Introduction to Italian Criminal Law - Procedure

Premise

The following study constitutes a summary of Italian criminal procedure, without any pretension to substitute a lawyer’s consultation.

Italian criminal law is divided into two parts: there are the rules describing the types of crimes codified both in the Criminal Code (Codice Penale) and in special legislation, and there are the other rules, contained in the Code of Criminal Procedure (Codice di Procedura Penale), governing the investigations of crimes, the arrest, charging, trial of accused etc., up to the final decision (acquittal or sentence). 

Among the many principles of law, two are particularly important in criminal procedure: the first is that no one can plead ignorance of the law as an excuse for not complying with the law; and the second is that the person accused can be convicted only if there is certainty, beyond any reasonable doubt, that he committed the crime.

 

   2. Italian criminal procedure: generalities

Criminal procedure begins when a crime (in Italian “notizia di reato” = police report ) is reported to the Public Prosecutor’s office by the Judicial Police (Polizia Giudiziaria) or by any other means (citizens, press). 
During the preliminaries investigations phase the Judicial Police and the Public Prosecutor carry out a detailed enquiry into the alleged crime. 
This phase ends with the request for filing in the archives or the initiation of penal action (art. 405 c.p.p.). 

In Italy, the length of criminal proceedings depends on many factors and cannot be exactly calculated. The average length of proceedings for the first degree is approximately between four/ five years. Sometimes the length of a proceeding for all the three degrees of judgment adds up to more than seven years ( four years for the first degree, two years for the second degree and one year at least for the Supreme Court), so that a lot of trials end up with a prescription extinctive.

   3. The preliminary investigations phase

Once the Public Prosecutor’s office has received a crime report, he is obliged to start the preliminary investigations and he has got a maximum of six months to a year (depending on the nature of the crime) to carry out a systematic examination of the person who may have committed the crime and the questioning of witnesses. 

The preliminary investigations may involve inspections, searches, seizures, monitoring of conversations or communications, securing sources of proofs, identifications of accused, summary report on person against whom investigation is conducted, other summary information from persons who can report circumstances useful for the purpose of the investigation and other similar procedures. 
The enquiry is private and cannot be disclosed. The duration of preliminary investigations is dependent upon their complexity, so that the term for completing the investigations may vary between six to eighteen months and, in very complex cases, 2 years.  Only the Judge can grant requests to extend the term. Postponements and delays are very frequent. During this time the suspect can be held in custody in prison, or partially lose his personal freedom, if there are serious indications against him (art 272 c.p.p.) and at least one of the three precautionary requirements provided in art 274 c.p.p.

These are the possible outcomes, after the investigation is completed:

a) the Public Prosecutor can determine that there is not enough evidence to support the charge and for this reason, ask the Judge in charge for this stage (in Italian: “Giudice per le Indagini Preliminari”) to dismiss the case by a request for filing in the archives. If the victim has asked to be informed of the dismissal, the Public Prosecutor must notify the victim of his intention. In this case, the victim, within ten days from receiving the notification, can object to the request for filing (for more details see art 410 c.p.p.);

b) on the contrary, if the Public Prosecutor determines that there is sufficient evidence, he must notify the suspect and the defense counsel that the investigation is closed. At this point, within twenty days, the suspect may ask either to be questioned and/or to give evidence in his own defence. If this term expires or if he doesn’t manage to demonstrate his innocence, the Public Prosecutor can ask the Judge to send the case to trial (proceeding with preliminary hearing) or he himself can send the case directly to trial (art. 33 e art. 550 c.p.p), that is without the necessity of a preliminary hearing, if the crime is considered by law less serious.

 

    4. Reporting Crimes: complaint and lawsuit

According to Italian law, both the victim and his attorney may file a police report, i.e. a complaint (in Italian: “denuncia”) or lawsuit (in Italian: “querela”), at any police station or at Public Prosecutor’s office. The difference is that:

-the “denuncia”(complaint) can be proposed also by a person not involved in the crime , it is reserved for the more serious crimes and cannot be withdrawn , whereas a lawsuit always comes from the victim of the crime, regards some offenses that can be prosecuted only if there is an express victim’ s request and can be withdrawn up to the definitive decision.

A lawsuit must be signed personally by the victim, even if he can charge the lawyer to file the report. However a police report can also be filed at the Italian Embassy and Consulates in the U.S. or U.K.

A lawsuit must be filed within three months of the date the victim became aware of the crime, whereas for a complaint there is no deadline. 

In sexual assault cases only, a police report may be filed within six months of the date that the crime occurred. 

A police report, proposed in writing or orally, must always contain the description of the fact, the indication of the author (if he is known) and any witnesses.

