. Investigation and criminal procedure

Read Also

Main aspects

The investigation and criminal procedure commences when an offence is reported, and is completed when a decision by a court is given. It is divided into two phases. These are the investigative phase (indagini preliminari), which precedes the trial and in which the public prosecutor has an important role, and the court hearing during which the contending parties put evidence before the court.

Preliminary investigations start when a public prosecutor is informed with a notitia criminis, i.e. when he/she receives sufficiently detailed and specific information about the commission of a criminal offence. The public prosecutor and the judicial police are not merely the passive recipients of information from third parties, but can also discover cases themselves, in accordance with Article 330 of the Criminal Procedure Code. This is the means by which anonymous reports can de facto give rise to criminal proceedings by providing the public prosecutor or the judicial police the possibility to act on the information received and thus acquire a notitia criminis.

Once the prosecutor is informed of the commission of an offence, the preliminary investigative phase commences. This phase cannot last indefinitely, and therefore a maximum time limit is fixed. The time limit does not start on the day the offence is reported, however, but on the day when the offender is identified: in other words, from the moment in which a given person is investigated for a certain offence. The time limit set to investigate a specific person is six months, which can be extended to a maximum period of two years in the case of more serious offences.

During this pre-trial phase, the public prosecutor has a dominant position in carrying out the investigation. In theory, until the beginning of the court hearing the work carried out by the parties cannot be used as evidence, since the evidence is collected during the court hearing. The current Code has already introduced some exceptions to this general principle. The original Code established that a series of investigative methods that cannot be repeated (such as inspection reports, confiscation, search, unrepeatable technical controls, phone interceptions) could be used as evidence. A probatory hearing (incidente probatorio) was also envisaged. This was of direct Germanic inspiration and consisted of the contending parties speaking before a judge before the trial and evidence being gathered. Upon the request of the two parties, this instrument could be used if a delay in providing evidence might result in it being lost or polluted.

There are always exceptions to this general rule, however, and in these cases evidence can only be obtained during the trial and not before it. The above-mentioned legal framework has undergone radical changes following the already cited decisions of the Constitutional Court (see section 3) which ended up attributing a probatory value to the statements made by persons to the public prosecutor during the preliminary investigative phase. In this way, the original design of the Code in force was radically modified, so much so that the majority of the legal scholars believe that it has lost its internal coherent and systematic character forever.

The pre-trial phase is conducted under the control of the judge for preliminary investigations ("G.I.P."), a judge who controls the work of the public prosecutor and guarantees the rights of the person being investigated, in other words, when there is a need to collect the evidence in advance. The preliminary judge has the task of adopting measures restricting personal freedom if this proves necessary during the investigation. He/she also decides whether it is necessary to extend these measures, following a request by the public prosecutor. In addition, at the request of the parties the preliminary judge decides whether to admit taking evidence during the pre-trial phase and presides over the proceedings.

Furthermore, the preliminary judge decides on any requests to set the case aside. In fact, the preliminary investigation phase ends when the public prosecutor decides whether or not to send the defendant(s) to court. If the public prosecutor believes that the reported offence is groundless (as can happen also when the collected evidence is not sufficient to sustain the accusation in court), or that there are no prerequisites for continuing the case, or that the act does not constitute an offence, he/she asks the judge for preliminary investigations to set the case aside. If the latter decides to accept this request, he/she orders the case to be closed. Otherwise, he/she asks the public prosecutor to carry out further investigations. If, after having carried out further investigations, the public prosecutor still believes that there are no grounds for sending the case to court, but the preliminary judge deems otherwise, the latter can order the public prosecutor to make an indictment.

It is worth noting that, if the case is closed, the person offended by the crime (who might also now coincide with the person damaged or injured by the crime) can appeal against this decision before the judge for preliminary investigations.

If, however, the request to dismiss the case is accepted, the case is closed, but it can be reopened at any time if new evidence is acquired.

Should the public prosecutor decide to commit the investigated person (who is then called the defendant) for trial instead of carrying out the criminal action he/she would directly issue such an order in cases where the criminal offence falls under the competence of the lower court; on the other hand, he/she would send his/her request to the preliminary judge when the crime involves the competence of either the Tribunal or the Court of Assizes. The preliminary Judge will decide whether or not to accept the request after listening to both parties in chambers. This first hearing is called the preliminary hearing. In this respect, it should be underlined that the recent reform relating to the “single judge”, by unifying the positions of the magistrates and the Tribunal judges, has modified the above- mentioned system. This means that the preliminary hearing will only continue to be used before the Tribunal college.

