The Italian prosecutor embodies a peculiar combination of official duties and actual practices: he is formally a member of the judiciary independent of the political branches; he is charged with impartial investigations of crime but is likely only to gather damning evidence; he serves as a party in the presentation of evidence at trial yet is empowered to act on behalf of the defendant after trial; and ultimately, he is bound to impose the court?s sentence.
A prominent scholar once described the Italian Prosecutor using the oxymoronic term ?impartial party.? Today, the prosecutor has become an inquisitorial figure in adversarial proceedings, the result of a long-term experiment in criminal procedure reform. In many ways, he remains a work in progress. This chapter will explore the background and function of the Italian prosecutor, noting along the way the ongoing issues of debate that will shape the future of the Public Prosecution Service.
Author: Prof. Michele Caianiello, "The Italian Public Prosecutor: An Inquisitorial Figure in Adversarial Proceedings?" (December 23, 2011), in TRANSNATIONAL PERSPECTIVES ON PROSECUTORIAL POWER, E. Luna, M. Wade, eds., Oxford University Press, 2011. Full version (footnotes included) available at SSRN: http://ssrn.com/abstract=1976204.
The Public Prosecution Service was first created a few years after the nineteenth century birth of the Italian state, taking as a model the French Napoleonic system. At that time, it employed a hierarchical scheme centralized at the national level and under the direct control of the Ministry of Justice.1 The Prosecution Service was thus conceived as an agency to ensure observance of the law, the prompt and regular administration of justice, to protect the rights of the state, to promote the suppression of crime and the application of security measures, and to execute judicial decisions. Since the adoption of the Constitution in 1948, however, prosecutors have belonged to the judiciary and are guaranteed the same independence and tenure as judges? both being classified as ?magistrati? (judicial officers), both being selected by the same competitive process of examinations, and both being able to move from one function to the other at their own request.
The inclusion of prosecutors within the same constitutional category as judges conceptualizes the prosecutorial function as judicial, or at least quasi-judicial. Indeed, the proper functioning of the judiciary is contingent upon the prosecution?s effective discharge of its duties, all in support of the adjudicative role of the court.2 In essence, those duties involve the investigation of crime and its prosecution at trial. The Prosecution Service does not have a formal role in preventing crimes, which is an executive task of the police. In general, prosecutors are not responsible for supervising police activities as such, and, with some slight exceptions, they do not hold a disciplinary power over the police. During investigation, however, a prosecutor has the power to exercise control over those units among the police corps that help and support investigative actions?the so-called polizia giudiziaria (judicial police)?with the prosecutor giving orders and directions to the police in the investigation process.3 In such activities, the Italian Prosecution Service is viewed as an objective body.
The prosecutor is formally charged with being impartial during a preliminary investigation, uncovering both inculpatory and exculpatory evidence for a given suspect.4 But in practice, this duty is considered a ?ghost provision,? as a prosecutor normally only searches for evidence against a suspect. At the trial stage, the prosecution acts as a party, introducing evidence against the accused in support of his conviction, with the presence of defense counsel allowing the prosecutor to be more aggressive and explicitly partisan. Although admittedly rare, the prosecutor may close his arguments by asking for an acquittal. In fact, the prosecution may appeal a defendant?s conviction, as well as seeking a reduction of sentence, all in order to ensure that justice is done. But once the appellate process is over, the prosecutor has no discretion and must execute the sentence pronounced by the court.
In the end, the Italian prosecutor embodies a peculiar combination of official duties and actual practices: he is formally a member of the judiciary independent of the political branches; he is charged with impartial investigations of crime but is likely only to gather damning evidence; he serves as a party in the presentation of evidence at trial yet is empowered to act on behalf of the defendant after trial; and ultimately, he is bound to impose the court?s sentence. A prominent scholar once described the Italian Prosecutor using the oxymoronic term ?impartial party.?5 Today, the prosecutor has become an inquisitorial figure in adversarial proceedings, the result of a long-term experiment in criminal procedure reform. In many ways, he remains a work in progress. This chapter will explore the background and function of the Italian prosecutor, noting along the way the ongoing issues of debate that will shape the future of the Public Prosecution Service.
