3 Jul 2015

Investigation and prosecution phase under italian criminal procedure

Avv. Nicola Canestrini

The Italian legal system is that of a civil law State, governed by codified law. The first and initial code in the Italian Republic was established by the Fascist Government in 1930 and was kept until 1988. This code adopted an inquisitorial system.

In 1988, a new code was enacted and entered into force October, 24th, 1989.

This chose to abandon the inquisitorial system, but did not go so far as to represent a complete transition to an adversarial one.

The resulting system could be considered to be somewhere in between the two (although it is closer to being an adversarial system).

"The Italian criminal justice system is sometimes branded as semi-adversarial, but its legal culture and the Italian law in action in fact demonstrate an inquisitorial approach to fact-finding.

Since 1989, the trial is supposed to be party-dominated and strictly separated from the pre-trial process (investigations).It is the parties who present lists of evidence to be taken, and it is they who examine and cross-examine witnesses. But the judge can strike manifestly superfluous witnesses from the list, reject irrelevant lines of questioning, ask witnesses and experts additional questions, and can even, "if absolutely necessary", order additional evidence to be taken.

"As the italian Constitutional court has stated, the last sense of criminal proceeding is ?search for the truth?.

The supposed strict separation between pre-trial investigations and trial proceedings has not survived the very first years after the reform of the Italian criminal process: the law and the jurisprudence of the courts have since permitted the introduction of pre-trial statements under more and more liberal rules.If the Judge of the Trial is convinced beyond all reasonable doubt the defendant is guilty, the Judge must convict him; if not, the Judge must acquit. The Judge must also publish written explanations of his decisions.It is important to note that Italy does not try anybody by a jury of peers: the sentence is written and the verdict (and ) is decided by the judge himself (serious offenses have a 3-headed court of judges, or a 2-headed court of judges and 6 jurors).The parties can appeal against the sentence before the Court of Appeal (which rules on the merits again, usually without gathering any other evidence) and even before the Supreme Court (Corte di Cassazione).

"Criminal procedure starts when the public prosecutor becomes aware or is notified of a crime by criminal police or by any citizen.

According to the system provided for by italian Constitution (Sects. 104-105), public prosecutors belong to the judiciary and are independent of any other powers; particularly the public prosecutor is not a representative of the Executive to the judiciary.

According to the Constitution (Sect. 112), the prosecutor is under an obligation to take action in criminal cases, whenever there is sufficient evidence (reasonable cause) to charge a person with having committed an offence.

 As a result, the principle of legality strictly rules and no discretion is allowed to the prosecutor: once an offence has been reported, the prosecutor has no choice on whether to start proceedings or not, nor can he suspend or withdraw the action, whic must always end in a judicial decision.

 According to the legality principle, all reported offences are registered in the official records and proceedings are formally started for each of them; but the prosecutor in fact decides at his discretion which offences have to be promptly investigated and which ? in contrast ? will be dealt with only later.

 When the public prosecutor is notified of a crime, s/he is obliged to start the preliminary investigation and ? if perpetrator is known ? s/he has to enter the name of suspect in a dedicated register (Art. 335 Italian criminal procedure code).

 Investigations are carried out by the prosecutor and police, with the judge intervening only at the request of the parties.

"The judge for the preliminary investigations is a ?judge without a file?.

However, the judge for the prelimianry investigations does not have control of the investigation; on the contrary, he is a mere judge ad acta involved only in specific events at the request of the parties (usually the prosecutor); the trial judge is not presented with all of the typical information gathered by police and prosecutors during the investigation (e.g., witness statements).

Under italian criminal procedure the whole investigation process is carried out under the supervision of the prosecutor, who disposes of criminal police. The police itself has autonomy only in the very first stage of investigation, until the prosecutor has been noticed. After prosecutors? intervention, the police carries out delegated activity (with some limited exceptions).

 After having performed the investigation, the public prosecutor decides if the suspected, in the meaning of indagato which means under investigations, has to face the trial in the different forms provided by criminal procedure.

If the prosecutor goes on, he issues a summons or asks the judge to issue same (procedure depends on charge).

From that moment, which is excercise of criminal prosecution, the suspected becomes an accused (imputato).

Article 60 of Criminal procedure Code, entitled ?Becoming an accused person?, rules that

 ?A suspect becomes an accused person when he is charged with an offence in a request for committal to trail, immediate trial, criminal decree of conviction, application of punishment under Article 447, par. 1, in the decree of direct summons for trial and direct trial. (.,.)?

explaining that this status is maintained at any stage and instance of the further proceeding until the judgment becomes final (res iudicata).

Suspect and accused have same guarantees (as per express ruling of art. 61 it. Criminal procedure Code).

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