The Italian criminal law system had always been inquisitorial in character, with the investigations being carried out by the investigating judge who was assigned the gathering of the evidence. In many cases, the court hearing was merely a form of controlling the previous phase. This underwent a substantial change when the new Code came into force in 1989. This Code, following some proposals for legal changes, was clearly inspired by the North American accusatorial model. The investigating judge was replaced by the judge for preliminary investigations who had the task of controlling that the work being carried out by the public prosecutor was in compliance with the law and guaranteed the rights of the person being investigated. The evidence was not normally collected during this phase, but during the court hearings.

These basic characteristics of the Italian criminal law system have undergone significant changes, however, following the decisions of the Constitutional Court in 1992 which have already been mentioned. The greater possibility to collect probatory evidence even during the preliminary investigative phase has brought about particular changes in the Italian criminal law procedure. Most of its accusatorial character has given way to a mixed system which is largely criticised by some scholars as having lost it’s original coherent and systematic character.

In addition to the normal procedures, the Code also provides for other types of criminal law procedures, the so-called alternative procedures. These are as follows:

Abbreviated trial (Giudizio abbreviato). A defendant may ask, with the consent of the public prosecutor, for a decision to be pronounced on the basis of the evidence collected during the preliminary phase. If the judge considers it possible to adjudicate on the basis of the said evidence, he/she pronounces the judgement. Where a sentence is pronounced, the penalty is reduced by one-third.

Bargaining the sentence (Patteggiamento, Applicazione di pena su richiesta). When the envisaged sentence does not exceed two years, the defendant or the public prosecutor may ask for a given sentence to be applied. If the two parties agree and the judge considers the proposed sentence appropriate, he/she applies the negotiated sentence. The advantages for the defendants are that they are granted a reduction of up to one-third of the sentence, they do not have to pay court costs and they are not subjected to any security measures.

Proceeding by decree (Decreto penale di condanna). For offences which are prosecutable ex officio, if the public prosecutor believes that only a pecuniary penalty should be applied, he/she asks the judge for preliminary investigations to decide the case by decree. If this request is accepted by the preliminary judge, a decree is issued which contains the sentence. If the defendant appeals against the sentence, an ordinary criminal law procedure is instituted.

Immediate trial (Giudizio immediato). When there is conclusive evidence, the public prosecutor and the defendant can ask to pass immediately from the preliminary investigative phase to the court hearing, without holding a preliminary hearing.

Summary trial (Giudizio direttissima). This type of trial can be applied when an offender is caught red-handed (in flagrante delicto), or when the commission of an offence is confessed. The defendant appears directly before the court, although he/she has the right to apply for an abbreviated trial or the bargaining of the sentence.

The Criminal Procedure Code is divided into eleven books.

The first book is dedicated to the judge, the defendant, the public prosecutor, the judicial police, the civilly liable persons, the injured party, the civil parties and the defence counsel.

The second book regulates the acts of the trial and contains the most important provisions regarding the procedural terms and nullity or invalidity of acts.

The third book regulates the investigation and collection of evidence.

The fourth book regulates precautionary measures directed against the person or property.

The fifth book deals with pre-trial investigations and the preliminary hearing, while the sixth book regulates special procedures, i.e. the alternative procedures aimed at shortening or expediting the court hearings under special circumstances. These include cases for which it is easy to provide evidence or when the defendant asks for a lighter sentence (the alternative judgements: see above).

The seventh book regulates the trial: the preliminary phase, the trial hearing, and the decision, including the sentence.

The eighth book regulates the proceedings before the lower court (now: a single-judge court), while the ninth book provides the norms for the appeals.

The tenth book regulates the enforcement/execution of the sentence and the eleventh book deals with the judicial relationships with foreign authorities. The latter contains the provisions relating to extradition, international rogatory letters and the effects of foreign sentences.

6.2. Restrictions on personal freedom before judgement appeals and collection of evidence

Article 13 of the Constitution expressly guarantees personal freedom, by stating that freedom may only be restricted by the judicial authorities and only in those cases provided for by law. It states that personal freedom may only be restricted by a motivated order of a court in the cases specified by the law.

A whole book of the Code, the fourth one, is dedicated to precautionary measures.

In compliance with the constitution these measures may only be applied by the court dealing with the case or by the judge for preliminary investigations, upon the request of the defendant or the public prosecutor (to repeal or modify them).