II. The Framework of the Italian Prosecutor
A. The New Accusatorial Code of Criminal Procedure
The current Italian Code of Criminal Procedure (Codice di Procedura Penale) was adopted in 1988 and came into effect a year later. Compared to its predecessor, the new code has a completely different profile, inspired by the Anglo-American systems of criminal procedure.6 After World War II, and especially since the end of the 1950s, scholars increasingly began to criticize the code, which was considered to be a remnant of the inquisitorial model inherited from the fascist era of the 1930s. The post-war Constitution of the Italian Republic provided the starting point for a movement in the field of criminal law and criminal procedure that sought to protect the rights of the accused.7 Subsequent reforms improved the rights of the defense, in particular by permitting the counsel of the indicted person to participate in the actions performed by the investigating judge. After more than twenty years of political pressure, academic studies, and Parliamentary debate, the drafting of the 1988 Code replaced the modified ?old system? with a code derived from the adversarial model.
Investigations are carried out by the prosecutor and police, with the judge intervening only at the request of the parties. The code further empowers the defendant and counsel for the crime victim to conduct private investigations. The judge for the preliminary investigations? usually defined as a ?judge without a file??intervenes only in exceptional cases when the restriction of fundamental rights is involved. However, this judge 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). At trial, the parties have the right to present evidence and to cross examine witnesses. However, the trial judge is not presented with all of the typical information gathered by police and prosecutors during the investigation (e.g., witness statements). Rather, the judge receives only limited materials gathered through the investigation, which is then supplemented with evidence presented in court.8
As a consequence of the reform, the new code distinguishes between the investigation and the trial in court, based on the assumption that the probative value of evidence is affected by the manner in which it is collected. Inspired by the Anglo-American criminal procedure systems, the code drafters believed that the best environment for proving the facts and discovering the truth is a context in which opposing viewpoints are present. As a consequence, a court verdict must be based solely on evidence collected orally at trial and subjected to cross-examination. The symbol of the separation between the investigative and trial phases is the ?double-dossier system.?9 During the preliminary stage of criminal proceedings, all records and documents are collected in a traditional investigative dossier. At the end of the investigation?or after the preliminary hearing in cases featuring judicial scrutiny to ascertain probable cause?this dossier is set aside and made available only to the parties, who can use it to prepare for trial or to challenge witnesses? credibility during their trial testimony. The trial judge will never see the investigative dossier and instead is given a completely new dossier, the trial dossier, which contains only the evidence collected during trial and information that is impossible to reproduce in court (e.g. wire-tapping evidence, records of police searches, and records of prior convictions of the accused).
In the first years after the code?s adoption, it became clear that the newly introduced system had not been completely accepted by the main criminal justice actors, especially the judiciary. This hostility to the 1988 reforms generated two divergent strands of law. Many of the new provisions were nullified by Italy?s Constitutional Court?thereby restoring the old system and frustrating the code?s strict separation between investigation and trial?and other provisions were interpreted and applied by the judiciary in a way more consistent with the previous inquisitorial model.10 In 1999, however, Parliament amended the Constitution and largely reinstated the accusatorial model. With limited exceptions, all evidence in criminal cases now must be presented at trial, in front of the parties and an impartial judge. Investigative records and police testimony relating to statements collected during the investigation may only be introduced at trial to impeach a witness?s testimony. Moreover, a defendant cannot be found guilty based on evidence from a witness who has refused to be scrutinized by the court process.
B. The Remaining Features of the Continental Tradition
Despite its accusatorial ambitions, the 1988 Code did retain some aspects of the traditional continental model. One such feature is the legality principle, which the drafters incorporated for all aspects of criminal proceedings.11 According to the Constitution, the prosecutor is obliged to take action in all criminal cases, no matter how slight the offense. Prosecutors have no discretion whether to prosecute, nor to suspend or withdraw an action, which must always end in a judicial decision. Another inquisitorial feature preserved in the code is the judge?s power to introduce additional evidence when he cannot decide the case on the evidence submitted at trial. In such a situation, the judge may introduce evidence unilaterally or ask the parties to submit evidence on specific issues. The judge?s power can only be exercised at the conclusion of the parties? cases.12
The 1988 reform also retained professional judges as fact-finders, with the sole exception being for major crimes tried in the corte d?assise [Court of Assize], which uses a hybrid panel composed of six lay judges and two professional judges. Regardless, all judicial decisions must be fully reasoned in a written judgment. Moreover, the new code did not alter the position of prosecutors as members of the judiciary, thereby maintaining the ?objective? conception of the prosecutorial role as relic of Italy?s inquisitorial past. As mentioned in the introduction, the Public Prosecution Service was under the direct control of the Minister of Justice for more than eight decades. This link to the executive power was broken by the 1948 Constitution, which guaranteed both judges and prosecutors complete independence from any political body.
