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Italy Legal and Court system.
Criminal procedure in Italy can be described as adversarial
in nature. No informal justice system exists. Although the
origins of Italian penal legislation can be traced back to Roman
and middle age canonic law, its general principles derive from
the French Enlightenment. These principles include clarity of
the law, no punishment without trial, proportionality between
crime and punishment, definitions of crime and punishment based
on a system of written laws and fixed penalties, and the
elimination of secret accusations. The dissemination of these
principles is commonly ascribed to the influence of Cesare
Beccaria's Treatise On Crimes and Punishments.The Italian legal
system is based on written laws. Penal Law defines what specific
behavior is criminal and what specific minimum and maximum
penalties are provided. The basic principles of no penalty
without a law (nulla poena sine lege) and no crime without a law
(nullum crimen sine lege) are stated in the Penal Code (Art.1)
and in the Constitution (Art.25). Other basic constitutional
principles follow as well: a) legal responsibility rests solely
on the acting individual; b) rules of penal law are not
retroactive; c) no one can be sentenced without a fair trial (nulla
poena sine judicio); d) no one can be considered guilty until a
final sentence has been pronounced; e) penalties cannot consist
in treatment contrary to the sense of humanity and must tend to
the rehabilitation of the offender; and f) personal freedom is
inviolable and no one shall be deprived of it except under
specific provisions of the law. (Constitution, Art.27). The
Bench (judiciary and prosecutors) is autonomous and independent
from the political Legislative and Executive powers. A
self-governed elective Board (Consiglio Superiore della
Magistratura) of which two-thirds are a large majority of judges
and prosecutors, is permanently in charge of all decisions
concerning the Bench, such as recruitment, assignments,
transfers, promotions, and disciplinary actions (judges and
prosecutors cannot be removed). (Constitution, Art.104,107). The
Constitution also states that judges are subjected only to the
authority of the law (Art.101). The Legislative Power has the
monopoly on the production of the Penal Law (directly or through
laws enacted under delegate power). The Constitution prescribes
the general norms of the penal system. No law can conflict with
the Constitution. The Constitutional Court (Corte Costitutionale)
is in charge of evaluating the conformity of specific rules of
the Penal Law to the Constitution.
Italy Prosecutorial and Judicial Process
Bail procedure. Bail is not allowed in the Italy penal
system.
Rights of the accused at trial. The Convention for the
Safeguard of Human Rights and the annexed Protocol is, for all
purposes, part of the Italian Legal System in that no national
law can conflict with its provisions. (The Convention and
Protocol have been signed by all government members of the
Council of Europe and are in force in Italy as a State law.) It
states that persons have the right to an independent and
impartial trial in an impartial tribunal and the right to life,
liberty, safety and property. (Convention for the Safeguard of
Human Rights and of Fundamental Liberties, November 4, 1950;
Protocollo, Art.1,2,5,6). The Convention also states that the
accused has the right to a public trial, with some exceptions,
within an adequate period of time, to be informed of the nature
and content of the accusation, to cross examine witnesses for
the prosecution, to subpoena witnesses for the defense, the
right to counsel, and the right to be presumed innocent. The
Italian Constitution also provides for general principles such
as the inviolable rights to liberty and counsel and the equality
of all citizens before the law. (Constitution, Art.3,13,24;
Protocollo, Art.5,6). Principles similar to those found in the
Italian Constitution and the Convention for the Safeguard of
Human Rights can also be found in many sections of the Penal
Code and Code of Penal Procedure. For instance, the accused has
the right to be fully informed of the charge and of the existing
evidence against him or her, and to be informed of the source of
the evidence, such as the identity of the claimant(s), unless
this would be detrimental to the investigation. The accused also
has the right to remain silent and is considered not guilty
until a final sentence has been pronounced. Uncertainty about
the guilt of the accused due to insufficient or contradictory
evidence can result in a judgement of full acquittal. The
accused also has the right to be present at trial, to confront
opposing witnesses, and to have all witnesses cross-examined by
the defense attorney. (Code of Penal Procedure, Art.
