Difference between revisions of "Italy"

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These include relevant commitments undertaken by Italy in the field of international human rights law, including the Universal Declaration on Human Rights (1948), the International Convention on the Elimination of All Forms of Racial Discrimination (1965), International Covenant on Civil and Political Rights (1966), International Covenant on Economic, Social and Cultural Rights (1966), Convention on the Elimination of All Forms of Discrimination against Women (1979) together with its optional protocol (1999), Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (1984), Convention on the Rights of the Child (1989) and the Convention on the Rights of Persons with Disabilities (2006). Italy is also party to the European Convention on Human Rights, whose Articles 3 (prohibition of torture), 5 (right to liberty and security), 6 (right to fair trial) and 7 (no punishment without law) are relevant to the criminal process. Law of the European Union, of which Italy is a Member State, includes the Charter of Fundamental Rights of the European Union (CFR), which provides for a right to effective remedy and fair trial,<ref>Article 47 CFR</ref>presumption of innocence and right of defense<ref>Article 48 CFR</ref> and principles of legality and proportionality of criminal offences and penalties,<ref>Article 49 CFR</ref> as well as acts of EU organs undertaken with regard to the Criminal Justice Cooperation (Articles 82 - 86 TFEU), for example directives concerning the right to interpretation and translation,<ref>Directive 2010/64/EU of the European Parliament and of the Council of 20 October 2010 on the right to interpretation and translation in criminal proceedings</ref> the right of access to a lawyer,<ref>Directive 2013/48/EU of the European Parliament and of the Council of 22 October 2013 on the right of access to a lawyer in criminal proceedings and in European arrest warrant proceedings, and on the right to have a third party informed upon deprivation of liberty and to communicate with third persons and with consular authorities while deprived of liberty.</ref> the right to be presumed innocent and to be present and trial,<ref>Directive (EU) 2016/343 of the European Parliament and of the Council of 9 March 2016 on the strengthening of certain aspects of the presumption of innocence and of the right to be present at the trial in criminal proceedings.</ref> and the right to legal aid.<ref>Directive (EU) 2016/1919 of the European Parliament and of the Council of 26 October 2016 on legal aid for suspects and accused persons in criminal proceedings and for requested persons in European arrest warrant proceedings.</ref>
 
These include relevant commitments undertaken by Italy in the field of international human rights law, including the Universal Declaration on Human Rights (1948), the International Convention on the Elimination of All Forms of Racial Discrimination (1965), International Covenant on Civil and Political Rights (1966), International Covenant on Economic, Social and Cultural Rights (1966), Convention on the Elimination of All Forms of Discrimination against Women (1979) together with its optional protocol (1999), Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (1984), Convention on the Rights of the Child (1989) and the Convention on the Rights of Persons with Disabilities (2006). Italy is also party to the European Convention on Human Rights, whose Articles 3 (prohibition of torture), 5 (right to liberty and security), 6 (right to fair trial) and 7 (no punishment without law) are relevant to the criminal process. Law of the European Union, of which Italy is a Member State, includes the Charter of Fundamental Rights of the European Union (CFR), which provides for a right to effective remedy and fair trial,<ref>Article 47 CFR</ref>presumption of innocence and right of defense<ref>Article 48 CFR</ref> and principles of legality and proportionality of criminal offences and penalties,<ref>Article 49 CFR</ref> as well as acts of EU organs undertaken with regard to the Criminal Justice Cooperation (Articles 82 - 86 TFEU), for example directives concerning the right to interpretation and translation,<ref>Directive 2010/64/EU of the European Parliament and of the Council of 20 October 2010 on the right to interpretation and translation in criminal proceedings</ref> the right of access to a lawyer,<ref>Directive 2013/48/EU of the European Parliament and of the Council of 22 October 2013 on the right of access to a lawyer in criminal proceedings and in European arrest warrant proceedings, and on the right to have a third party informed upon deprivation of liberty and to communicate with third persons and with consular authorities while deprived of liberty.</ref> the right to be presumed innocent and to be present and trial,<ref>Directive (EU) 2016/343 of the European Parliament and of the Council of 9 March 2016 on the strengthening of certain aspects of the presumption of innocence and of the right to be present at the trial in criminal proceedings.</ref> and the right to legal aid.<ref>Directive (EU) 2016/1919 of the European Parliament and of the Council of 26 October 2016 on legal aid for suspects and accused persons in criminal proceedings and for requested persons in European arrest warrant proceedings.</ref>
  
==Defendants' Rights==
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====Pre-Trial====
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==Pre-trial Procedures==
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====Start of the Investigations====
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====Searches, Seizures and Lineups====
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The Criminal Procedure Code distinguishes between arrest<ref>Articles 380-383 CPP.</ref> (“arresto”) and detention of a person suspected of a crime<ref>Article 384 CPP.</ref> (“fermo”). The difference between them is related to the seriousness of the offense, and if the offender is caught red-handed.  Arrests usually 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 investigating magistrate within 24 hours.  Within 48 hours, during which , during which the person detained may be interrogated at the presence of a defense counsel, the prosecutor must ask the validation hearing judge to confirm the arrest/detention, otherwise the person must be released immediately.  
 
