The fundamental principles of Italian Criminal Law and Procedure

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The existing Criminal Procedure Code was approved in 1988. It replaced the previous Code, which dated back to 1930 and was the expression of the authoritarianism of the political regime of that period. The former Code highlighted the inquisitorial character of the Italian Criminal Procedure Code by giving greater emphasis to the pre-trial phase and almost completely abolishing the participation of the defence counsel in this phase.

Once the Fascist regime was overthrown, a governmental commission was set up to reform the Code, which finally came about in 1955. This new legislation, which clearly aimed at enacting the principles of the new Constitution (that came into force on January 1, 1948), amended over two hundred articles of the Criminal Code so as to guarantee complete recognition of the defendant’s right to defence. Further modifications to the Code were then made by the Constitutional Court, aimed at emphasising the protection of civil rights during criminal proceedings.

In addition to the legislative reforms, the idea of creating a new Code that would be an expression of Italian democracy started to develop back in 1963, when the Carnelutti Commission (the name is taken from the jurist chairing it) was set up. During the 1970s Government enabling acts were approved to adopt a new Criminal Procedure Code. However, these enabling acts were never applied because of the rise of terrorism which created an emergency situation leading to the adoption of a new and more protectionist criminal law system. Finally, on October 24, 1988, Proxy Law No. 81 of 1987 was enacted, and the current Criminal Procedure Code came into force (October 24, 1989).

The new Code was very different from the previous one. It abandoned the inquisitorial model and based the criminal procedure system on the accusatorial model. Therefore it assigned the trial hearings a central (and, at least in theory, a sole) role of obtaining evidence, thus excluding this activity from the pre-trial investigative phase. Furthermore, the “alternative procedures” (abbreviated trial / "giudizio abbreviato", plea bargaining procedure / "patteggiamento", proceeding by decree / "decreto penale di condanna", immediate judgement / "giudizio immediato" and summary judgement / "giudizio diretissima") were completely modified and strengthened with the aim of streamlining the criminal law process.

The Criminal justice system that was created by the 1988 Code has undergone numerous changes during the 1990s, however, following the interventions of both the Constitutional Court, and the legislator in 1992. Greater emphasis was given to statements made during the pre-trial phase in order to deal with the emergency crime situation caused by the worsening of the mafia phenomenon and organised crime in general. With its decision No. 24 of 1992, the Constitutional Court declared that Article 195, paragraph 4 of the Criminal Procedure Code was inconsistent with the constitution because it prohibited the judicial police from testifying on declarations made to them by witnesses. With its decision No. 255 of 1992, the Constitutional Court also declared Article 500, paragraph 3 of the Criminal Procedure Code unconstitutional because it did not envisage the insertion in the court hearing file (the one that is known by the adjudicating body and on which it bases its decisions) of the declarations made previously by the witnesses to the public prosecutor, if these are contested during the trial hearing. It was following these decisions that legislative modifications were made by Law No. 356 of 1992.

Later on, even when Law 267 of 1997 reformulated Article 513 of the Criminal Procedure Code by prohibiting the insertion in the court hearing file of the statements made by the co-defendants to the public prosecution, the Constitutional Court did not change its position. Instead, with its decision 361 of 1998, it declared that the reformulated part of Article 513 of the Criminal Procedure Code was not in conformity with the Constitution since it did not envisage the inclusion in the file of the statements made previously by a defendant, if the latter refused or omitted to repeat them in court.

Numerous legal scholars claimed that the above changes made to the criminal law procedure by the Constitutional Court denied the court hearings their central role, which was an open contradiction of the accusatorial system. This resulted in a complete upheaval of the Code, which lost its original clearly accusatorial character without, however, taking on another specific profile, since the power of the Constitutional Court was too limited to bring about a return to a coherent and organic inquisitorial type of criminal law system.

To solve this problem, characterised by a high degree of contradictory criminal law procedures, numerous political parties proposed that the principles inspiring the accusatorial process be included in the Fundamental Law of the Republic itself. This would prevent the Constitutional Court from prohibiting any further changes aimed at returning the Code in force to its original version.

One of the most significant changes made to the Criminal Procedure Code that is worth mentioning is related to Law 332 of 1995, which tried to restrict the use of measures aimed at limiting personal freedom by making it more difficult to resort to them. This was an attempt to avoid what were considered the abuses of preventive custody that characterised legal activity during the first years of the enactment of the new Code.

Finally, it is important to stress the institution of a single judge through Law Decree No. 51 of 1998. This unified the various first instance judges of the Italian law system, and eliminated the figure of the lower court judge by merging it with that of the Tribunal. After various delays, this reform came into force on June 12, 1999, although it was limited to the civil cases, while for the penal procedure it became effective from January 2000. This has led to the need to make some changes to the Code in force. The cases of incompatibility of judges have thus been widened, the competence of the various adjudicating bodies has been modified and the list of crimes to be judged by a single body rather than by a panel of judges has been widened.

The main criminal procedure provisions are all contained in the Code in force and also apply to those offences for which specific procedures are envisaged. Thus, for example, Law 86 of 1990 provides for all crimes against the public administration to be handled by the Tribunal, while Law 234 modified abuse of official duties by stating that a person indicted for this offence can only be suspended from office after being heard by a judge.

As far as administrative offences are concerned, the procedure is very different from that applied to criminal offences, since the application of administrative sanctions is not assigned to the judicial authority, but falls under the competence of the Public Administration. Therefore, in compliance with Law 689 of 1981, the application of the administrative sanction is not necessarily preceded by a jurisdictional phase. On the contrary, a judicial proceeding can be instituted at a later phase. In fact, anyone on whom an administrative sanction is imposed can lodge an appeal with the judicial authority against the decision issued by the administrative body. In this case, the civil procedure provisions, and not the criminal procedure provisions in force, apply.

The juvenile justice procedure is regulated by a special set of laws not contained in the Code. The main source of this set of laws is Presidential Decree No. 48 of 1998, which was approved and came into force at the same time as the new Criminal Procedure Code. Among the juvenile justice provisions, special mention should be made of Law 835 of 1935 which is still partly in force, and Decree Law No. 12 of 1991.

These provisions provide for a special judicial authority, the Juvenile Court, which is composed not only of professional judges but also of experts in other fields such as pedagogues, psychologists, psychiatrists, criminal anthropologists and biologists. It is not possible to institute a civil action to claim compensation for damage during juvenile trials. In order to protect the minors involved, the parents or those who have legal authority over them are allowed to attend the trial. Given the young age of the defendants, and in order to assist in their social rehabilitation, as well as for purposes of prevention, the law provides for two decisions that might be issued: a decision dismissing the case because the fact is of minor importance and a decision suspending the trial and putting the defendant on probation. The decisions are of great significance. In the first case, the judge can decide not to proceed when, given the light and occasional nature of the offence committed, he/she decides that a continuation of the trial would harm the development of the minor. In the second case, the judge can suspend the trial (for a period that cannot exceed a maximum of three years for the most serious cases), by putting the defendant on probation, under the control and with the assistance of the social services. At the end of the period of suspension, if a positive evaluation of the minor’s behaviour during the probation period is given, the charge is dropped.