Difference between revisions of "Italy"

From Criminal Defense Wiki
Jump to: navigation, search
(Pre-trial Procedures)
Line 165: Line 165:
  
 
A sentence of imprisonment with no suspended sentence becomes enforceable only when the sentence is final. Up to that moment, the defendant is considered innocent.
 
A sentence of imprisonment with no suspended sentence becomes enforceable only when the sentence is final. Up to that moment, the defendant is considered innocent.
 
 
<ref> </ref>
 
  
  
Line 175: Line 172:
 
<h2 id="mp-dyk-h2" style="margin:3px; background:#143966;  font-size:120%; font-weight:bold; border:1px solid #a3bfb1;  text-align:left; color:#ffffff; padding:0.2em 0.4em;">QUICK  FACTS</h2>
 
<h2 id="mp-dyk-h2" style="margin:3px; background:#143966;  font-size:120%; font-weight:bold; border:1px solid #a3bfb1;  text-align:left; color:#ffffff; padding:0.2em 0.4em;">QUICK  FACTS</h2>
  
*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.
+
According to the ECtHR, between 1959 and 2015, Italy has been found guilty of excessively lengthy proceedings more often than any other European country (21% of all such violations: 1,193 out of total 5,668).<ref>European Court of Human Rights, Annual Report (2017), available at https://www.echr.coe.int/Documents/Annual_report_2017_ENG.pdf, pp. 174-175</ref>
 +
 
 +
Italy is among the European countries with the highest percentage of prisoners in pre-trial detention. Violations of Article 5 ECHR in regard of pre-trial decision-making with respect to the excessive length of the detention have been repeatedly recognized in the jurisprudence of the ECtHR.<ref>Parisi, Santoro and Scandurra, The practice of pre-trial detention in Italy - Research report (September 2015), available at
 +
https://www.fairtrials.org/wp-content/uploads/The-practice-of-pre-trial-detention-in-Italy1.pdf</ref>
 +
 
 +
Although Italy has long struggled with overcrowded prison facilities, the problem is now in decline after the Torreggiani and Others v. Italy judgment of the ECtHR (8 January, 2013) helped usher in legislative reforms. According to data for 2011, the occupancy level was nearly 150% (there were 67.634 detainees, with the capacity of the prison system estimated at 45.165 detainees);<ref>Ministry of Justice, Statistics for the end of January 2011 (in Italian), available at https://www.giustizia.it/giustizia/it/mg_1_14_1.wp?facetNode_1=0_2&previsiousPage=mg_1_14&contentId=SST600886</ref> in 2015 it was 105%. In 2015, the prison population was 52.164, 34% of which were pre-trial detainees, 33% foreigners, 4% women and 0.8% juveniles.<ref>Antigone (a Rome-based NGO dealing with human rights protection in the penal and penitentiary system), Prison Population – report from December 2016, https://www.prison-insider.com/countryprofile/prisonsinitaly?s=la-population-carcerale#la-population-carcerale</ref>
 +
 
 
   
 
   
 
{{Languages|Italy}}
 
{{Languages|Italy}}

Revision as of 12:11, 29 September 2019

Globe3.png English  • español • italiano


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

Criminal proceedings begin when the prosecutor enters the notice of offence (notizia di reato), including the suspect’s name, in the criminal records registry (“registro delle notizie di reato”).[25] This is the official start of the investigations, which may last for a period between six months and two years, depending on the crime. The public prosecutor or a member of a law enforcement agency may learn of the offence on their own initiative, or from reports filed by other persons.[26]

The aim of the investigation is collection of evidence, and it is led by a public prosecutor (pubblico ministero). A judge in charge of preliminary investigation (giudice per le indagini preliminari) ensures that the public prosecutor complies with the law and guarantees the rights of the person under investigation. 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 proceedings.[27]

Searches, Seizures and Lineups

To collect evidence, the Public Prosecutor and the Criminal Police (polizia giudiziaria) may order or perform searches, checks, seizure of objects and documents, examination of witnesses, phone tapping, electronic surveillance and inspection of premises.