65,474,486,498,499,530; Constitution, Art.27). In addition, the
accused has the right to be tried by a judicial panel or by a
single judge, depending on the type of court, according to
territorial jurisdiction where the crime has been committed. The
accused cannot be removed from the "natural judge", meaning,
from the judge who is competent to try the case, under law. The
accused may not be tried twice for the same crime and has the
right to be tried in a fair trial, that is, by an independent
and impartial tribunal. (Code of Penal Procedure, Art. 65,649;
Constitution, Art. 25,27).
Assistance to the accused. The accused has the right to
select and employ a defense attorney in order to get legal
assistance and to produce evidence in his/her defense at any
stage of judicial proceedings, including the arrest and
investigation stage. If the accused does not designate a defense
attorney, a counsel is appointed by the Court. This applies to
all crimes of all types of severity. The law states that
indigents must be provided with counsel. The Bar Association
Nation provides a roster of available attorneys who are legally
bound to provide defense counseling. A Bar Association Nation
exists in each district; therefore, many rosters of attorneys
are available. If eligible, the accused can select and employ a
defense attorney at state expense, under law. Eligibility is
determined on the basis of personal or family income. (Code of
Penal Procedure, Art.97,190; Constitution, Art.24; Official
Gazette, July 30, 1990).
Preparatory procedures for bringing a suspect to trial. The
Public Prosecutor conducts the pre-trial investigation either
directly or indirectly by employing the investigating police. An
investigation takes place to establish whether there is enough
circumstantial criminal evidence to prompt penal action.
Depending on the type of crime, the investigation must be
completed within a legally fixed period of time. (Code of Penal
Procedure, Art.326,358) If the prosecutor does not find probable
cause after the investigation, he or she requests the Judge for
the Preliminary Investigation (G.I.P) to dismiss the case. If
cause is found, the prosecutor formally charges the defendant
with the commission of the crime and requests the G.I.P to
commit the defendant for trial. (Code of Penal Procedure,
Art.405,408,416). After the G.I.P. holds a hearing, he or she
issues an order for trial or, in case of unsupported charges,
pronounces a no case judgement (nolle prosequi). In the lowest
court level, the Public Prosecutor is in charge of signing or
not signing the indictment. (Code of Penal Procedure,
Art.424,554). Two other forms of trial are the direct trial (guidizio
direttissimo) and the immediate trial (giudizio immediato). In
direct trials, the Public Prosecutor can order the accused to be
brought up to trial within 48 hours, if he or she was caught in
the midst of committing a crime. In immediate trials, the
accused may be brought directly to trial without the preliminary
hearing, if during the preliminary investigation there is clear
evidence of guilt.
Official who conducts prosecution. The prosecution of the
accused is conducted by the Public Prosecutor. In the trial
stage, prosecution and defense are in a position of parity.
Similar to a judge, the Public Prosecutor is a career official
(public servant) considered to be a part of the Bench although
the prosecutor is not a judge. The distinction between
prosecutors and judges is based on the different functions of
the prosecutor and the judge, who are both considered
magistrates. The Italian magistry is divided into the inquiring
magistry (magistratura requirente o magistracy), who are the
public prosecutors, and the judging magistry (magistratura
giudicante), who are the judges. The prosecutor is in charge of
conducting the investigation and prosecution while the judge
passes judgement on the case and imposes a sentence. (The terms
magistrate and magistracy refer to all judges and prosecutors,
independent of their level, competency and jurisdiction.)
Alternatives to trial. The accused does not have the right to
plead guilty to a lesser offense (plea bargain). (The
inadmissibility of a plea bargain in the system is based on the
principle of the obbligatorieta dell'azione penale, which allows
no discretion in prosecution. Once acquainted with the
commission of a crime, the judicial authority is legally bound
to take action against that particular crime and cannot choose
to seek prosecution to a lesser charge in exchange for a plea of
guilt. In other words, discretionary or selective enforcement
does not exist in the system. The prosecutor has no
discretionary power to engage in plea bargaining. The crimes
prosecutable by the initiative of the offended person (reati
perseguibili a querela) also adheres to this rule.) In the case
of a miscarriage of justice, compensation for damages is
provided. In addition, there are 3 pre-trial alternatives: 1)
Short trial (guidizio abbreviato). Upon a defendant's formal
request, the case is decided in the course of the preliminary
hearing on the basis of findings of the preliminary
investigation, providing that the Public Prosecutor agrees with
it. If found guilty, the defendant is entitled to a reduction of
one-third of the penalty provided for the crime (for instance, 6
years in prison instead of 9). The reduction applies to all
crimes except those incurring a life sentence. This alternative
addresses the problem of lengthy trials. It was originally
introduced to save both money and time.
