Judicial Process in Italy

Judicial Process in Italy

Note: for more related information, see the entry on the Italian Criminal Justice System.

PROSECUTORIAL AND JUDICIAL PROCESS

1. Rights of accused.

*Rights of the accused at trial. The Convention
for the Safeguard of Human Rights and the annexed
Protocol is, for all purposes, part of the Italian
Legal System in that no national law can conflict
with its provisions. (The Convention and Protocol
have been signed by all government members of the
Council of Europe and are in force in Italy as a
State law.) It states that persons have the right
to an independent and impartial trial in an
impartial tribunal and the right to life, liberty,
safety and property. (Convention for the Safeguard
of Human Rights and of Fundamental Liberties,
November 4, 1950; Protocollo, Art.1,2,5,6).
The Convention also states that the accused
has the right to a public trial, with some
exceptions, within an adequate period of time, to
be informed of the nature and content of the
accusation, to cross examine witnesses for the
prosecution, to subpoena witnesses for the
defense, the right to counsel, and the right to be
presumed innocent. The Italian Constitution also
provides for general principles such as the
inviolable rights to liberty and counsel and the
equality of all citizens before the law.
(Constitution, Art.3,13,24; Protocollo, Art.5,6).
Principles similar to those found in the
Italian Constitution and the Convention for the
Safeguard of Human Rights can also be found in
many sections of the Penal Code and Code of Penal
Procedure. For instance, the accused has the
right to be fully informed of the charge and of
the existing evidence against him or her, and to
be informed of the source of the evidence, such as
the identity of the claimant(s), unless this would
be detrimental to the investigation. The accused
also has the right to remain silent and is
considered not guilty until a final sentence has
been pronounced. Uncertainty about the guilt of
the accused due to insufficient or contradictory
evidence can result in a judgement of full
acquittal. The accused also has the right to be
present at trial, to confront opposing witnesses,
and to have all witnesses cross-examined by the
defense attorney. (Code of Penal Procedure, Art.
65,474,486,498,499,530; Constitution, Art.27).
In addition, the accused has the right to be
tried by a judicial panel or by a single judge,
depending on the type of court, according to
territorial jurisdiction where the crime has been
committed. The accused cannot be removed from the
“natural judge”, meaning, from the judge who is
competent to try the case, under law. The accused
may not be tried twice for the same crime and has
the right to be tried in a fair trial, that is, by
an independent and impartial tribunal. (Code of
Penal Procedure, Art. 65,649; Constitution, Art.
25,27).

*Assistance to the accused. The accused has the
right to select and employ a defense attorney in
order to get legal assistance and to produce
evidence in his/her defense at any stage of
judicial proceedings, including the arrest and
investigation stage. If the accused does not
designate a defense attorney, a counsel is
appointed by the Court. This applies to all
crimes of all types of severity. The law states
that indigents must be provided with counsel. The
Bar Association Nation provides a roster of
available attorneys who are legally bound to
provide defense counseling. A Bar Association
Nation exists in each district; therefore, many
rosters of attorneys are available. If eligible,
the accused can select and employ a defense
attorney at state expense, under law. Eligibility
is determined on the basis of personal or family
income. (Code of Penal Procedure, Art.97,190;
Constitution, Art.24; Official Gazette, July 30,
1990).

2. Procedures.

*Preparatory procedures for bringing a suspect to
trial. The Public Prosecutor conducts the
pre-trial investigation either directly or
indirectly by employing the investigating police.
An investigation takes place to establish whether
there is enough circumstantial criminal evidence
to prompt penal action. Depending on the type of
crime, the investigation must be completed within
a legally fixed period of time. (Code of Penal
Procedure, Art.326,358)
If the prosecutor does not find probable
cause after the investigation, he or she requests
the Judge for the Preliminary Investigation
(G.I.P) to dismiss the case. If cause is found,
the prosecutor formally charges the defendant with
the commission of the crime and requests the G.I.P
to commit the defendant for trial. (Code of Penal
Procedure, Art.405,408,416).
After the G.I.P. holds a hearing, he or she
issues an order for trial or, in case of
unsupported charges, pronounces a no case
judgement (nolle prosequi). In the lowest court
level, the Public Prosecutor is in charge of
signing or not signing the indictment. (Code of
Penal Procedure, Art.424,554).
Two other forms of trial are the direct trial
(guidizio direttissimo) and the immediate trial
(giudizio immediato). In direct trials, the
Public Prosecutor can order the accused to be
brought up to trial within 48 hours, if he or she
was caught in the midst of committing a crime. In
immediate trials, the accused may be brought
directly to trial without the preliminary hearing,
if during the preliminary investigation there is
clear evidence of guilt.

*Official who conducts prosecution. The
prosecution of the accused is conducted by the
Public Prosecutor. In the trial stage, prosecution
and defense are in a position of parity. Similar
to a judge, the Public Prosecutor is a career
official (public servant) considered to be a part
of the Bench although the prosecutor is not a
judge.
The distinction between prosecutors and
judges is based on the different functions of the
prosecutor and the judge, who are both considered
magistrates. The Italian magistry is divided into
the inquiring magistry (magistratura requirente o
magistracy), who are the public prosecutors, and
the judging magistry (magistratura giudicante),
who are the judges. The prosecutor is in charge
of conducting the investigation and prosecution
while the judge passes judgement on the case and
imposes a sentence. (The terms magistrate and
magistracy refer to all judges and prosecutors,
independent of their level, competency and
jurisdiction.)

