Serious criminal cases may begin with an arrest: an arrest in Italy may happen with or without an arrest warrant issued by a judge.
Please note that an unlawful arrest (or an early release) does not necessarily mean that the criminal case is over.
1. ITALIAN ARREST WARRANTS
An arrest warrant is a judge's order called "ordinanza di custodia cautelare" to police to arrest someone and to take her/him into custody. Legal rules govern how warrants are issued, making sure there's good reason for the warrant ("probable cause").
The person named in the warrant is accused of an offense based on one or more document types filed with the court. These include indictments, informations, complaints, ..
The accused has the immediate right to see his attorney, before being arraigned by a judge; the hearing has to be held within 5 days from the execution of the arrest warrant.
The warrant can be appealed within 10 days from its execution before the Court of Freedom ("Tribunale del riesame", also called "Tribunale della libertà"). Full access to the case file is granted.
If the accused does not have an attorney, the Public Prosecutor's office will select a State appointed attorney (difensore di ufficio) from an available list of attorneys; please note that the State appointed attorney is not a public defender as in the US but a self-employed professional who is appointed by the State until the defendant appoints an attorney.
2. WARRANTLESS ARRESTS
Article 13 of the Italian Constitution states that in exceptional cases of need and emergency that are expressly indicated by law, the police can adopt certain forms of restriction of personal liberty (= arrest).
Article 13 also says that acts of physical AND moral violence against persons subjected to restrictions of personal liberty are to be punished.
A warrantless arrest buy police is mandatory in Italy for serious crimes when:
1. a police officer witnesses the commission of a crime (arresto in flagranza, i.e. in the state of flagrancy in its strictest sense), or;
2. a person is found in possession of tangible evidence of a crime.
Once the person has been arrested, the police officer must notice the Public Prosecutor within 48 hours; the Public Prosecutor can release the arrested person or ask for the approval of the preliminary investigative judge within another 48 hours. The Public Prosecutor can order an arrest himself while an investigation is pending, if there is very serious incriminating evidence against the accused or if there is a danger that s/he might flee the jurisdiction.
During the 48-hour period thereafter, a hearing must be held (with partecipato of the defendant and the defense attorney) for the formal approval from the judge; same judge can approve / disapprove the arrest and the defendant remains in jail only if a preventive (or precautionary) measure (the arrest warrant) is issued.
Even if the defendant is released the criminal case goes on.
At the hearing, the public prosecutor and the defense counsel present their cases and the preliminary investigative judge can either:
disapprove the arrest, denying preventive detention and order the immediate release of the accused, or;
approve the arrest, ordering preventive measures (such as preventive or pre-trial detention with an arrest warrant).
Defense counsel's presence is mandatory during the interrogation of the accused; self defense is not permitted under Italian law. The accused has the immediate right to see his attorney, before being arraigned by a judge. If the accused does not have an attorney, the Public Prosecutor's office will select a State appointed attorney (difensore di ufficio) from an available list of attorneys.
A foreign defendant - or the defence, at least - should make sure that the translation / interpretation rights are respected.
3. ARRESTED PERSON'S RIGHTS
The arrested person has the right that the police (and not himself) inform a relative or the embassy and the attorney (private or state-funded).
The accused has the immediate right to see his (court appointed or self appointed) attorney. Even relatives can appoint an attorney for the arrested person (they have to prove the relationsship).
We suggest that:
the arrested should use his right to silence;
non-Italian speakers should always ask for translation;
the arrested should not sign anything
until an attorney is involved (who, as mentioned, can even be appointed by a relative).
The Italian Constitution plays a key role in criminal law because it defines important individual rights that must be preserved even in a state prosecution involving a state crime.
The Constitution guarantees a right to a fair trial, the right to cross-examine witnesses, the right toremain silent (on grounds of self-incrimination), the presumption of innocence, the right to berepresented by a lawyer, and the right to be free of cruel or unusual punishment.
The State can pay for attorneys for indigent citizens (offenders or victims).
Please note that an arrest due to an Interpol red notice / SIS II notice (often out of a hotel room) will lead to an extradition proceeding or an European Arrest Warrant proceeding the procedure is quite different from the one described above: in any case, a hearing will take place and the arrested can deny his consent to extradition / surrender.