Imposition of specific penalty. (applicazione della pena su
richiesta delle parti). The prosecution and defense can jointly
ask the judge for the imposition of a specific penalty on which
they both agree, as long as the suggested penalty does not
exceed 2 years in prison, even when reduced to one-third of the
time. If the defendant does not commit the same kind of delitto
for 5 years after the sentence or contravvenzione crime for 2
Years, the offense is legally extinguished. (Although this is
informally called bargain (patteggiamento), it is entirely
different from the plea bargain known in the United States court
system.)
Penal decree of condemnation (decreto penale di condanna).
For minor crimes punishable with fines and/or prison up to 3
months, the Public Prosecutor, by decree, can request the G.I.P
to condemn the defendant to pay a fine, the amount of which is
reduced up to 50% of the minimum amount provided by law. The
decree is issued without hearing the defendant (inaudita altera
parte), who can always oppose the G.I.P decision, in which case
the decree loses its validity and the defendant goes to trial. A
cash settlement for contravvenzioni crimes can also be reached (Oblazione
nelle contravvenzioni punite con pene alternative). In these
cases the defendant may be permitted to pay 50% of the maximum
amount of the fine provided by law for that particular
contravvenzione, plus legal expenses. (Code of Penal Procedure,
Art.314,444-448,459; Penal Code, Art.162).
Proportion of prosecuted cases going to trial. The majority
of prosecuted cases for serious crimes go to trial,
notwithstanding the use of pre-trial alternatives in the new
Code of Penal Procedure. Approximately 20% of all cases are
resolved by pre- trial alternatives, while 80% go to trial. It
had been expected that the use of new non-trial alternatives
would result in 80% of all cases being resolved without a trial.
Pre-trial incarceration conditions. The Judge for the
Preliminary Investigation (G.I.P.) can opt for pre-trial
incarceration, or precautionary custody (custodia cautelare), at
the request of the Public Prosecutor. Except in cases of
mandatory or facultative arrest, pre-trial incarceration is
permitted only when a person is accused of a crime carrying a
maximum penalty exceeding 3 years in prison and when at least
one of the following conditions is present: 1) Danger of
counterfeiting, destruction of evidence; 2) Danger of escape;
and 3) Danger of committing more crimes of the same kind. (Code
of Penal Procedure, Art.274). Precautionary custody is permitted
when other sanctions such as a prohibition against leaving the
country or town, daily check-ins at the police station, and
house arrest are deemed insufficient.
Italy Classification of CrimesLegal classification. All criminal offenses (reati) are
divided by the Penal Code (Codice Penale) into two broad
categories: delitti, which are serious offenses and
contravvenzioni, which are less serious offenses. The two
categories (The crime categories are described in the second and
third books of the Italian Penal Code entitled, Libro Secondo:
Dei Delitti in Particolare and Libro Terzo: Delle
Contravvenzioni in Particolare, respectively) are also used to
help to classify special law statutes (drugs, prostitution,
weapons, bankruptcy, pollution, hunting, traffic, customs, tax
evasion, Military Code in wartime and in peacetime). The
distinction between delitti and contravvenzioni crimes is based
on the seriousness of the crime and on the severity of
punishment. Although they are both punishable by imprisonment
and/or fine, the sentences for delitti are more severe than
those for the contravvenzioni. (For delitti crimes, the penalty
is 15 days to 24 years imprisonment, and as much as 30 years or
life imprisonment in special cases. For contravvenzioni crimes,
the penalty is 5 days to 3 years imprisonment. As a rule,
sentences for contravvenzioni are served in different types of
prison facilities than those used for delitti. Fines vary
considerably and can amount to 500,000 U. S. Dollars for serious
drug offenses. (Penal Code, Art.22,23.25).) The Penal Code
generally classifies each crime under a specific heading: a)
Crimes against the Nation (delitti contro la personalita` dello
Stato), (for example, espionage, assassination of the President,
armed bands, terrorism). b) Crimes against public authority (delitti
contro la pubblica amministrazione), (for instance, corruption,
bribery, embezzlement of public property by an officer). c)
