. Further, all the experiments conducted during the preliminary investigations must be repeated where possible, so as to allow the defendant to actually participate in the process of proof formation.

The victim can become a party of the trial through a formal act: if so, the victim’s attorney can present (and cross-examine) witnesses, fighting beside the prosecutor, and claiming the damages. Victims have the right to information about the prosecution of the crime committed against them, to receive counselling and if formally asked, the right to participate in the trial and to compensation.

If the Judge of the Trial is convinced beyond all reasonable doubt the defendant is guilty, the Judge must convict him; if not, the Judge must acquit. The Judge must also publish written explanations of his decisions.

It is important to note that Italy does not try anybody by a jury of peers: the sentence is written and the verdict (and ) is decided by the judge himself (serious offenses have a 3-headed court of judges, or a 2-headed court of judges and 6 jurors).

The parties can appeal against the sentence before the Court of Appeal (which rules on the merits again, usually without gathering any other evidence) and even before the High Court (Corte di Cassazione).
 
If sentenced guilty, first-time offenders or non-violent offenses are considered for probation: a person placed on probation is typically given a jail or prison sentence of up to two years which is suspended for five years. As long as the person does not commit another crime in this period the punishment can be annulled. If not, those who fail probation go back to prison and serve the remainder of his or her sentence in jail.

For the Italian Constitution, criminal punishment has the basic goal to rehabilitate the offender.

***

Please note that this document is intended to be a short introduction to the Italian criminal trial, without any ambition to be exhaustive; this information is not a substitute for legal advice and is intended to be for guidance only. There exist also significant problems with applying non-Italian terminology and concepts of law and justice to the Italian justice system. FOr more information, you might read https://e-justice.europa.eu/content_rights_of_defendants_in_criminal_proceedings_-169-it-en.do?member=1.