Sentencing in Italy

Sentencing in Italy

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

PENALTIES AND SENTENCING

1. Sentencing process.

*Who determines the sentence? The judge decides
the guilt and sentence in all cases.

*Is there a special sentencing hearing? There is
no special sentencing hearing. Passing sentence
and the determination of guilt occur
simultaneously. At the end of the trial, the
judge immediately pronounces the verdict. The
judge must issue the sentence in writing,
explaining judicial and factual motivation, and
have it made public within a maximum term of 90
days after the verdict, but usually within 15
days.

*Which persons have input into the sentencing
process? Psychiatrists, as expert witnesses for
both prosecution and defense, have input into the
sentencing process when an issue of mental
incompetency, disease, or defect is considered in
order to exclude or diminish criminal
responsibility. However, the judge is not bound
to accept the opinion expressed by expert
witnesses.

2. Types of penalties.

*Range of penalties. The principal penalties (pene
principali) used are prison, including life
imprisonment, and fines. Secondary penalties (pene
accessorie), which are always inflicted in
connection with the principal penalties, are
basically forms of legal interdiction or
disqualification (prohibition against holding
public and private office, forfeiture of parental
authority). As a rule, all property crimes are
punished by imprisonment and fine. (Penal Code,
Art.18-20).
If the penalty does not exceed 2 years in
prison and the convicted person has no previous
criminal record, the judge may suspend the
sentence for a period of 5 years for a delitto or
2 years for a contravvenzione. If the convicted
person does not commit a delitto or a
contravvenzione within these periods of time, the
criminal offense is extinguished. (Official
Gazette, November 30, 1981; Penal Code, Art.167).
When pronouncing a sentence for minor crimes,
the judge may substitute imprisonment with
substitute sanctions for short-term imprisonment
(sanzioni sostitutive delle pene detentive brevi).
These sanctions are: a) Semi-custody
(semi-detenzione): only the night is spent in
prison; b) Release under control (liberta`
controllata): a number of restrictions are
imposed, such as not leaving town or daily
check-ins at the local police station; and c)
Pecuniary sanction/fine (pena pecuniaria).
After a final sentence of conviction has
been pronounced, another judicial panel, the
Tribunal of Surveillance (Tribunale di
Sorveglianza), which consists of 2 stipendiary
judges and 2 experts who are not judges
(psychiatrists, psychologists, pedagogists, and
criminologists) may apply alternative measures to
detention (misure alternative all detenzione).
The principal measures of this kind are: a)
probation (affidamento in prova al servizio
sociale); b) House arrest (detenzione
domiciliare); and c) Semi-liberty (regime di
semiliberta`): only the night is spent in prison).
(Official Gazette, August 9, 1975).
In addition to these penalties, which are
inflicted as penal sanctions if a person is found
guilty of a crime, the penal law provides for the
imposition of safety measures (misure di
sicurezza), on socially dangerous individuals.
According to the Penal Code, a person is socially
dangerous if he or she has committed a crime and
there is a strong likelihood that he or she will
commit another crime in the future, given the
characteristics of the offense and the offender.
The concept of social dangerousness is based on
the prediction of recidivism. (Constitution,
Art.25; Penal Code, Art.203).
Safety measures are also imposed on
individuals who are not criminally liable, or if
liable, are suspectible to lesser penalties
because they were found totally or partially
mentally incompetent at the time of the crime due
to mental disease, chronic intoxication deriving
from alcohol, or drug abuse or deaf-mutism. The
Penal Law determines the minimum length of
enforcement for each safety measure but not the
maximum. Safety measures cannot be revoked unless
the judge decides that the subjected person is no
longer socially dangerous. (Penal Code,
Art.207,208).
There are generally three types of safety
measures: custodial, non-custodial, and
patrimonial. Custodial safety measures include
confinement on a prison farm or labour facility,
which is used mostly for persistent, habitual, or
professional offenders and for offenders “prone to
crime”. It also includes compulsory
hospitalization, and confinement in a reformatory
for juvenile offenders. (Penal Code,
Art.215,216,219,222,223).
A non-custodial safety measure could mean
being released under surveillance, where the judge
prescribes a number of measures that the offender
is required to follow. In addition, the offender
may be prohibited to reside in certain municipal
or provincial districts or to frequent pubs and
other facilities in which alcoholic beverages are
served. If the offender is an alien, he or she
may be expelled from the country. (Penal Code,
Art.215).
Patrimonial or property safety measures
include a process whereby the offender deposits a
sum of money as a guarantee of good behavior
throughout the application of a non-custodial
safety measure. The security is returned if the
offender does not commit a crime which requires
arrest. If the offender does not deposit any
security, the judge will substitute this measure
with release under surveillance. Another
patrimonial safety measure involves the seizure of
property. After conviction, the judge may order
that objects used for the commission of the crime
or that constitute its product or profit must be
confiscated. (Penal Code, Art.219,236,238).
While technically, these safety measures are
not penalties, but rather a protective device,
they are subject to the general judicial
principles which regulate penalties.

*Death penalty. The death penalty is not allowed,
except in case of war, under the military law.
(Constitution of the Republic, Art.27).

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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