Crimes against judicial authority (delitti contro
l'amministrazione della giustizia), (for example, Perjury, to
suborn a witness). d) Crimes against religious feelings and
against the feelings of pity towards the dead (delitti contro il
sentimento religioso e contro la pieta` dei defunti),
(profanation of a tomb, offenses against religion). e) Crimes
against the public order/breach of the peace (delitti contro
l'ordine pubblico), (for instance, criminal association,
particularly of the mafioso type). f) Crimes against public
safety (delitti contro l'incolumita` pubblica), (poisoning food,
water and drugs, arson, provoking a railway or air disaster). g)
Crimes against public faithfulness (delitti contro la fede
pubblica), (forgery and counterfeiting). h) Crimes against
public economy, industry and commerce (delitti contro l'economia
pubblica, l'industria e il commercio), (commercial fraud). i)
Crimes against public morality (delitti contro la moralita`
pubblica e il buon costume), (rape, indecent exposure). j)
Crimes against the family (delitti contro la famiglia), (bigamy,
incest). k) Crimes against the person/violent crimes(delitti
contro la persona), (murder, assault, non-ransom kidnapping,
defamation). l) Crimes against property (Delitti contro il
patrimonio), (theft, money laundering, robbery, extortion,
ransom kidnapping). (The Penal Code considers the violent crimes
of robbery, extortion, and ransom kidnapping as property crimes
because their main intent is to gain property.)
Age of criminal responsibility. The age of criminal
responsibility is 18 under the Penal Code (Art.85), which also
states that a person is chargeable with a crime only if mentally
competent at the time of its commission. Over the age of 18, a
person is considered fully chargeable with a crime unless a
mental evaluation ordered by the judge finds the person mentally
incompetent due to a mental disease, deaf-mutism, or chronic
intoxication from alcohol or drug abuse. (Mentally incompetent
individuals who commit serious crimes are considered socially
dangerous and must undergo compulsory hospitalization in a
special mental institution for offenders (ospedale psichiatrico
giudiziario). (Penal Code, Art. 222).) In these cases, usually
no criminal sanction is imposed. Instead, compulsory
hospitalization in a special mental institution for insane
offenders is provided as a safety measure, except in minor
offense cases. (Penal Code, Art.88,95,96,222; Code of Penal
Procedure, Art.220). A person can also be considered criminally
liable, if as the result of a psychiatric examination, he or she
is found partly mentally incompetent because of mental disease,
chronic intoxication deriving from alcohol, drug abuse, or deaf-mutism.
(Penal Code, Art.88,89,95,96). In that case, in addition to the
penal sanction, compulsory hospitalization is provided as a
safety measure. For minor offenses, release under surveillance
may be imposed as an alternative measure. (Penal Code, Art.219).
A person under 14 years old is not considered mentally competent
and therefore cannot be charged with any crime. If mentally
competent, a person between 14 and 18 years old is considered
legally responsible, although a more lenient criminal sanction
is imposed. (Penal Code, Art.97,98).
Drug offenses. The personal use of drugs has recently been
decriminalized. Following a national referendum, a new law does
not permit imprisonment for drug-related activities involving
personal use only. In these cases, only administrative
sanctions, such as revoking a driving license or passport, can
be imposed. However, producing, selling or trafficking drugs are
considered very serious crimes. Criminal association with drug
offenses is alone punishable by a maximum prison sentence of 30
years. Illegal drugs include opium and its derivatives
(morphine, heroin), cocaine and its derivatives, amphetamine,
synthetic drugs, cannabis, and hashish. (According to
international agreements, all narcotics (and nonnarcotic
dangerous drugs) whose manufacturing and distribution is
prohibited or restricted, are listed in the Official Gazette
Italy Police
Use of force. Police may use force and/or deadly force in
self defense to drive back acts of violence, to overcome
resistance to authority, or to prevent the occurrence of very
serious crimes (slaughter, homicide, kidnapping, robbery),
providing that there is an immediate danger of the occurrence of
these crimes and that the police reaction is proportionate to
such danger. (Penal Code, Art.52,53).