Neither the 1988 Code nor the 1999 constitutional amendment have formally changed this status. The prosecution?s independence from political power is both explicitly stated in the Constitution and implied by other provisions.13 For instance, the Constitutional Court has referenced the legality principle as necessitating the independence of prosecutors. Because the decision to prosecute in cases supported by sufficient evidence is obligatory rather than discretionary, the prosecutor must be left free to obey the law without external interference from any political actor. In other words, since criminal policy is governed exclusively by the law, it would be illogical to place the Prosecution Service under the direction of a political body. Further evidence is provided by the constitutional provision making prosecutors members of the Higher Council of the Judiciary (Consiglio Superiore della Magistratura), a self-governing institution designed to assure the effective independence of the judiciary.
Most statutes and administrative rules seem to confirm that the Prosecution Service is not linked to the Ministry of Justice. Prosecutors are appointed after a public examination by the Higher Council of the Judiciary, which is also competent for all decisions regarding career progress and disciplinary measures for prosecutors. Moreover, the Minister cannot impart any kind of order or instruction to prosecutors, nor can he interfere with the exercise of judicial and prosecutorial functions. Instead, the Minister?s task is to supply the material resources needed in order for the system to work properly.
C. De Facto Dossier Consultation and Prosecutorial Discretion
As is true in all criminal justice systems, there is difference between what the law provides or anticipates and what is allowed or acquiesced to in practice. Consider, for instance, the ostensibly strict limitations on a trial judge?s review of materials in the investigative dossier. If a judicial order of pre-trial detention is issued, the law permits the trial judge to consult the pre-trial detention file at any time, based on the idea that the judge could amend the pre-trial detention order or even release the defendant. The file includes previous custodial orders issued during the proceedings and evidence collected by the prosecutor that would be inadmissible at trial because of the hearsay rule. Although such materials cannot be used at trial to adjudicate the case, their influence on trial judges is undeniable. In fact, the judges can consult the pre-trial detention file at any time, representing the most evident derogation from the double-dossier system and threat to the presumption of innocence.14
Likewise, mandatory prosecution pursuant to the legality principle is far from absolute in practice. On a daily basis, prosecution offices have to deal with too many cases, making it impossible to scrutinize each one. The situation is exacerbated by huge dockets resulting from decades of inefficient administration of justice. Under these circumstances, it is inevitable that prosecution offices will neither process all the information nor investigate all of the crimes. Besides, statutory provisions are progressively incapable of addressing prosecutorial practices, due to the growing complexity of the system?which has been gradually influenced by external sources of both European and international origin?and by judicial decisions of supranational bodies, such as the European Court of Human Rights. Despite the legality principle, then, legal provisions are gradually less able to render the system predictable and homogeneous in its application. The interpretative options are proliferated, and judicial and prosecutorial activism in legal interpretation is undeniably frequent. For all these reasons, even though the Constitution prohibits prosecutorial discretion, it is clear that such discretion exists; and although it is hard to precisely measure its extent, the discretion is undoubtedly quite broad.