The law lists the requirements for adopting these precautionary measures. They consist of serious circumstantial evidence of guilt and at least one of the following: risk of escape, risk of acquisition or of the genuineness of the evidence and risk of the offence being repeated. Article 274 of the Criminal Procedure Code states that these precautionary measures can in no case be inflicted on an indicted person or a person under investigation who refuses to make declarations or admit guilt. The fact that a person takes advantage of nemo tenetur se detegere cannot be used as a reason for applying these measures.

The law regulating the adoption of these precautionary measures was made stricter in 1995, by Law No. 332 reforming the Criminal Procedure Code. This law was introduced following numerous complaints regarding the inappropriate use of preventive custody in prison, which was often de facto used as an instrument to obtain a confession or incriminating declarations, and represented a violation of nemo tenetur se detegere principle. To avoid this, certain prohibitions were established with regard to the use of the most severe precautionary measure i.e. pre-trial detention. As a result, this measure could not be applied if the judge thought that the person who was under investigation and who had been charged could be granted a conditional suspension of the sentence. It has been stressed that this measure can only be adopted in exceptional circumstances and only if the other lighter measures prove inadequate. It has also been noted that a judge must justify his decision to adopt this measure (and the decision can be annulled). The maximum term of imprisonment has been decreased and recidivism cannot be taken into account when deciding on the adoption of the said measure.

The length of the term of preventive custody is established in accordance with the sentences fixed for each type of offence and cannot exceed certain maximum limits.

The excessive length of preventive custody prior to sentencing has been criticised for some time as one of the main faults of the Italian criminal law system. Even this aspect of preventive custody was modified by Law 332 of 1995. Nowadays, for the most serious cases, i.e. for crimes for which a maximum of twenty years of imprisonment is envisaged, the maximum period of preventive custody is six years.

Precautionary measures can be revoked or modified upon the request of the defendant or public prosecutor, if the reasons for their adoption no longer exist or have changed significantly. In this case the judge who adopted the measures makes the decision. In any case, it is also possible to lodge an appeal against a decision applying a precautionary measure. An appeal may be lodged with the Court of Appeals or with the Court of Cassation.

The period of time spent in pre-trial custody is taken into consideration when deciding on the length of the sentence in the case of a conviction and is deducted from the sentence still to be served.

In addition to preventive custody, the Italian Criminal Procedure Code provides for other forms of restrictions of personal liberty that are applied before the final sentence is pronounced. These are arrest and being held for questioning (fermo). These two measures are only used during the preliminary investigative phases, and not during the trial, because they are temporary measures. Since they are only applied during the pre-trial phase, they are not contained in the book of the Code dealing with precautionary measures, but in the book on preliminary investigations.

Obviously, these measures also have to guarantee the fundamental right of personal liberty as sanctioned by Article 13 of the Constitution. This provision contains a clause that undoubtedly refers to arrest and holding for questioning. Paragraph 3 of Article 13 states that in exceptional cases of need and emergency that are expressly indicated by law, the police can adopt provisional measures. However, if these are not confirmed within the next forty-eight hours, they are considered as annulled or ineffective.

The exceptional circumstances of need and emergency are identified with the arrest and holding for questioning, in accordance with the Italian legal tradition.

A person may be arrested if caught by the judicial police, injured party or any other person, while actually committing the offence (i.e. in the state of flagrancy in its strictest sense), or after the offence, with the stolen object or other evidence in his/her possession that indicate that he/she committed the offence immediately before being caught (quasi-flagrancy). Arrest in flagrancy cannot be applied for all offences. For example, it cannot be applied for misdemeanours, unintentional offences and for offences for which light sanctions are imposed.

Whereas only the judicial police and private persons can make an arrest, the public prosecutor alone can issue an order to hold a person for questioning, although this can also be done by the judicial police, but only when it is not possible to contact the public prosecutor beforehand. Following widespread complaints about the abuse of this law by the police, it was made stricter by the 1988 Code, especially the part regarding holding for questioning without the approval of the public prosecutor.

The existing law on this measure envisages that it can only be adopted for crimes for which a prison sentence of not less than two years and no more than six years is envisaged: in other words, for those crimes involving the use of war weapons and explosives. In order for it to be applied, there must be a real risk that the offender might escape and serious evidence of the culpability of the person.

The same procedure is applied following both an arrest and holding for questioning. The person under arrest or being held must be informed that he/she has a right to name a defence lawyer. In compliance with Article 13, paragraph 3 of the Constitution, the public prosecutor must ask the judge for preliminary investigations within forty-eight hours to confirm the measure. In case of non-compliance with this term, the person under arrest or being held must be released immediately. In turn, within forty-eight hours the judge for preliminary investigations must fix a hearing in order to confirm the arrest or holding for questioning. During the hearing the public prosecutor and the defence counsel of the defendant must present their cases before the judge. At the end of the hearing, if grounds exist, the judge can confirm the arrest or holding for questioning and, if necessary and if requested by the public prosecutor, he/she can apply a precautionary measure. Otherwise, the person under arrest or being held has to be released immediately.