Stop/apprehend a suspect. The law requires police to arrest
and incarcerate a person if caught in flagrancy (arresto
obbligatorio in flagranza) (in the act of committing a crime) or
immediately after the crime's commission, if the crime is
punishable by a 5 to 20 year prison sentence or life
imprisonment. An arrest is also required for other serious
crimes including: 1) crimes against the state; 2) devastation
and ransacking; 3) crimes agaist public safety; 4) reduction to
slavery; 5) serious forms of aggravated theft; 6) robbery,
extortion; 7) illegal manufacturing, smuggling, selling, letting
have, possessing, or carrying in a public place of illegal
weapons, especially military weapons; 8) serious drug crimes; 9)
crimes of terrorism and subversion, secrecy, mafioso, military
and political illegal associations; and 10) criminal association
with the intent to commit some of the aforementioned crimes (for
example, number 1,2,3,4,6,7 and 9). These crimes are are listed
in the Code of Penal Procedure and have attached penalties such
as 3 to 10 years of imprisonment. (Code of Penal Procedure,
Art.380). The police have facultative power to arrest and
incarcerate a suspect, if caught "in flagrancy" (arresto
facoltativo in flagranza), for crimes punishable by more than 3
years in prison, with a 5 year maximum if the crime is
unintentional. Facultative arrest powers are also in force for
other crimes such as: 1) embezzlement of public property by an
officer; 2) corruption of a public officer; 3) threat or
violence to a public officer; 4) commerce and supply of bad food
or drugs; 5) corruption of a minor; 6) assault provoking a
personal injury; 7) theft; 8) aggravated damaging; 9) fraud; and
10) misappropriation of private funds or property. Generally
these crimes are punishable by more than 6 months to 5 years in
prison and are listed in the Code of Penal Procedure (Art.381).
Police may also arrest and incarcerate a person suspected of
having committed a crime for which the law provides a minimum
penalty of no less than 2 years in prison and a maximum of more
than 6 years in prison, even if the suspect is not caught in
flagrancy such as crimes involving weapons or explosives. Arrest
and incarceration may be imposed if there is relevant
circumstantial evidence of guilt before the Public Prosecutor
starts the investigation, or if there is danger that the suspect
will escape and there is no time to get a warrant signed by the
Public Prosecutor. (Code of Penal Procedure, Art.384). In all
cases (mandatory and facultative "arresto" or "fermo"), the
police must immediately notify the Public Prosecutor, the
defense attorney and the suspect's family of the arrest (Code of
Penal Procedure, Art.386,387). Within 48 hours, the Public
Prosecutor must request the Judge for the Preliminary
Investigation (G.I.P.) to fix a hearing in order to confirm the
arrest within the next 48 hours. If the 48 hour terms are not
met, the arrest loses its validity and the arrested person is
set free (Code of Penal Procedure, Art.391). The G.I.P summons
the defendant, the defense attorney and the prosecutor for the
special validation hearing. At this hearing, the G.I.P. examines
the prosecutor's conclusions concerning the motives of the
arrest and the defendant is questioned in the presence of his
attorney. The G.I.P. then decides on the legitimacy of the
arrest and issues an order of release. (Code of Penal Procedure,
Art. 274). After arrest, procedures to process the suspect
further in the criminal justice system are specifically and
formally provided by the Code of Penal Procedure. After the
arrest has been made and reported to the judge, all subsequent
procedural decisions are made by the judge or prosecutor.
Decision to arrest. The majority of arrests are made while
the suspect is committing a crime in "flagrancy" in which a
warrant is obtained.
Search and seizure. For the purpose of collecting criminal
evidence, as a rule, a search requires a warrant signed by the
judge. In particular cases of emergency connected with serious
crimes (for example, kidnapping, drug offenses) the police may
search or seize property without a warrant (motu proprio). In
this case, police must give notice of the searching/seizing
within 48 hours to the prosecutor who is bound to verify its
legitimacy. Illegal searching and seizing of property by police
officers is punished by law as an abuse of power. (For example,
an illegal body search (peruisizione e ispezione personali
arbitrarie) can result in sanctions taken against the police
officer. (Penal Code Art.609).) Illegally obtained evidence is
not admissible in a case. (Code of Penal Procedure,
Art.191,244-265).
