ACTS OF ITALY
LEGAL TRAINING RESOURCE CENTER
Italy became a nation-state in 1861, when the regional states of the peninsula, along with Sardinia and Sicily, were united under King Victor Emmanuel II. An era of parliamentary government ended when Benito Mussolini established a Fascist dictatorship, in the early 1920s. His alliance with Nazi Germany led to Italy’s defeat in World War II. A democratic republic replaced the monarchy in 1946, and economic revival followed. Italy was a charter member of NATO and the European Economic Community (EEC). It has been at the forefront of European economic and political unification, joining the Economic and Monetary Union in 1999. Persistent problems include illegal immigration, organized crime, corruption, high unemployment, slow economic growth, and the low incomes and technical standards of southern Italy compared with the north.
Type of System
Traditionally, Italy is a civil law country. However, the implementation of the Criminal Procedure Code in 1989 dramatically moved the system toward common law models. The inquisitorial system has been infused with adversarial elements, making it a hybrid system. For what concerns criminal proceedings, the judicial branch is. Courts of first instance are the magistrate courts (Giudice di Pace), single-judge tribunals (Tribunale Monocratico), collegiate tribunals (Tribunale), the “Corte d’Assise”. Their subject matter jurisdiction depends on the seriousness of the crime. For example, the “Corte d’Assise”, which rules with the presence of two judges and six lay jurors, has full jurisdiction for crimes such as murder, attempted murder, terrorism, and criminal (mafia-like) associations. Courts of second instance are the single-judge tribunals for the decision of the magistrate courts, the court of appeals for decisions both of the single-judge and the collegiate tribunals, and the “Corte d’Assise d’Appello” for the decisions of the “Corte d’Assise”. The third and last instance court is the “Corte di Cassazione”, which can only evaluate the adherence of judicial decisions to the law. In exceptional cases, and without time limits, any person who has been convicted may present a request for revision to the court of appeal that has the territorial jurisdiction over the case. The Constitutional Court ensures the adherence of decisions of the whole judiciary branch to the principles of the Constitution. The Superior Council of the Magistrature is the regulating body of the discipline of all judges.
Sources of Defendant's Rights
The Constitution was approved in December 1947 and it entered into force on 1 January 1948. It is composed of four sections of which the first one is dedicated to the fundamental principles of the Republic. The Constitution recognizes the fundamental rights of each human being (Article 2), and among them, the equality of all citizens before the law (Article 3), the inviolability of the physical integrity of each person, as well as of everyone’s inviolable personal liberty (Article 13). The Constitution specifically states that only in exceptional cases the public security authorities may take provisional measures which must be reported within forty-eight hours to the judicial authorities. If the latter do not confirm in the next forty-eight hours, the measures are withdrawn and become null and void. Article 111 Constitution is the bedrock of the due process in Italy. It comprises fundamental guarantees for criminal proceedings, such as the right to notice of charges, the right to cross examine witnesses, and the principle that all judicial decisions must be motivated.
The Code of Criminal Procedure entered into force in 1989, while the Penal Code entered into force in 1930 and it has amended many times.
The Criminal Procedure Code distinguishes between arrest (“arresto” - Articles 380-382) and detention of a person suspected of a crime (“fermo” - Article 384). The difference between them is related to the seriousness of the offense, and if the offender is caught red-handed. Arrests occur before the public prosecutor takes over the investigations, the police have the authority to make them. However, both procedures require the police to advise the public prosecutor within 24 hours. Within 48 hours (during which the prosecutor may interrogate the person at the presence of a defense counsel) the prosecutor must ask the preliminary hearing judge to validate the arrest/detention, otherwise the person must be released immediately. A suspect becomes a defendant only after the prosecutor has initiated formal criminal proceeding, formalizing the charges. Suspects and defendants have the same rights and guarantees during interrogation (e.g. mandatory presence of a defense counsel - Article 356 CPC). Moreover, the code gives police the authority to gather information from a person who is not even a suspect yet, and without the assistance of a counsel. However, as soon as the person reveals possible incriminating details, the police are required to interrupt the questioning and advise the person about his right to counsel (Article 351 CPC) When this is the only possible method left, the public prosecutor may require preliminary detention of a person suspected of a crime, if there are serious and grave evidence of guilt, and, alternatively, if there is fear that the investigations might be otherwise jeopardized, that the defendant would flee, or there is fear that the defendant will commit a violent crime similar to the one allegedly committed. The preliminary judge must confirm the request, and a suspect may be held from three months to 1 year, depending on the punishment prescribed for the alleged offense. The detention expires if, during the prescribed time, the judge for the preliminary hearing does not issue a decree binding the defendant over for the trial, or the accused pleas guilt (Articles 273 and followings CPC). The accused has the right to be assisted by a defense counsel, and the presence of an attorney is mandatory throughout criminal proceedings. Judges and courts may nominate a defense counsel (the state bears the expenses) for people who do not have a defense counsel or cannot afford to pay for him (Articles 96 - 108 CPC). The Criminal Procedure Code distinguishes between inspections and searches (Articles 244 - 252 CPC). Inspections are mainly observations of places (e.g. the crime scene), and their purpose is descriptive. They are authorized by a written order of the judicial authority, except in cases of flagrante delicto . Searches as well have to be authorized by the judicial authority except in an (exhaustive) list of cases provided by Article 352 CPC. Searches are carried out with the purpose of securing evidence or the accused for the criminal proceeding. Line ups and other identification procedures must be put in place according to Articles 211 - 217 Criminal Procedure Code. Article 191 CPC states that “evidence acquired in violation of prohibitions established by law may not be used”, and the court is competent to declare evidence unusable at any stage of the proceeding.
Defense counsels are authorized to carry out their own investigations. The Criminal Procedure Code sets out specific requirements for these activities (Articles 391 bis - 391 nonies CPC).
Criminal proceedings commence with a notice of crime received from the police or the public prosecutor. This is the official start of the investigations, which may last for a period between six months and two years, depending on the crime. Unless particular cases, the defendant knows about the investigations only at the end of them when he is notified the charges of which he is accused, and the results of the investigations (Article 415 bis CPP). Starting from this moment, the defendant and his lawyer have the right to access the whole files concerning the investigations. Depending on the crime, there might be a preliminary hearing and then the trial, or immediately the trial. The assistance of a defense lawyer is mandatory, and he may present evidence, require witnesses, cross-examine witnesses, present oral arguments, and closing statements. He has always the last word during hearings (Articles 465 - 567 CPC). Defendant’s and their counsels have the right to propose appeals and file recourses to the Cassation Court, as court of last resort (except for the revision which is an exceptional procedure, and it is to be presented to the competent appeal court).
- Overcrowded prison facilities represent one of the main issues affecting the correction system in Italy. According to the most recent data given by the Ministry of Justice, (http://www.giustizia.it/giustizia/it/mg_1_14_1.wp?facetNode_1=0_2&previsiousPage=mg_1_14&contentId=SST600886) at the end of January 2011 there were 67.634 detainees, while the capacity of the prison system is 45.165 detainees. Due to this reason, while the law prescribes the separation of pre-trial detainees from the others, the first one are often placed with regular detainees, with all the problems related to this situation.
|English • español • italiano|