It is always possible to lodge an appeal against a decision of the first instance judge. Not only the public prosecutor, the defendant and his defence counsel have the right to lodge an appeal against a decision, but also the injured party (the person directly affected by the offence), the civil party (the person that has been damaged as a result of the crime), as well as the civilly liable person (who has to compensate the damage caused by the offender and is therefore liable to pay a penalty if the offender is considered guilty). Unlike the public prosecutor, the defendant and the defence counsel, the other parties can only lodge an appeal against those parts of the decision that affect their rights. A partial exception to the rule is presented by the injured party for offences of slander and defamation, in that they can appeal against decision of acquittal, even in reference to criminal liability and guilt.

The first type of remedy that it is worth analysing is the appeal, whereby a court of second instance takes over the entire responsibility of deciding whether to allow and grant the appeal against the first sentence. Since the grounds for appeal are not listed in the law, numerous grounds can exist. In addition, since the judge of appeal re-examines the appealed sentence, he/she can completely overturn the evaluations and decisions made by the first instance judges.

Not all sentences can be appealed against, such as those made during an abbreviated trial and negotiated sentences, and those related to cases where only a fine (pecuniary penalty) may be imposed.

In any case, it is possible to appeal to the Court of Cassation against unappealable sentences as well as against the decisions rendered by the Appeals Court. The Court of Cassation is the highest court of the Magistracy. The Cassation decides on the legitimacy (on points of law) of cases and not on their merit. In other words, it only has to ascertain if a trial has been carried out in compliance with the laws regulating it and that the judgement was issued taking into consideration the basic rights of the defendant. It does not, however, have the power to decide on the historical facts of the case.

The reasons for appealing to the Court of Cassation are expressly indicated by law. At the end of the hearing, the Court of Cassation can decide whether to confirm or annul the decision that was brought before it. In the latter case, the Court pronounces a final decision relating to the judicial controversy, if no further preliminary proceedings are to be carried out. It therefore only deals with the application of the law, while remitting the case to a court other than the one that issued the previous decision.

Under no circumstances can a case be examined in the absence of a defence counsel. If the defendant has not nominated his own lawyer or if the lawyer is absent without any justification, then a defence counsel is appointed by the court.

Given the importance of the evidence, a whole book – the third one – of the 1988 Penal Procedure Code has been dedicated to it.

The book establishes that everything that is both pertinent and not superfluous to the decisions to be made by the judge can be used as evidence. The judge will decide whether these two requisites have been met before making the admission order. The evidence, in fact, is provided by the parties and the role of the judge is to ascertain whether it can be admitted on the basis of the two above-mentioned criteria. With the adoption of the accusatorial system, the principle of acquiring evidence ex officio no longer exists. This principle represented the main criterion under the previous Code, which was inquisitorial in character. Although the judge can acquire the evidence ex officio, this is an exception to the rule. Article 507 of the Criminal Procedure Code establishes that it can be resorted to only when the acquisition of the evidence has been terminated (i.e. the evidence proposed by the parties) and only if this is absolutely essential.

The Code defines and identifies different types of evidence (testimonies, assessments, documents, inspections and searches etc.). However, the decision of the judge is not based on this evidence alone. In fact, following a wide debate on the question of strictly specified evidence, it was decided to abandon the radical reform bill of the 1970s which proposed to restrict the evidence to that listed in the Code only, and to leave it to the judge to decide whether unspecified evidence may represent a threat to the moral liberty of the person.

Any proof that is unlawfully acquired, i.e. in violation of the laws, cannot be used. Such proof has no value at all, cannot become valid, and can be ascertained as invalid by a competent judicial authority.

As far as the evaluation of the evidence is concerned, the Italian Code reiterates the traditional principle of Italian law, i.e. the judge's freedom of decision, although he/she is obliged to justify this decision. In this respect, it should be recalled that the lack or the inconsequentiality of the written motivation that the judge must lay down with the decision is one of the main reasons for which it can be appealed to the Supreme Court of Cassation. In addition to these limits concerning the rationality of the motivation of the decision, the principle of the freedom of the judge to make a decision is also limited by other legal factors. These include the fact that statements made by defendants in connected cases or co-defendants at a trial can never be used as evidence, but must be confirmed by other evidence (Article 192 of the Criminal Procedure Code).