Formally, the prosecutor must record every notification of a crime (notitia criminis) in a specific register, and then he must investigate that crime, ending the inquiry either with a formal decision to charge the accused or with a request for dismissal filed with the court. In reality, however, prosecutors often fail to register many notifications of crimes, and they do not take any investigative steps for many registered crimes. Instead, they wait for the maximum amount of time to elapse in which a preliminary investigation can take place, and then they file a dismissal request. In January 2008, for instance, officers of the Minister of Justice uncovered a closet with more than 2,000 apparently forgotten files during an inquiry involving the Office of the Prosecutor of the Tribunal of Bologna.15
D. Reform Perspectives and Political Debates Concerning the Italian Prosecutor
Although the Constitutional Court long held that the prosecution is fully independent from political bodies, scholarly debate continues to this day. On the one hand, for instance, the Minister of Justice is empowered to bring disciplinary action against a prosecutor, which is then to be determined by Higher Council of the Judiciary. Likewise, recent legislation allows the Minister to select from a list the General Appeal Prosecutor, who is the Chief of the Prosecution Office attached to the Court of Appeals. The Minister is also called to express an opinion on the procedure for conferring an extension of all the directive roles in the judiciary, both of judges and prosecutors.16 On the other hand, some scholars and politicians have strongly criticized the preservation of the prosecutor?s quasi-judicial position, which has practical consequences for criminal proceedings and violates the equality of arms principle. According to these critics, judges are structurally more proximate to the prosecutor than to the defendant; and for this reason, there is a continuous risk that the judge will have a natural affinity for his fellow magistrati and be predisposed to rule in favor of the prosecution during the preliminary investigation and at trial17
Moreover, critics argue that the myth of mandatory prosecution renders prosecutors unaccountable for their de facto discretion in case decision-making. Paradoxically, the legality principle has been shown to shield prosecutors from any political responsibility, making them independent but not accountable for most of their choices. In the past few years, the most influential association of Italian criminal lawyers, the Penal Chambers (Camere Penali), has been fighting at political and social levels for the separation of the prosecutor from the judiciary. Because prosecutors are the ?gatekeepers? of the criminal justice system, with the exclusive power to initiate a criminal proceeding, they should be subject to some form of political accountability.18 However, other scholars and politicians believe that separating the prosecutor from the judiciary could endanger the independence of the latter, vesting too much power in the political branches. Precisely because prosecutors are the system?s gatekeepers, the executive could end up controlling the most powerful instrument in the administration of criminal justice. Over the past twenty years, for instance, political forces have proven incapable of responding to the disquieting levels of government corruption, with the only effective anti-corruption efforts coming from the judiciary and, in particular, prosecutors. It is argued, then, that placing the prosecution under executive control would undermine the important fight against corruption.19
To achieve a satisfactory compromise between prosecutorial independence and accountability, many scholars have supported the idea of ?priority criteria,? a body of guidelines setting out criteria and provisions to control prosecutorial discretion, providing a level of consistency and predictability in prosecutorial choices. Many scholars believe that priority criteria could be approved via specific acts by the Parliament, while others think that criteria should be promulgated by the executive or the Highest Council of the Judiciary. Over the past decade, Parliament has twice approved specific provisions setting priority criteria.20 The results have been controversial, with some scholars arguing that the provisions were so generic that they left the prosecutors the same broad discretion as before and did nothing to improve the consistency and predictability of the system.21
III. Prosecutorial Powers in Investigation and Charging A. Notice of Crime and Investigative Powers
As noted earlier, a prosecutor has the constitutional prerogative to avail himself of the police during the investigation stage. Indeed, prosecutorial control over the police is considered an inevitable implication of the mandatory prosecution principle. Executive interference with the activities of the judicial police would infringe upon the values forming the basis of mandatory prosecution?the legality principle, independence of the judiciary, and individual equality before the law. Otherwise, the prosecution would be beholden to the results gathered by a body controlled by the executive, that is, the police. The Italian system therefore draws a line separating the two typical police functions, public security and judicial police activity, with the latter under prosecutorial control.22 Although the prosecution is still the dominus of the investigation?in fact, a prosecutor can start an investigation on his own initiative proprio motu, without waiting for the police to provide notice of a crime?recent years have witnessed an enhanced police role.
Generally, the police are the first authority to deal with an offense, required to take the necessary steps to protect evidence and to gather any other element that may be useful for the enforcement of the criminal law. Only at the earliest stage of an investigation are the police somewhat independent of the prosecution. The police must report every offense to a prosecutor without delay and to inform him of the basic facts, the evidence collected, and the investigations carried out.
Once the prosecutor has received notice of a crime, he assumes control of the investigation and has the duty to take all necessary steps to determine whether a crime has, in fact, been committed and whether there is enough evidence to prosecute the crime. The prosecutor can employ a number of investigative measures, including searching people, premises, and places, seizing items, and questioning individuals. Most of these acts can also be delegated to the police by instruction, except for custodial interrogations and forced taking of biological samples (with some exceptions, however). The police also maintain a degree of autonomy. On their own initiative, for instance, the police may summon and question witnesses, victims, and suspects not in custody. Moreover, the police can search persons and premises without a warrant when someone is found in the act of committing a crime (in flagranza), although the search and any seizures must be validated by the prosecution.