*Alternatives to trial. The accused does not have
the right to plead guilty to a lesser offense
(plea bargain). (The inadmissibility of a plea
bargain in the system is based on the principle of
the obbligatorieta dell’azione penale, which
allows no discretion in prosecution. Once
acquainted with the commission of a crime, the
judicial authority is legally bound to take action
against that particular crime and cannot choose to
seek prosecution to a lesser charge in exchange
for a plea of guilt. In other words, discretionary
or selective enforcement does not exist in the
system. The prosecutor has no discretionary power
to engage in plea bargaining. The crimes
prosecutable by the initiative of the offended
person (reati perseguibili a querela) also adheres
to this rule.) In the case of a miscarriage of
justice, compensation for damages is provided. In
addition, there are 3 pre-trial alternatives: 1)
Short trial (guidizio abbreviato). Upon a
defendant’s formal request, the case is decided in
the course of the preliminary hearing on the basis
of findings of the preliminary investigation,
providing that the Public Prosecutor agrees with
it. If found guilty, the defendant is entitled to
a reduction of one-third of the penalty provided
for the crime (for instance, 6 years in prison
instead of 9). The reduction applies to all
crimes except those incurring a life sentence.
This alternative addresses the problem of lengthy
trials. It was originally introduced to save both
money and time.

2) Imposition of specific penalty. (applicazione
della pena su richiesta delle parti). The
prosecution and defense can jointly ask the judge
for the imposition of a specific penalty on which
they both agree, as long as the suggested penalty
does not exceed 2 years in prison, even when
reduced to one-third of the time. If the
defendant does not commit the same kind of delitto
for 5 years after the sentence or contravvenzione
crime for 2 Years, the offense is legally
extinguished. (Although this is informally called
bargain (patteggiamento), it is entirely different
from the plea bargain known in the United States
court system.)

3) Penal decree of condemnation (decreto penale di
condanna). For minor crimes punishable with fines
and/or prison up to 3 months, the Public
Prosecutor, by decree, can request the G.I.P to
condemn the defendant to pay a fine, the amount of
which is reduced up to 50% of the minimum amount
provided by law. The decree is issued without
hearing the defendant (inaudita altera parte), who
can always oppose the G.I.P decision, in which
case the decree loses its validity and the
defendant goes to trial.
A cash settlement for contravvenzioni crimes
can also be reached (Oblazione nelle
contravvenzioni punite con pene alternative). In
these cases the defendant may be permitted to pay
50% of the maximum amount of the fine provided by
law for that particular contravvenzione, plus
legal expenses. (Code of Penal Procedure,
Art.314,444-448,459; Penal Code, Art.162).

*Proportion of prosecuted cases going to trial.
The majority of prosecuted cases for serious
crimes go to trial, notwithstanding the use of
pre-trial alternatives in the new Code of Penal
Procedure. Approximately 20% of all cases are
resolved by pre- trial alternatives, while 80% go
to trial. It had been expected that the use of
new non-trial alternatives would result in 80% of
all cases being resolved without a trial.

*Pre-trial incarceration conditions. The Judge
for the Preliminary Investigation (G.I.P.) can opt
for pre-trial incarceration, or precautionary
custody (custodia cautelare), at the request of
the Public Prosecutor. Except in cases of
mandatory or facultative arrest, pre-trial
incarceration is permitted only when a person is
accused of a crime carrying a maximum penalty
exceeding 3 years in prison and when at least one
of the following conditions is present: 1) Danger
of counterfeiting, destruction of evidence; 2)
Danger of escape; and 3) Danger of committing more
crimes of the same kind. (Code of Penal Procedure,
Art.274).
Precautionary custody is permitted when other
sanctions such as a prohibition against leaving
the country or town, daily check-ins at the police
station, and house arrest are deemed insufficient.

*Bail procedure. Bail is not allowed in the penal
system.

*Proportion of pre-trial offenders incarcerated.
As of December 31, 1992, there were 47,588
prisoners. The total number of convicted
offenders in prison serving a sentence were 19,855
(41.7%). The total number of incarcerated
pre-trial offenders who were awaiting trial was
26,444 (55.6%). (The total number of prisoners
awaiting trial includes all prisoners awaiting a
final sentence, such as those who are awaiting a
first instance judgement and all convicted
prisoners who appealed against decisions at any
stage of a criminal proceeding.) This figure does
not include the 1,289 (2.7%) offenders subjected
to safety measures in prison who were not awaiting
trial. (National Institute of Statistics, April 5,
1993).

Note: this work was completed in 1993

Resources

See Also

  • Criminal Justice
  • Legal System
  • Criminology
  • Italian Criminal Justice System

Further Reading

  • Cole, George F., S. J. Frankowski, and M. G. Gertz, (1987) Major Criminal Justice Systems. Beverly Hills: Sage.
  • David, R. and J. E. Brierley (1968) Major Legal Systems of the World Today. London: Free Press.
  • Fairchild, E. (1993), Comparative criminal justice systems. Belmont, CA: Wadsworth.
  • Feeley, Malcolm M. (1973), “Two models of the criminal justice system”. Law and Society Review, 7(3): 407-425.

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