This question has lead to what has become an extremely delicate problem in Italy’s criminal policy debate, i.e. the reliability of the statements of "pentiti". Many people complain about the scant credibility of offenders who are members of criminal organizations and who, in order to obtain significant reductions in the sentences imposed have, since the 1980s and within the framework of the fight against this serious phenomenon, begun to co-operate with the authorities by admitting guilt for various crimes and by accusing other presumed members of the association of other crimes. This problem becomes even more delicate if one considers that these statements are often considered reliable by the judge when they coincide with statements made by other "pentiti".

Since it is possible to arrange for the penitent offenders to provide similar statements in order to obtain elements of proof, various political parties have proposed modifying Article 192 of the Criminal Procedure Code so as to exclude mere repetition of similar statements by different penitent offenders from being used as evidence. This was probably the reason for which Paragraph 3 of Article 513 of the Criminal Procedure Code (which has already been described) was modified but then vacated by the Constitutional Court’s Decision No. 361 of 1998.

6.3. The organization of the investigative agencies

Italy has traditionally had various police forces, each with a different status and structure.

The two most important ones are the State Police and the “Arma dei Carabinieri”.

The State Police is a police force responsible to the Ministry of the Interior, which is the ministry responsible for ensuring public order in general. The Arma dei Carabinieri is one of the various components of the armed forces (which in Italy are the Army, the Navy, the Air Force and the “Arma dei Carabinieri”). They therefore have a military structure and military regulations and are directly responsible to the Ministry of Defence. The general task of these two forces is to maintain general public order.

There are then other public security forces with specific tasks relating to given fields. These include the Excise Police ("Guardia di finanza"), which controls public revenue and is responsible to the Ministry of Finance, the Municipal Police which has limited competencies and is responsible to the individual municipality, the State Forest Corps which safeguards woodlands and forests and which is part of the Ministry of Agriculture but has recently been divided according to the competencies of the various Regions and the Penitentiary Police which is responsible directly to the Ministry of Justice.

As far as the structures of the two main police forces - the Police and the Arma dei Carabinieri – (but also of all the state corps) are concerned, they have a pyramid-like structure with the lower level ranks grouped into provincial territories (each provincial capital has a police headquarters and a provincial Carabinieri command office), with the Head of the Police and the Commander of the Carabinieri at the top. These are responsible to their respective Ministries in regard to bureaucratic and organizational matters and to the Ministry of the Interior for public security affairs. The Prefect is the highest internal administrative organ with control and inspection under its jurisdiction.

The activities conducted by the judicial police in particular - i.e. the activities performed after a crime is committed and aimed at identifying the offender – can also be carried out by all the above-mentioned corps as well as by the Mayor of those municipalities lacking a police office, Carabinieri command office or Excise Police office.

In addition to their traditional bureaucratic links with the Ministry of Justice, the judicial police depend from an operational point of view, on the judicial authorities, in compliance with Article 109 of the Constitution, which establishes that the judicial authorities can directly use the judicial police. The aim of this constitutional law is to avoid the de facto loss of the autonomy and independence of the magistracy with respect to the executive power, which would be the case if the judicial police were fully subordinated to the Ministry.

In order to concretely enact Article 109 of the Constitution, the Code establishes that in carrying out all their functions, the judicial police have to respond to, and are controlled by, the judicial authorities. A particularly close tie is established between the judicial police and the public prosecutor. Special judicial police sections are set up in each Public Prosecutor’s Office. The police officers belonging to these sections can only be removed from office following the assent of the chief magistrate of the office (i.e. the Chief Prosecutor). In the same way, the members of these sections can only receive a promotion following a positive evaluation of their work by the Chief Prosecutor.

There are also various sections of specialised judicial police corps which investigate certain types of crimes. These include the Direzione Investigativa Antimafia (D.I.A. – Antimafia Investigative Directorate) and specialised groups comprised of officers belonging to the state police, the Carabinieri and the Excise Police who carry out investigations relating to organized crime. There are also specialised sections of the Arma dei Carabinieri who are placed under the direct control of the Ministries of Health and Environment and control unlawful activities relating to altered food products detrimental to people’s health and unlawful activities relating to the environment.

 

6.4. The Organization of the Prosecution Office.

In Italy, prosecution is exercised by the Public Prosecutor’s Office. This is a body of professional magistrates who, like the rest of the judiciary, are guaranteed independence from the executive power or from any other power by the Constitution.