Prosecutors can issue specific instructions about investigative acts to be conducted by the police, such as summoning and questioning a witness and performing a search. Or prosecutors can provide generic instructions that indicate only the kind of information that should be gathered, providing the police the discretion to choose the most suitable means for reaching the targets. In practice, the police have broad discretion in cases of minor importance. A prosecutor ordinarily provides limited supervision during the course of an investigation, leaving it the police to set the agenda and ask for prosecutorial orders as needed.23 Only in serious cases does a prosecutor exercise any real control over the work of the police through hands-on direction of the investigation. However, the police are not entitled to use special investigation methods, like agents provocateurs [provoking police agent], infiltrations, and undercover operations, without a prior approval by or subsequent notification to the prosecution.
B. Coercive Powers
The detention of a person suspected of a crime can only be ordered by a judge at the request of a prosecutor, when there are reasonable grounds to believe that the person is about to destroy evidence or is about to escape or to commit other offenses. The prosecutor is entitled to arrest a person provisionally (fermo di indiziato di delitto) when there is sufficient evidence against him and a reasonable risk of flight. Within forty-eight hours, however, the prosecutor must request that the judge validate the arrest and order detention of the suspect. The fermo can also be ordered by the police under the same conditions, when the prosecutor has not yet assumed the direction of the investigation or when, due to urgency, it is not possible to wait for his decision. Within twenty-four hours, the police must communicate the arrest to a prosecutor, who, in turn, must request judicial validation of the arrest.
The prosecutor can summon and question witnesses, interrogate the suspect, order a search of premises and a seizure of the corpus delicti or other related items. However, in many cases, the aforementioned tasks are delegated by the prosecutor to the police. When it is necessary to attain the corpus delicti or other objects pertaining to the crime, the prosecutor has the power to issue an order to search the suspect?s or other person?s premises and to seize what might be relevant to the investigation. In exceptional cases?in cases of urgency, flagrancy, or at the moment of the arrest of the suspect?the police may conduct on-site autonomous searches of the suspect. Within forty-eight hours, the police must transmit the file of the searches and seizures to be sanctioned by the prosecutor, who must validate them within the next forty-eight hours. Provisions regarding DNA samples were recently reformed, generally requiring a judicial order for the samples to be admissible at trial. In cases of urgency, a prosecutor may order the taking of a DNA sample but must apply for a judge to validate the operation within forty-eight hours. An analogous policy is provided for the interception of communications. In general, a judicial order is necessary except in cases of urgency, where a prosecutor can issue the order to intercept followed by a request for court validation within twenty-four hours.24
If the above processes are not followed, the evidence obtained can be deemed inadmissible at trial. But despite the seemingly strict code provisions regarding, for instance, the interception of communications, a judge usually authorizes the interception not only in serious cases but also in investigations of relatively ordinary significance. The judge for the preliminary investigation is usually keen to authorize the requests of interception presented by the prosecution, which is done inaudita altera parte (ex parte) and based only on the elements presented by the prosecution themselves. Moreover, the prosecution is not obliged to disclose to the judge all the information gathered, but only those facts which are relevant and demonstrate the probable cause for the issuance of the warrant. It should also be noted that, on application of the police to prevent the commission of most serious crimes, the prosecutor can issue an order for the so-called ?preventive? interception of communications. These interceptions can be used only to develop further investigations, but they cannot themselves be admitted as evidence in any stage of the criminal proceeding. Despite these limitations, preventive interceptions have become a powerful tool in the hands of the prosecution.
If a prosecutor intends to interrogate a suspect, he must summon the person by writ, giving notice to opposing counsel at least twenty-four hours in advance (except in cases of urgency). If a suspect has not yet elected a lawyer, a prosecutor must appoint and inform a duty lawyer. The summons must contain an exposition of the facts of the crime for which the suspect is under investigation.25 Prior to questioning, prosecutors must warn the suspect of his right to remain silent. The suspect must be admonished that any statement made regarding other persons may make him a witness to the crime, for which he has no right to silence.26 The failure to give the required warnings renders any statements inadmissible as evidence at trial. If a witness is being questioned and gives self-incriminating statements, the prosecutor must immediately stop and warn the witness that he may be investigated as a consequence of the statements. The witness must also be notified that he has the right to be appointed counsel. Any statement given prior to that point can only be used against other persons who might be involved in the crime at issue.27
C. Priority Criteria
As previously noted, the constitutionally based principle of mandatory prosecution had become inefficient and impracticable. Given organizational difficulties and the limited manpower of the prosecution, it is simply impossible to investigate and prosecute all reported offenses. For years, scholars and practitioners have debated whether the principle of mandatory prosecution should be limited or even replaced with the opportunity principle, but no important modification has been introduced. At least in routine cases, the prosecutor often has the discretion as to which offenses will be prosecuted and which can be disregarded, with the latter resolved by the expiration of the time period for prosecution (prescrizione).
