Italian Code of Criminal Procedure

The Italian Code of Criminal Procedure contains the rules governing criminal procedure in every Court in Italy. The first Code, the Italian Republic had, was enforced by the Fascist Government in 1930 and was kept in force until 1988. This Code adopted an inquisitorial system. In 1988, a new Code was enacted, that chose to abandon the inquisitorial system, not completing the transition to an adversarial one, though. Italian Criminal Procedure is now somewhat in-between.

Parties

The most important parties to a criminal trial are the Judge , the defendant and the Pubblico Ministero (the prosecutor) . There are other parties that are not necessary and they are the Polizia Giudiziaria (Judiciary Police, a branch of the Police whose duty is to help a prosecutor during his investigations) , the parte lesa (the injured party), the responsabile civile (civilly liable, who can be compelled to pay damages, if the defendant is not solvent) and the civilmente obbligato per la pena pecuniaria (civilly liable, who can be compelled to pay the fines, if the defendant is not solvent).

Pubblico Ministero

The Pubblico Ministero is the one who, during the preliminary investigations, must look for evidence. Since he is a member of the Judiciary (technically, a Magistrato - Magistrate -, though not a Giudice - Judge -), he must try and find out the truth, that's why he must not only look for evidence that can lead to a conviction, but also that which may lead to an acquittal.

Preliminary Investigations

When a Pubblico Ministero or a member of Polizia Giudiziaria becomes aware of the fact that a crime was committed, he must begin his investigation: in Italy, the public prosecutor has the duty to initiate criminal proceedings . The indagato (the person who is suspected to have committed the crime) can charge is lawyer to investigate on his behalf, in order to prove his innocence. The Pubblico Ministero can appoint experts to carry out examinations; and, when the examination cannot be repeated - for instance, an autopsy -, he must inform the indagato, so that he can appoint another expert, to ensure his right of defense. In case of interrogations, of searches and of seizures, the imputato can ask that his lawyer be present.

Judge for the Preliminary Investigations

During the preliminary investigations, a Judge only seldom intervenes. The Giudice per le Indagini Preliminari (Judge for the Preliminary Investigations) controls the actions of the Pubblico Ministero, when the personal rights of the indagato are at stake. No imputato can be wiretapped, unless the Judge for the Preliminary Investigations has authorised it. All measures must be adopted by the Judge with an order and he must also publish written explanations of his decisions.

Precautionary measures

These measures, adopted during the preliminary investigations or afterwards, aim at preventing the defendant from fleeing, from committing another crime or from destroying true evidence or creating false one. They cannot be adopted unless there is proof that the defendant has committed a crime (fumus commissi delicti). The Judge competent to adopt these measures is the Judge for the Preliminary Investigations or the Judge of the Trial, according to the phase of the proceeding they are in, when the Pubblico Ministero asks that the defendant's rights be limited.

There are many kinds of precautionary measures:

1. Coercive measures:

1. prohibition to leave the country;

2. duty to go to the nearest police station on given days;

3. expulsion from one's family house;

4. restraining orders;

5. prohibition or duty to dwell in a given place;

6. house arrest;

7. provisional arrest;

2. Interdictive measures:

1. suspension of parental authority;

2. suspension from a public office or service;

3. temporary interdiction from practising given professional or entrepreneurial activities;

3. real measures:

1. precautionary sequestrations;

The defendant can appeal against the order of the Judge before the Tribunale della Libertà (Court of Liberty). This Court can uphold, modify or quash the Judge's order. Its decision can be appealed before the Corte di Cassazione (Court of Cassation).

The CL (Court of Liberty) actually reviews all the evidence and must render its decision within ten days of the appeal.

The Corte di Cassazione, on the contrary, cannot rule on merits).

Preliminary Hearing

When the preliminary investigations are over, the Pubblico Ministero thinks that the evidence he gathered could not justify a convictions, he must archiviare the notitia criminis (he must drop the charges). If, on the contrary, he deems he can make his case, he summons the defendant to appear before the Judge of the Preliminary Hearing (JPH).

Before the JPH, the Pubblico Ministero presents all the evidence he has gathered so far; the defendant can make his case and try to prove his innocence. The JPH, if convinced of the defendant's innocence or that the evidence gathered would not be enough to justify a guilty verdict, passes a sentence of non luogo a procedere (no grounds to proceed).

Should new evidence be found, the Prosecutor may ask the Judge for the Preliminary Investigations (JPI) that this judgement be revoked. During the hearing, before the JPI, the defendant can be assisted by his lawyer. If the sentence is revoked, the Prosecutor must, once again, summon the defendant before the JPH.

If, on the contrary, the JPH thinks that the evidence gathered so far is enough to justify a guilty verdict, he issues a decreto (order ) of rinvio al giudizio (indictment).

All the evidence gathered so far is, then, expelled from the defendant's file, with the exception of those pieces of evidence that cannot be repeated or that were gathered in the defendant's presence and in that of his lawyer or his experts.

Trial

During the dibattimento (trial), both the Prosecutor and the defendant try to make their case.

Article 111 of the Italian Constitution states that

2. Trials are based on equal confrontation of the parties before an independent and impartial judge. The law has to define reasonable time limits for the proceedings.

3. In criminal trials, the law provides for timely and confidential information of the accused regarding the nature and reasons of charges brought against them; they are granted the time and means for their defense; they have the right to question those who testify against them or to have them questioned; those who may testify in favor of the accused must be summoned and examined under the same conditions granted to the prosecution; any evidence in favor of the accused must be acknowledged; the accused may rely on the help of an interpreter if they do not understand or speak the language of the proceedings.

4. In criminal trials, evidence may only be established according to the principle of confrontation between parties. No defendant may be proven guilty on the basis of testimony given by witnesses who freely and purposely avoided cross-examination by the defense.

During the Trial, all the witness must bear testimony once again, so do the expert, all the experiments, conducted during the preliminary investigations, must be repeated is possible and so on, to allow the defendant to actually participate in the process of formazione della prova (proof formation).

If the Giudice del Dibattimento - Judge of the Trial - is convinced beyond any reasonable doubts the defendant is guilty, the Judge must convict him; if not, the Judge must acquit. The Judge must also to publish written explanations of his decisions.

Appeals

Both the defendant and the prosecutor can appeal against the judgement before the Corte d'Appello (Court of Appeals), that will retry the defendant. The judgement passed by the Court of Appeals can be appealed against before the Court of Cassation, that cannot rule on merits. It is important to stress that both the Court of Appeals and the Court of Cassation must examine and rule on every appeal. They can uphold, modify or quash the sentence.

Judges of the Trial

It is important to note that Italy does not try anybody by jury. Everyone is judged by professional Judges or by a panel of Judges (three or five or nine). The only exception to this is the Corte d'Assise, that is made up of eight Judges, two of them are professional, six are lay (they are called Giudici Popolari - Popular Judges-). They are not technically jurors. In Italian, Giudice (Judge) refers both to the eight of them together as a collective body and to each of them considered separately as a member of that body.

Since Popular Judges are not Jurors, they cannot be excused, unless there are grounds that would justify an objection to a Judge. Also, they are not sequestered because a Trial lasts too long: an Italian trial, including the preliminary investigations, preliminary hearing, trial and appeals, can last several years. To keep a citizen - who continues to work, while serving as a Popular Judge - sequestered for years would be unfeasible.