Confessions. The law provides that all statements, including
confessions, made in the presence of police officers or at any
stage of judicial proceedings are invalid, when obtained by
coercion. Also, the mere confession of a crime does not amount
to full evidence of guilt
There are three main state police corps in Italy: the State
Police (Polizia di Stato), the Carabinieri, and the Finance
Guard (Guardia di Finanza). The Carabinieri and Finance Guard
(employed mainly in the investigation of financial crimes) is a
military corps, under authority of the Ministry of Defence and
of the Ministry of Finance, respectively. The State Police is a
civil corps under authority of the Ministry of the Interior and
is responsible for all functions listed in the United Nation's
definition of police (prevention, detection, investigation, and
apprehension of alleged offenders). There also exist local
police corps with limited jurisdiction (rangers, city police,
traffic police, railway police, coast guard). The Code of Penal
Procedure state the functions of the investigating police.
(Articles 55-59). Appointed police officers (ufficiali di
polizia giudiziaria) from all police corps carry out criminal
investigation functions (funzioni di polizia giudiziaria). under
direction of the judicial authority in the criminal
investigation departments(sezioni di polizia giudiziaria). In
addition to the criminal investigation departments located at
the Public Prosecutor's offices, there are also criminal
investigation services (servizi di polizia giudiziaria) which
are established all over the country at the local Carabinieri,
State Police and Finance Guard stations. Criminal investigative
services are directly and exclusively used for the Public
Prosecutor for particular criminal investigations. The Central
Operating Service (Servizio Centrale Operativo) coordinates all
police criminal investigation activities under the authority of
the Chief of Police and the Ministry of the Interior. The
Ministry of the Interior has recently established a special
agency of criminal investigation, called the DIA (Direzione
Investigativa Antimafia) to be in charge of organized crime
investigations. The DIA is directed by a high ranking
Carabinieri, State Police or Chief Finance Guard Officer. This
interforce structure is used by the National Antimafia
Prosecuting Attorney (Procuratore Nazionale Antimafia), who is
also the head of the National Antimafia Prosecutor Office (Direzione
Nazionale Antimafia).
Italy extradition and Treaties
Extradition. The law permits extradition of both suspected
and convicted criminals to and from other countries. Extradition
treaties exist between Italy and the following countries:
Argentina, Australia, Austria, Bahamas, Belgium, Bolivia, Brazil
(imminent), Canada, Czechoslovakia, Cipro, Costa Rica, Cuba,
Denmark, Finland, France, Germany, Greece, Hungary, India,
Ireland, Israel, Kenya, Lebanon, Lesotho, Liechtenstein,
Luxembourg, Malta, Mexico, Monaco, Morocco, Netherlands, New
Zealand, Norway, Paraguay, Poland, Portugal, Romania, San
Marino, San Salvador, Singapore, Spain, Sri Lanka, South Africa,
Sweden, Switzerland, Tunisia, Turkey, Uruguay, United Kingdom,
United States, the Vatican City, Venezuela, and Yugoslavia
(Croatia and Slovenia). (Pisani and Mosconi, 1993). In 1991,
there were 172 extraditions made to Italy from other countries
and 89 extraditions made from Italy to other countries.
Exchange and transfer of prisoners. Prisoners cannot be
exchanged but they can be transferred in order to serve their
sentence in other countries or transferred from other countries
to serve their sentence in Italy. Transfer of prisoners is
permitted according to the provision stated in the treaties. The
transfer of prisoners is permitted among the following
countries: Austria, Bahamas, Belgium, Bulgaria, Canada, Cipro,
Czech Republic, Denmark, Finland, France, Germany, Greece,
Hungary, Ireland, Liechtenstein, Luxembourg, Malta, Netherlands,
Norway, Poland, Portugal, San Marino, Slovakia Republic, Spain,
Sweden, Switzerland, Thailand, Turkey, United Kingdom, and the
United States. (Pisani and Mosconi, 1993).
Specified conditions. There are some legal limitations to
extradition. For example, extradition can be permitted only if
expressly provided by international conventions. It is not
permitted for political crimes or if there is reason to believe
that the suspect or convict will be sujected to persecution or
discrimination because of his or her race, religion, sex,
nationality, language, political opinions, personal or social
conditions, or that he or she will be subject to cruel, inhuman
or degrading penalties (including death penalty), and/or
treatment, or that his or her basic human rights will be
violated unless otherwise arranged in the international
conventions. Extradition procedures are provided by the Code of
Penal Procedure. |