In practice, prosecution offices often set general priority criteria, although these standards are meant for internal use only and are seldom, if ever, made public. Instead, discretion reigns through a de facto opportunity principle, with prosecution offices screening offenses to be investigated according to their own general policies. Typically, the first stage of the decision- making process is based on criteria regarding the seriousness of the offense and community needs. Nonetheless, any criminal policy is beyond the control of Parliament, the executive, and the courts? decisions, and indeed, individual case decisions will be pursuant to the interpretations and application of the policy by each prosecutor. As a result, there is a genuine threat of arbitrary or inconsistent decisions and even political pressures.
Some have argued that the introduction of the opportunity principle could reduce prosecutorial workloads and economize the investment of time and resources. But unlimited prosecutorial discretion, based on political rather than technical reasons, would be inconsistent with the constitutional independence of the Prosecution Service by subjecting its members to the hierarchical power of the Minister of Justice, who, in turn, is accountable to the Parliament, thereby permitting directly political influence in the administration of justice. As mentioned earlier, it has been suggested that general and reasonable priority criteria should be established? with, for instance, the Parliament laying down specific standards on an annual basis?which would provide guidelines for all prosecution offices and ensure effective judicial control and equal treatment of all persons. At the moment, however, this proposal is not a parliamentary priority, and previous legislative interventions of this type were strongly criticized at both the political and academic level.28
D. Dismissal Requests, Bargain with the Accused, and Other Special Proceedings
A prosecutor ordinarily has six months to complete an investigation, which can be extended to one year for the most dangerous and complex crimes. In situations of reasonable need, the prosecutor can ask for another six months, which can be extended for a second six- month period but only after demonstrating the particular complexity of the investigations or specific factors preventing a speedy resolution. The maximum time limit, then, is normally eighteen months for ordinary crimes and twenty-four months for the most dangerous and complex cases.
Once the investigation is concluded, a prosecutor may either file an indictment or request a judicial leave for a dismissal.29 When the investigation?s time limit expires with no evidence having been produced against the defendant?or before the expiration of time when clear evidence demonstrates the defendant?s innocence?the prosecution must file a request for dismissal. The decision to dismiss the case cannot be made by the prosecution due to the legality principle. Instead, the power of dismissal is lodged with judges, specifically, the judge of the preliminary investigations. Once a judge has received the request for dismissal from the prosecutor, he can either dismiss the case or, if there is enough evidence, order that the case be prosecuted. Judges can even order the prosecution to carry out further investigations when the prosecution?s inquiry displays deficiencies. But as mentioned, de facto prosecutorial discretion in charging decisions is exercised by waiting the lapse of time to conduct a preliminary investigation, followed by filing a dismissal request that is granted pro forma.
Besides expiration-based dismissals, the criminal procedure code allows investigations to be dismissed when there is insufficient evidence to effectively prosecute the case at trial.30 In such a case, the notitia criminis is defined as ?groundless? (infondata). The standard could be construed quite broadly, allowing the prosecutor latitude to seek dismissals in a wide variety of cases. In practice, however, prosecutors often tend to prosecute the suspect even when the evidence of guilt seems fairly weak. This habit stems from code provisions adopted in 1930, which required charging decisions to be made at the beginning of the investigation rather than at its conclusion, pursuant to a more difficult dismissal standard (?clearly groundless?). The law governing this stage of the criminal proceeding was changed in 1989, both in respect to the criterion and timing of the decision. In practice, however, it seems that these reforms have not been fully implemented.