The Criminal Procedure Code distinguishes between inspections ("ispezioni") and searches ("perquisizioni").[28] Inspections are mainly observations of sites (e.g. the crime scene), and their purpose is descriptive. They must be authorized by a reasoned warrant from the judicial authority,[29] except in cases of flagrante delicto. Searches are performed when there are reasonable grounds to believe that they will yield evidence, and must also be authorized by the judicial authority,[30] except in a limited list of circumstances as specified by Article 352 CPP. The police may exceptionally perform stops and frisks without a warrant, if the person was caught red handed or may flee. A person subjected to a body search must be informed of the right to be assisted by a trusted person, and the search must be performed with respect for the dignity of the person subjected to it.[31] Line-ups and other identification procedures must be carried out in accordance with Articles 213 - 217 CPP. Before a line-up, the person who will be performing the identification is asked to describe the person in all detail he or she recalls and this description entered into the records; otherwise the line-up is considered null.[32]

Arrest and temporary detention

The Criminal Procedure Code distinguishes between arrest (“arresto”)[33] and temporary detention of a person suspected of a crime (“fermo”).[34] The difference between them is based on the seriousness of the offense, whether the offender is caught red-handed and whether he or she is considered a flight risk. Arrests usually occur before the public prosecutor takes over the investigations; the police have the authority to make them. The law enforcement organs may also arrest an individual with a view to enforcing a European Arrest Warrant issued in another State, so that he or she is handed over to the requesting State.

The arrested or temporarily detained person must be informed in a clear and precise written notice (or orally at first, if the notice is not readily available in a language he or she understands) of his or her rights, as follows:

a) the right to appoint a retained lawyer and to access legal aid at the expense of the State in accordance with the provisions of the law;

b) the right to obtain information regarding the charges raised;

c) the right to an interpreter and to the translation of essential documents;

d) the right to refrain from answering questions (right to silence);

e) the right to access documents on which the arrest or temporary detention is based;

f) the right to inform the consular authorities, as well as his or her family members;

g) the right to access emergency medical assistance;

h) the right to be brought before the judicial authority for the confirmation of the arrest or temporary detention within 96 hours of the arrest or start of temporary detention;

i) the right to appear before a court for an interrogation, as well as to challenge the legality of the arrest or temporary detention order.[35]

The arrested or temporarily detained person must be placed at the disposal of the Public Prosecutor within 24 hours of the arrest or start of temporary detention.[36] Within 48 hours, during which the person detained may be interrogated at the presence of a defense counsel, the prosecutor must ask the competent judge to confirm the arrest/detention. If no such confirmation is issued within the following 48 hours, the act is considered null and void and the person must be released.[37]

A suspect becomes a defendant only after the prosecutor has initiated a formal criminal action, formalizing the charges.[38] In any case, unless the law states otherwise, a suspect benefits from the same rights as a defendant (for instance, during interrogation).[39]

Interrogation

Suspects and defendants have the right to a mandatory presence of a defense counsel. Before the interrogation starts, the person must be warned that his or her statements may be used against him or her, and that he or she has the right to remain silent (except as regards providing his or her personal details).[40] If no such warning was given, the statements made by the interrogated person cannot be used.[41] Unlike witnesses who must tell the truth (or else they commit false testimony), suspects and defendants will not be punished if they lie.

If a person can provide useful information for the investigation, the law 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 the possibility of being investigated and invite him or her to exercise the right to counsel.[42] Declarations made by that person until that moment cannot be used against him or her.

Right to counsel

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 one or cannot afford to pay the attorney’s fees.Cite error: Closing </ref> missing for <ref> tag

Rights of the suspect at this phase

  • Right to a lawyer (retained or paid for by the State);
  • Right to collect evidence;
  • Right to be informed of the charges;
  • Right to interpretation and translation of documents into a language he or she understands, free of charge, including during meetings with a lawyer in prison;
  • in the event of a body search, the right to the presence of a trusted person ;
  • in the event of an inspection, sequestration or search, the right to receive a copy of the police report;
  • in the event of seizure of items, the right to lodge a petition for release of these items if they are useful for evidentiary purposes;
  • in the event of an interrogation, the presence of a lawyer is obligatory. Before the questioning, the suspect must also be informed of the nature of the charges and the evidence collected against him or her;[43]
  • Right to refuse to answer questions (except for questions relating to the personal details and previous convictions of the suspect);
  • in the event of an arrest, the right to be informed of the right to appoint a lawyer;
  • in the event of a preventive custody, right to be interrogated within 5 days of being taken into custody.


The trial

After the preliminary investigations are over, the Public Prosecutor may ask the Judge for preliminary investigations to dismiss the case (filing it to the records), or to send the case to court. Except in special cases, the usually defendant learns of the investigation only once it is over, when he or she is notified of its results as well as the charges.[44] Starting from this moment, the defendant and his or her lawyer have the right to access the whole files concerning the investigations (discovery) to prepare the defense. They can also file documents and request another interrogation.