In fact, in order to guarantee this independence, and to comply with the principle of mandatorial prosecution (Article 112 of the Constitution), which is a maxim of the Italian criminal law system as well as a corollary of the principle of equality among citizens, it was decided to continue to allow magistrates to carry out their public prosecution function without being subordinated to the executive power. In this way, they are subjected to the same norms envisaged for the other judges.

Public prosecutors are also part of the Judiciary. Decisions regarding their career and, in general, any administrative decisions regarding them are taken by the self-governing judicial body, the Consiglio Superiore della Magistratura, which is a single organ for both investigating and adjudicating judges. Two-thirds of its members are elected by the judges themselves, while the remaining third are elected by Parliament. Apart from passing a public examination/competition, it is not necessary to follow a specific procedure to become a public prosecutor. There is no separation between the careers of adjudicating and investigative judges, and it is possible to go from one career to the other during one's working career.

Some scholars have sustained that this causes an imbalance between prosecution and defence, since the professional homogeneity between the public prosecutor and the adjudicating judge places the defence in an unfavourable position. It has thus been proposed that the two careers be separated. This proposal has not been accepted yet because it has been noted that by separating the public prosecutors and the ordinary magistrates, two solutions could be attained, both of which are unacceptable. The first solution would be to make the public prosecutor directly dependent on the executive power. This would go against the principle that prosecution is compulsory and against the equality of citizens before the law. If the second solution were adopted, a completely independent and autonomous accusatorial organ would be created that could become an extremely dangerous super police force.

Before analysing the structure of the public prosecutor’s office, it should be stressed that there are as many different public prosecutors’ offices as there are different adjudicating organs dealing with criminal matters. It is thus possible to distinguish between a Public Prosecutor’s Office at the Magistrate’s Court and a Public Prosecutor’s Office at the Tribunal. These are accusatorial organs that perform before the first grade judge. There is then the Public Prosecutor’s Office at the Court of Appeal (Proena Generale presso la Corte di appello), which plays the role of public prosecution before the second instance judge. This office does not carry out preliminary investigations. Finally, there is the Prosecutor General’s Office at the Court of Cassation, which acts as the accusatory organ.

Once the figure of a single judge was introduced (which, as already mentioned, occurred on June 2, 1999) the Public Prosecutor’s Office attached to the Magistrate’s Court was united with the Public Prosecutor’s Office attached to the Tribunal. This resulted in a single office carrying out an accusatorial role in front of the first instance judges.

Each public prosecutor’s office is composed of a head (Chief Prosecutor) and numerous magistrates. These prosecutors work according to a hierarchy, except during the court hearing when each public prosecutor is granted complete autonomy. This means that he/she can be substituted by the head of the office only for a series of cases set forth by the law (such as for serious impediments or for serious reasons of convenience). These do not include the Chief Prosecutor's dissent with respect to the requests to be presented to the competent judge.

In Italy, public prosecutors are, as said, guaranteed complete autonomy from the executive power and any other form of power. In order to guarantee this, public prosecutors have become part of the judiciary and as such can enjoy the guarantees envisaged for Judges by the Constitution.

The decisions made by the public prosecutors can only be subjected to the control of judges, who can also challenge them. No form of political control is envisaged.

No public or private body or entity can provide them with directives or guidelines on how to carry out their activity. This is because the constitution establishes the principle that the prosecution is mandatory - a principle which is, in turn, a corollary of the principle of equality among citizens. On the basis of this principle, public prosecutors have to prosecute all the perpetrators of crimes that come to their attention, although they are not allowed to make any evaluations regarding criminal policy. The decision on whether and how the offender has to be punished can only be made by the adjudicating judge. However, once the decision has been taken, no judicial authority can alter it during the exercise of its activity. The above-mentioned constitutional bill has been criticised by some legal scholars as being abstract and impossible to enact. It would only be possible to respect the principle of the obligation to take criminal action in a criminal law system that only incriminates those acts that go against the fundamental rights of peaceful coexistence in society. On the other hand, it would become an unattainable ideal in a criminal law system like the current Italian one that is characterised by a saturated use of the criminal justice instrument. Within a legal framework of this type, the public prosecutor is inevitably informed of so many crimes that it would be impossible for him/her to prosecute them all. Therefore, de facto, the offices of the public prosecutor would have to decide which crimes are worth prosecuting. It has therefore been proposed to abolish the constitutional principle that prosecution is mandatory and to replace it with some form of politically controlled discretionary power. This proposal was rejected, however, on the basis that it would have too great political consequences and would harm the principle of equality of citizens before the law. In other words, there was a risk that those close to the parliamentary majority would in fact become criminally “immune”.