The prosecution has no choice other than prosecution or dismissal, at least in theory, and he lacks the power to settle criminal cases out of court since every proceeding must end in a judgment. When a prosecutor has collected enough evidence to sustain a presumption of guilt, he files a formal charge against the defendant (richiesta di rinvio a giudizio) at the end of the investigative stage, thereby opening the preliminary hearing phase. However, the prosecutor has several mechanisms by which to expedite a case resolution. If the prosecutor has strong evidence from the outset, for instance, he may opt for faster processing that skips the preliminary hearing and moves things directly onto trial. By choosing immediate proceedings (giudizio immediato), the prosecutor must bring formal charges within ninety days after the registration of the notice of the crime. A request for this special form of proceeding is directed to the judge of the preliminary hearing, who will screen the case to ensure that the evidence against the defendant is, in fact, strong. Likewise, if the accused is discovered during the commission of a crime and arrested on the spot, the prosecutor may proceed to speedy trial (giudizio direttissimo), where the defendant is brought to trial no later than thirty days from the date of arrest. The process may also apply if the suspect has confessed to the crime within fifteen days of the registration of the crime.
The prosecutor may also agree with the defense to a particular sentence after bargaining. This so-called applicazione della pena su richiesta (application of a penalty under request) is a form of special procedure inspired to the American plea bargain. The prosecution and the defense may reach an agreement during the investigative phase or in the later course of proceedings when formal charges have already been brought against the defendant. If the judge accepts the request, he is bound by the sentencing agreement reached by the parties. A different type of procedure, giudizio abbreviato (abbreviated trial), may not be initiated by the prosecutor. Instead, only the defendant can request an abbreviated trial, where the judgment is conducted on the investigative files alone. But by waiving his right to trial, the defendant can receive a reduction of penalty, with one-third of an ordinary sentence or the conversion of a life sentence to thirty years of imprisonment.
IV. The Role of the Prosecutor in Court
The prosecution?s charges against the accused are screened by a magistrate court at the preliminary hearing in order to determine if there is enough evidence to justify trial, with the magistrate either issuing a formal indictment or pronouncing an acquittal (sentenza di non luogo a procedere). A formal indictment opens up the trial stage, where the prosecution must prove the defendant?s guilt beyond a reasonable doubt to a trial court composed of professional judges or, as mentioned, a mixed panel in the corte d?assise.32 Although the indictment is issued by the magistrate, its content is defined by the prosecution and the court cannot modify the charges filed. As previously pointed out, the principle of mandatory prosecution does not negate the actual existence of some prosecutorial discretion, which necessary arises from myriad potential legal interpretations and applications to case facts. Generally, however, this discretion affects the preliminary stages when charges are filed and screened. Once the charges are brought to trial, the prosecutor has limited discretion to amend the indictment and has no power to dismiss any charges.
A. Trial Process
The trial starts with the opening argument of the prosecution, presenting the allegations and the evidence he will use in order to prove the defendant?s guilt. The defense will also make an opening statement offering its version of the allegations and the evidence it will use. These introductory arguments not only provide a first impression of the case, but also allow the court to admit or exclude evidence (rectius) that is irrelevant or in conflict with the law. Assuming the proposed evidence is deemed admissible, the prosecutor will present the evidence by calling and examining his witnesses, who are then subject to cross-examination by the defense, pursuant to evidentiary rules that roughly mirror those in the United States.33 Once the prosecution has produced all its evidence, the defense may then present evidence in a similar fashion and be subjected to cross-examination by the prosecution. The president of the court may pose questions to a witness only after parties? examinations are over, which then entitled the parties to further examination of that witness. And as noted earlier, the judge has the power to call new evidence proprio motu in cases of necessity.34
After the parties have closed their cases, the prosecution and defense make their closing arguments, with the prosecution going first, followed by the defense. In general, a prosecutor?s closing argument sums up all the evidence and how it supports his theory of the case. He also recommends the juridical qualification that best fits the offense and requests that a specific sentence be imposed. If the prosecutor believes that the evidence presented at trial was insufficient to prove the defendant?s guilt, he can ask the judge for an acquittal. Regardless, however, the court is not bound to honor any of the prosecutor?s requests.
As mentioned, the prosecution has only limited power to amend the indictment. Despite screening during the preliminary hearing, for instance, the charges filed by the prosecution might still vary during trial within certain limits. In fact, the trial hearings can highlight elements of criminal conduct that differ from their initial description in the indictment. In such cases, the prosecution may amend the facts alleged in the indictment, so long as it introduces only a slight difference from the original facts. Such an amendment triggers the right of the accused to ask for adjournment of the trial to arrange his strategy for the modified charge, and, of course, the defendant has the right to introduce new evidence relating to the amendment.