In case of serious crimes, a preliminary hearing takes place before the trial, in front of the judge and in the presence of the public prosecutor, the defense counsel and the suspect (if he or she wishes to participate). At this stage, the defendant may avoid the regular trial by opting for a fast-track trial (rito abbreviato) and, if convicted, benefit from a reduced prison sentence, or by accepting a reduced sentence as a result of plea bargaining (patteggiamento). For less serious crimes (falling within the competence of a justice of the peace), there is no preliminary hearing and the case goes directly to court. The purpose of a trial is to present the evidence before the court and to have it reach a decision (either acquittal or conviction).

Rights of the defendant at this stage

  • right to a fair and public trial, of reasonable length, in front of an independent and impartial established by law;
  • the right to ask for time to prepare the defence;
  • the right not to attend the trial (except for certain acts where attendance is obligatory, e.g. identification by a witness);
  • right to a lawyer (the assistance of a defense lawyer is mandatory);
  • right to legal aid (within limits specified by law);
  • right to an interpreter and to translation of documents, if the defendant does not speak Italian;
  • right to make statements during trial;
  • right to refuse to answer questions (right to silence);
  • right to request the admission of exculpatory evidence (through his or her lawyer) and to cross-examine witnesses.

The defense always has the last word during closing arguments.[45]

Appeals

An individual convicted by a verdict of the court of first instance (Justice of the Peace, single-judge ordinary Tribunal or the Court of Assizes) may appeal against the sentence within a specified period of time. The appeal must specify the reasons for the appeal and issues of the sentence being appealing against. The courts of second instance are, as appropriate, Court of Appeals or the Court of Assizes of Appeal (Corte d’Assise d’Appello).[46]

The court of highest instance is the Court of Cassation, which only reviews decisions of the courts below on points of law. Extraordinary revision is an exceptional procedure, and the request may be submitted to the competent court of appeals without time limits.

Presence of a lawyer is compulsory at an appeal hearing; if the appellant decides to participate, he or she has the right to an interpreter. The Appeals Court reaches its verdict on the basis of existing evidence, and may order a retrial in exceptional cases.

A sentence of imprisonment with no suspended sentence becomes enforceable only when the sentence is final. Up to that moment, the defendant is considered innocent.



See Criminal Justice Systems Around the World

QUICK FACTS

According to the ECtHR, between 1959 and 2015, Italy has been found guilty of excessively lengthy proceedings more often than any other European country (21% of all such violations: 1,193 out of total 5,668).[47]

Italy is among the European countries with the highest percentage of prisoners in pre-trial detention. Violations of Article 5 ECHR in regard of pre-trial decision-making with respect to the excessive length of the detention have been repeatedly recognized in the jurisprudence of the ECtHR.[48]

Although Italy has long struggled with overcrowded prison facilities, the problem is now in decline after the Torreggiani and Others v. Italy judgment of the ECtHR (8 January, 2013) helped usher in legislative reforms. According to data for 2011, the occupancy level was nearly 150% (there were 67.634 detainees, with the capacity of the prison system estimated at 45.165 detainees);[49] in 2015 it was 105%. In 2015, the prison population was 52.164, 34% of which were pre-trial detainees, 33% foreigners, 4% women and 0.8% juveniles.[50]


Globe3.png English  • español • italiano


  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. Article 335 CPP
  26. Articles 330-334 CPP
  27. Article 191 CPP
  28. Articles 244-252 CPP
  29. Article 244 CPP
  30. Article 247 CPP
  31. Article 245 CPP
  32. Article 213 CPP
  33. Articles 380-383 CPP
  34. Article 384 CPP
  35. Article 386.1 CPP
  36. Article 386.2 CPP
  37. Article 13 of the Constitution
  38. Article 60 CPP
  39. Article 61 CPP
  40. Article 64.3 CPP
  41. Article 64.3-bis CPP
  42. Article 63 CPP
  43. Article 65 CPP
  44. Article 415-bis CPP
  45. Article 523.5 CPP
  46. Article 596 CPP
  47. European Court of Human Rights, Annual Report (2017), available at https://www.echr.coe.int/Documents/Annual_report_2017_ENG.pdf, pp. 174-175
  48. Parisi, Santoro and Scandurra, The practice of pre-trial detention in Italy - Research report (September 2015), available at https://www.fairtrials.org/wp-content/uploads/The-practice-of-pre-trial-detention-in-Italy1.pdf
  49. Ministry of Justice, Statistics for the end of January 2011 (in Italian), available at https://www.giustizia.it/giustizia/it/mg_1_14_1.wp?facetNode_1=0_2&previsiousPage=mg_1_14&contentId=SST600886
  50. Antigone (a Rome-based NGO dealing with human rights protection in the penal and penitentiary system), Prison Population – report from December 2016, https://www.prison-insider.com/countryprofile/prisonsinitaly?s=la-population-carcerale#la-population-carcerale