Public prosecutors cannot close a case autonomously by means of a simplified trial or by reaching a simple agreement with the person being investigated or indicted, without the involvement of the court. It is true that the Italian law system also envisages simplified means of “negotiated” sentences between the prosecution and the defence. But it is always necessary for the judge to control that they guarantee the principle of the obligation to take criminal action, which is a pillar of the Italian Criminal Procedure System. Thus, for example, according to the Italian system, the two parties can merely “propose” a negotiated sentence, while it is up to the judge to decide on the adequacy of the proposed sentence. The sentence can only be executed if the judge considers it appropriate.

6.5. The Organization of the Courts

The Italian criminal law system is divided into various adjudicating bodies. The first instance courts include the lower court (Pretura) or Magistrate's Court, the Tribunal and the Court of Assizes, each of them dealing with different types of crimes. While the magistrate is a mono judge, the Tribunal and the Court of Assizes are collective organs. The Tribunal comprises three magistrates, while the Court of Assizes has two professional judges and six laymen judges.

All these different first instance judges follow more or less the same procedure, although with a few minor differences. For example, preliminary hearings are not envisaged for cases dealt with by the magistrates’ court.

Once the reform instituting a single first grade judge comes into force, the lower court judges will be united with the Tribunal judges. These, in turn, will act as mono organs, except in cases of the most serious crimes, which are assigned to the Tribunal judges, who will then act as a collective organ.

The Court of Appeals reviews the decision of the Tribunal and of the Magistrate's Court, while the Court of Appeal of the Assizes listens to the appeals made against the Court of Assizes. The Court of Appeals has the same number of judges as the Tribunal (three judges), whereas the Court of Appeal of the Assizes has the same composition of judges as the Court of Assizes (two professional judges and six people’s judges). Law Decree 51 of 1998 has not modified the composition of the appeal judges. Therefore, the bill proposing a single judge envisages that the majority of crimes will be adjudicated by a mono first instance judge, whereas a panel will decide on appeals.

The Italian criminal law system provides for laymen judges, i.e. citizens who are not part of the judiciary but who are called upon to carry out judicial activities by deciding on the guilt or innocence of offenders of the most serious types of crimes. They act in the Court of Assizes and in the Court of Appeal of the Assizes, while they are not allowed in the other courts, i.e. the magistrates’ courts, the Tribunals and the Court of Cassation.

The highest appellate Court in Italy is the Court of Cassation. The role of the judges of this Court is limited to reviewing the decisions of an inferior court on points of law. The Court cannot therefore judge on the merit of the sentence. Nevertheless, it has often been argued that one of the reasons for which the sentences are brought before the Court of Cassation is the illogical reasoning of the judge when giving the motivation for the decision. Recently, even the President of the Court of Cassation criticised such attitude, and recommended that his colleagues avoid repeating this overlap between judging on the facts and judging on points of law.

It should be noted that the Court of Cassation does not only has the competence to evaluate whether the correct procedures were used, but also whether the criminal provisions were correctly applied when making the decisions. In fact, the Court of Cassation has the extremely important function of providing a uniform and homogeneous interpretation of the law. This does not mean, however, that its decisions can be used as a precedent for other cases. Since the Italian legal system does not use common law, the single judge must, when interpreting a law, decide on the objective meaning of that law. However, de facto, the decisions of the Court of Cassation do in some way influence the decisions of judges on similar cases. This is because a future decision that might be contrary to a law that has been considered uniform and constant by the Court of Cassation would have a high likelihood of being annulled by the Court.

6.6. Right to Defence and the Role of the Lawyer

Paragraph 2, Article 24 of the Constitution establishes that the right to defence is an inviolable right at every stage of the criminal proceedings. The Constitution also states, in paragraph 3 of the same Article, that suspects without the means to pay for a defence lawyer should be provided with proper means to defend themselves at all levels of Jurisdiction.

In compliance with these provisions of the Constitution, the Criminal Procedure Code regulates this right to defence during all the phases of the criminal procedure, as well as the role of the defence counsel and its powers. It establishes that the person who has been indicted or is under investigation can name up to two defence lawyers. If, for some reason, the defendants do not name two lawyers, a defence counsel is appointed by the Court from among those appearing on a list prepared by the Bar Association ("Consiglio all'Ordine degli Avvocati").

The defence must be present during the preliminary phase to make sure that the public prosecutor works in compliance with the law.