The prosecution can also seek to charge an additional offense if evidence of a new crime arises during the trial proceedings. The prosecution does not have the right to add charges to the original indictment that are not part of a common criminal plan,35 but instead he must ask and receive the defendant?s explicit consent to do so, as well as the authorization of the court. If the additional charge is allowed, the accused again may ask for an adjournment of the trial, and he is allowed to bring new evidence regarding the new charge. If the defendant does not consent, however, or if the president denies authorization, the prosecutor will have to proceed against the newly discovered illegal conduct by following the ordinary procedure, that is, by presenting the charge to a preliminary hearing magistrate and asking for an indictment for that crime. According to the iura novit curia principle, however, the court is absolutely free to determine the legal relevance of each fact alleged and is not bound by the indictment?s definition of law. For this reason, the prosecution is not required to modify the charge in order for the court to assess a different juridical qualification of the same alleged facts.36
B. Appeal and Execution of Sanctions
The Italian system provides two main means to attack a trial judgment, by appeal and by the ?recourse for cassation.? The latter is made before the Italian Court of Cassation, which constitutes the last avenue of review. At the appeal stage, the prosecution is given broad appellate powers exhibiting the system?s old inquisitorial roots. Here, the prosecution is a body concerned about the correct application of the law?working for justice, so to speak?and not merely a partisan seeking to win the case. The prosecution can appeal an accused?s acquittal and ask for a conviction, but it can also appeal to quash the accused?s conviction or to amend the sentence imposed on the accused at trial. After the judgment has become final, the prosecution can apply for review if he considers that there are grounds to believe, on the basis of new elements, that the accused is innocent and was erroneously convicted.37 A sentence can only be executed after the accused has exhausted his right to appeal, apart from collateral attacks. Even if the trial ends with a conviction, then, the sanctions imposed by the court cannot be enforced until the defendant has spent his appellate rights. Before the final appellate decision, however, the defendant can be held in custody when there are reasonable grounds to believe that he might escape or commit further crimes if released pending appeal.
The sanctions that can be imposed by the court are imprisonment and fines. The kind and measure of the sanction for each offense is fixed by law, on the basis of a range consisting of a maximum and a minimum. The prosecutorial role differs depending on whether the sanction is imprisonment or a fine, as well as whether the sentence has been or could be suspended. When the accused is sentenced to a fine, the office of the judge who imposed it must issue an order to fulfill the term. If the order is not fulfilled, the judge?s office must request that the prosecution initiate proceedings aiming to replace the fine with a custodial sanction. On request of the prosecutor, a judge can replace the fine with imprisonment if he has ascertained that the defendant cannot pay the fine, with one day of imprisonment equivalent to ?250.
In general, the prosecution is bound to the content of a custodial sentence and therefore has little discretionary powers. When the legal conditions to execute a custodial sentence are met, the prosecutor must issue an order that provides for the defendant?s imprisonment. If the custodial sanction is relatively short, however, and the defendant has not been convicted of a serious crime and is not currently being held in custody, the execution of sentence can be suspended by the prosecutor in order to allow the defendant to request that the custodial sanction be substituted with a non-custodial one.38 With the suspended sentence, a judge may impose conditions on the defendant such as ordering compensation for the victim or requiring him to fix the damages caused by his offense. The prosecution has the task of supervising compliance with the imposed conditions. If the conditions are not fulfilled, the prosecution can request a judge to revoke the suspended sentence. The judge has no discretionary powers and must revoke a suspended sentence when a violation has been proven.
The ambiguous, or merely uncertain, nature of the Italian Public Prosecution Service is the product of reforms that cast the prosecutor as ?counsel for the prosecution? at trial in line with the Anglo-American tradition, while at the same time maintaining key features of the civil law tradition. This is emblematic of a system attracted to adversarial adjudication and the protections it provides the accused, yet still reluctant to carry any reform to the extreme by abandoning core principles of continental criminal justice. The result is a prosecutor who is both an inquisitorial investigator and an adversarial trial litigator. What the future holds is hard to predict, but at present, the ultimate goal??to put the public prosecutor in its own proper place,? as one prominent Italian scholar defined it39?remains on the horizon.