The Criminal Procedure Code distinguishes between arrest<ref>Articles 380-383 CPP.</ref> (“arresto”) and detention of a person suspected of a crime<ref>Article 384 CPP.</ref> (“fermo”). The difference between them is related to the seriousness of the offense, and if the offender is caught red-handed.  Arrests usually 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 investigating magistrate within 24 hours.  Within 48 hours, during which , during which the person detained may be interrogated at the presence of a defense counsel, the prosecutor must ask the validation hearing judge to confirm the arrest/detention, otherwise the person must be released immediately.  

Revision as of 11:46, 29 September 2019

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FONTI ITALIANE

LEGAL TRAINING RESOURCE CENTER

Background

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. Italy is also a member of the European Convention on Human Rights (ECHR) since the Convention was drafted in 1950. Persistent problems include illegal immigration, organized crime, corruption, high unemployment, slow economic growth, 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 [1] moved the criminal system toward common law models. The inquisitorial system has been infused with adversarial elements, making it a hybrid system. For criminal proceedings, the first instance judicial branch is composed of the magistrates' courts (Giudice di Pace), single-judge tribunals (Tribunale in composizione monocratica), collegiate tribunals (Tribunale) and 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, terrorist association, 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 self-regulating body for the discipline of all judges.

Legal Aid situation

State-sponsored legal aid

In light of the Italian Constitution, defense is an inviolable right at every stage and instance of legal proceedings, and indigent persons have the right to proper means for action or defense.[2] The Code of Criminal Procedure states that the accused who has not appointed or no longer has a retained lawyer shall be assisted by a court-appointed lawyer chosen from a national register of defenders comprised of lists[3] maintained by the local Boards of the Bar Association of each Court of Appeals district.[4]The court appoints the lawyer upon request of the judicial authority or criminal police (polizia giudiziaria).[5]An accused who is indigent may apply for legal aid at the expense of the State in accordance with the provisions of the law on legal aid for destitute persons.[6] Individuals whose taxable income, resulting from the last declaration, does not exceed 11,493.82 euros, can be granted legal aid.[7] A presidential decree from 30 May 2002 regulates in detail the manner of submitting the request for legal aid, exclusions and calculation of the income which qualifies for legal aid.[8] Foreigners and stateless persons residing in Italy have the same right to access State-sponsored legal aid as Italian citizens.[9]

Number of attorneys at law

In 2017 there were nearly 242.796 registered attorneys at law in Italy, which means there were 4 attorneys per 1000 residents.[10]

Sources of Defendants' Rights

National 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[11], and among them, the equality of all citizens before the law[12], the inviolability of the physical integrity of each person, as well as of everyone’s inviolable personal liberty.[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. Articles 24 and 111 of the Constitution are the bedrock of the due process in Italy. The former guarantees the right to begin an action before a court, the right of defense, and the right of economic support for those who cannot afford a trial. The latter ensures 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.No one can be punished for an action that was not a crime at the time it was committed[14]and the defendant is presumed innocent until a definitive decision by the appropriate court.[15]

Capital punishment is banned.[16]

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.[17]

International Sources of Defendant’s Rights

These include relevant commitments undertaken by Italy in the field of international human rights law, including the Universal Declaration on Human Rights (1948), the International Convention on the Elimination of All Forms of Racial Discrimination (1965), International Covenant on Civil and Political Rights (1966), International Covenant on Economic, Social and Cultural Rights (1966), Convention on the Elimination of All Forms of Discrimination against Women (1979) together with its optional protocol (1999), Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (1984), Convention on the Rights of the Child (1989) and the Convention on the Rights of Persons with Disabilities (2006). Italy is also party to the European Convention on Human Rights, whose Articles 3 (prohibition of torture), 5 (right to liberty and security), 6 (right to fair trial) and 7 (no punishment without law) are relevant to the criminal process. Law of the European Union, of which Italy is a Member State, includes the Charter of Fundamental Rights of the European Union (CFR), which provides for a right to effective remedy and fair trial,[18]presumption of innocence and right of defense[19] and principles of legality and proportionality of criminal offences and penalties,[20] as well as acts of EU organs undertaken with regard to the Criminal Justice Cooperation (Articles 82 - 86 TFEU), for example directives concerning the right to interpretation and translation,[21] the right of access to a lawyer,[22] the right to be presumed innocent and to be present and trial,[23] and the right to legal aid.[24]