The defence counsel must always be informed before the person being investigated is questioned so that he/she can be present. In the case of searches, there are some exceptions to this rule when there are reasons to believe that traces of an offence or other physical evidence could be altered. The defence lawyer has the right to examine and keep a copy of the measures ordered by the public prosecutor and by the judicial police, and can also be present during searches and investigations. He/she can send memoranda and request to the public prosecutor.

As far as preventive custody is concerned, the police responsible for this is obliged to inform the suspect that he/she has the right to appoint a lawyer and then to immediately inform the appointed lawyer. The latter can intervene during the hearing of the person placed under preventive custody, which has to be carried out by the judge for preliminary investigations within five days after the commencement of custody.

As far as the persons who cannot pay for their defence are concerned, although Article 34, paragraph 3 of the Constitution guarantees them the means to defend themselves, it was believed by many that the law in force since the 1930s did not adequately protect this right for those people in difficult economic conditions. In order to overcome this problem, in 1990 Law 217 redefined the entire matter. Those earning less than a given amount (10 million of Italian liras in 1990 and adjusted annually according to the official inflation indices) are entitled, upon the presentation of a written request to appoint a lawyer of their choice who will be paid by the State.

In order to act in the legal profession, a lawyer must be a member of the Bar Association. It is possible to become a member of this Association after having worked for two years in a law firm and having passed a specific examination. Once this exam has been passed, a lawyer can appear on the Rolls and can practice law for any type of civil, penal or administrative case. However, before being admitted to work at the Court of Cassation, the defence lawyer must have worked at the magistrates’ courts for a certain number of years.

6.7. The victim’s position

The Italian criminal law system gives great importance to the victim or, according to the Italian legal terminology, the person offended (Persona offesa dal reato) by the act. The victim is identified as the possessor of the interest protected by the penal provision that has been violated and, as such, must be distinguished from the person who has physically been harmed, although this is often one and the same person. While the injured party has been damaged by the commission of the offence, the victim (i.e. the offended or passive person) is the owner of the good protected by the law. It is obvious that a person can be the damaged party but at the same time not be the offended one (the passive person): a classical example of this case is murder, where the relatives of the person killed are damaged persons but certainly not offended persons.

The distinction between these two figures is a very important one since the Italian Criminal Procedure Code gives the person offended by the act a series of rights and a greater power to intervene during the criminal process than to the simply damaged person. While both persons have the right to nominate lawyers, to appear as civil plaintiffs in the trial, to collaborate with the public prosecutor in ascertaining the responsibility of the offender so as to be able to claim compensation for damage, as well as to challenge a court decision, the victim alone is assigned an important role during the preliminary investigation phase. The victim can request the public prosecutor to carry out a preliminary hearing in which he/she can also participate. The victim can present memoranda and indicate elements of proof. He/she is informed about the request to close the investigations and can oppose this request, and finally, he/she is informed about the order to fix a preliminary hearing.

The injured parties can also decide to claim compensation for damage before a civil court only. In this case, if they had not acted as civil plaintiffs during the criminal proceedings, a possible acquittal in the criminal use is not effective in their civil case.

Some crimes can only be prosecuted following a request by the victim. Such a request is called a "querela": It is a private complaint with request for prosecution and has to be placed within ninety days from the commission of the offence. The "querela" is a prerequisite for the criminal proceedings to be instructed and is generally envisaged for minor offences, while serious offences are prosecutable ex officio.

Those that are injured by the commission of an offence have the right to compensation for the damage caused by the person responsible for the act. This right can be applied for both civil and criminal offences. In general, no form of monetary compensation from the society at large is envisaged. The only person who is obliged to compensate the damage is the offender and not the State.

This law has only recently undergone some changes. Law 108 of 1996, which has radically reformed the previous Code with respect to usury, has envisaged that the victim of this criminal activity should receive an indemnity from the State as a form of compensation for the damage. This provision was approved after much criticism and debate because there was a risk that some people might make false accusations for material gain. In order to avoid this possibility, State compensation can only be given when the persons accused of usury are indicted.

It was proposed that the State compensation scheme be extended to numerous other unlawful activities. However, this would be difficult because of Italy's current financial crisis - something that is being experienced by all the Western countries. Furthermore, reservations were expressed regarding this proposal in the light of the recent attempts to widen the use of compensation for damage as a sanction for the less serious forms of crime. This would mean that criminal law would focus less on limiting personal liberty as a sanction, and more on re-establishing a relationship between the victim and the offender based on the offender's social rehabilitation and the victim's right to compensation for the damage incurred.