Pre-trial Procedures

Start of the Investigations

Searches, Seizures and Lineups

The Criminal Procedure Code distinguishes between arrest[25] (“arresto”) and detention of a person suspected of a crime[26] (“fermo”). The difference between them is related to the seriousness of the offense, and if the offender is caught red-handed. Arrests usually 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 investigating magistrate within 24 hours. Within 48 hours, during which , during which the person detained may be interrogated at the presence of a defense counsel, the prosecutor must ask the validation hearing judge to confirm the arrest/detention, otherwise the person must be released immediately. A suspect becomes a defendant only after the prosecutor has initiated a formal criminal action, formalizing the charges. Suspects and defendants have the same rights and guarantees during interrogation (e.g. mandatory presence of a defense counsel).[27] Moreover, if a person can provide useful information for the investigation, the code gives police the authority to gather such information even if the person is not a suspect, 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 .[28] 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, also similar to the one allegedly committed. The competent judge, (usually the preliminary hearing judge, but in cases of direct verdict, “giudizio direttissimo,” the trial 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 does not issue a decree binding the defendant over for the trial, or the accused pleads guilty.[29] 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[30]. The Criminal Procedure Code distinguishes between inspections ("ispezioni") and searches ("perquisizioni").[31] Inspections are mainly observations of places (e.g. the crime scene), and their purpose is descriptive. They are authorized by a justified decree of the judicial authority, except in cases of flagrante delicto. Searches as well must be authorized by the judicial authority except in an (exhaustive) list of cases provided by Article 352 CPP. Searches and inspections 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 CPP. The Code 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.[32]

Defense counsels, during the stage of preliminary investigations, are authorized to carry out their own investigations. The Criminal Procedure Code sets out specific requirements for these activities. [33]

During the Trial

Criminal proceedings start when the prosecutor includes in the register of acknowledged crimes (“registro delle notizie di reato”) the notice of a crime. This is the official start of the investigation, which may last for a period between six months and two years, depending on the crime. Except in special cases, the defendant knows about the investigation only at the end of them when he is notified of the charges of which he is accused, and the results of the investigations.[34] 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. The defense always has the last word during closing arguments[35] Defendants 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).


See Criminal Justice Systems Around the World

QUICK FACTS

  • 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.
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  1. D.P.R. 22 September 1988, n. 447 (“CPP”)
  2. Article 24 of the Constitution
  3. Article 29 of the provisions for the implementation of the Code of Criminal Procedure (Legislative Decree of 28 July 1989, n. 271
  4. Article 97 CPP
  5. Article 97 CPP
  6. Article 98 CPP
  7. Article 76 of the President’s Decree 115/2002 (D.P.R. 115/2002
  8. Articles 74-145 D.P.R 115/2002
  9. Article 90 D.P.R 115/2002
  10. Censis, Percorsi e Scenari dell’avvocatura Italiana, Rapporto Di Ricerca (2018), available at http://www.cassaforense.it/media/7191/rapporto-censis-2018.pdf (p. 7)
  11. Article 2 Cost.
  12. Article 3 Cost.
  13. Article 13 Cost.
  14. Article 25 Cost.
  15. Article 27 Cost.
  16. Article 27 Cost.
  17. R.D. 19 ottobre 1930, n. 1398 (“CP”).
  18. Article 47 CFR
  19. Article 48 CFR
  20. Article 49 CFR
  21. Directive 2010/64/EU of the European Parliament and of the Council of 20 October 2010 on the right to interpretation and translation in criminal proceedings
  22. Directive 2013/48/EU of the European Parliament and of the Council of 22 October 2013 on the right of access to a lawyer in criminal proceedings and in European arrest warrant proceedings, and on the right to have a third party informed upon deprivation of liberty and to communicate with third persons and with consular authorities while deprived of liberty.
  23. Directive (EU) 2016/343 of the European Parliament and of the Council of 9 March 2016 on the strengthening of certain aspects of the presumption of innocence and of the right to be present at the trial in criminal proceedings.
  24. Directive (EU) 2016/1919 of the European Parliament and of the Council of 26 October 2016 on legal aid for suspects and accused persons in criminal proceedings and for requested persons in European arrest warrant proceedings.
  25. Articles 380-383 CPP.
  26. Article 384 CPP.
  27. Article 356 CPP.
  28. Article 251 CPP.
  29. Articles 273 and followings CPP
  30. Articles 97 - 98 CPP
  31. Articles 244 - 252 CPP
  32. Article 191 CPP
  33. Articles 391 bis - 391 nonies CPP
  34. Article 415 bis CPP
  35. Articles 523 CPP.