 

    5. Arrest and confinement as a provisional measure by the Police

Even if Italian Constitution declares the inviolability of the personal freedom, there are some cases characterized by the urgency in which a person can be deprived of his/her liberty by the Police without an order of the Judge. In this regard, we speak about some “provisional measures”, prior to the adoption of any “precautionary measures”, which may be actually applied by the Judge for preliminary investigations. The first of them is called in Italian “arresto in flagranza”, when one is caught in an intentional, consummated or attempted, offense. 

In turn, this type of arrest (in Latin “in flagrante delicto”) can be mandatory when a police officer witnesses the commission of a crime (arresto in flagranza), punished with a penalty of more than five years' imprisonment or another crime included in the list of art. 380 c.p.p.(offences against the State, devastation and looting, slavery, robbery, offenses relating to weapons , drugs, terrorism, mafia and other criminal associations to commit crimes covered by art 416 c.p.).

The “arresto in flagranza”, may be optional if someone is caught in the act of committing an intentional, consummated or attempted, offence for which the law calls for the penalty of imprisonment in excess of three years at most, or a culpable offence for which the law calls for the penalty of imprisonment of no less than five years or another offence described by art 381 c.p.p.(embezzlement, corruption…personal injury, theft, fraud, alteration of arms etc.).

Apart from the cases of “flagrante delicto”, while an investigation is pending, the Judicial Police can also order the confinement (in Italian: “fermo di indiziato di delitto”: art 384 c.p.p.) of a person, when there are sufficient reasons to believe that the perpetrator might flee. Nevertheless, it must be a more serious offense, for which the law calls for a penalty of life imprisonment or imprisonment of no less than two years, or more than six years, or an offence involving weapons of war and explosives. The fundamentals of confinement are because of urgency, it is not possible to wait for action from the Public Prosecutor.

If the person is not immediately released, the arrest or confinement must be validated, on Public Prosecutor’s request, within 48 hours and within the 48-hour period thereafter, the Judge must hold a hearing to discuss the arrest.

At the validation hearing, the Judge can either approve or disapprove the request for validation. Moreover, if there are the conditions, the Judge can order the implementation of one of the precautionary measures provided by law or, alternatively, direct the immediate release of the arrested or confined person.

    6. Precautionary measures ordered by the Judge

Precautionary measures are all those measures of privation or restriction of the rights of a person, adopted on the basis of a dual premise: the serious indications of guilt (article 272 c.p.p.) and the precautionary requirements (article 273c.p.p.). The latter can be of three types: a) preventing the pollution of the evidence; b) preventing the danger of flight; c) protecting the community.
Among the precautionary measures, the custodial measures are particularly important because they exclude or limit personal freedom. They range from pre-trial detention (art. 285 c.p.p) or house arrest (art.284 c.p.p.), until the prohibition of leaving the national territory (art. 281 c.p.p.). The pre-trial detention has a maximum duration of two, four or six years, depending on the amount of the penalty for the offense for which the proceeding is being carried out. In addition, there are also some established intermediate terms of duration, relating to each phase in which a procedure is divided. Even the intermediate terms are graded according to the severity of the offense for which the proceeding takes place.

 

    7.End of preliminary investigations and preliminary hearing

According to the art. 415 bis c.p.p., the Public Prosecutor, before concluding the preliminary investigations, must notify to the person alleged to have committed a crime and also his lawyer, a notice which contains a statement of the alleged criminal act, the information that the documents are filed in the Public Prosecutor’s secretary and an option to the same suspect to exercise, if he likes - within twenty days - some of his rights: asking to be interviewed, submitting statements and documents, asking the Public Prosecutor for further inquiries.

If there are not the conditions for dismissing the case by a request for filing in the archives and after the term of art. 415 bis c.p.p. has expired, the preliminary investigations come to an end when the Public Prosecutor exercises the penal action, drafting the charges (art. 405 c.p.p.), that is through:

a) decree of summons for trial (art. 33- 550 c.p.p.,) which introduces to a trial without a preliminary hearing;

b) activation of a special proceeding (art. 438 and following) as an alternative to a traditional trial ;

c) request for trial, followed - in a short time - by a preliminary hearing.

If the Public Prosecutor files his request for trial in the office of the clerk of the Court, along with the request he also transmits the record containing the notice of crime, the documentation pertaining to investigations that have been completed and the minutes of acts carried out before the Judge of preliminary investigations.

The request for a trial must contain some formal requirements and, among them, the most important is a statement of the alleged criminal act, the aggravating circumstances, together with an indication of sources of evidence acquired.

At the hearing, the Judge can either close the case without the necessity of a trial or order the case go to trial, by means of a “decree ordering a trial” (in Italian: “decreto che dispone il giudizio”).

     8. Trial

If the charges are not stopped at the preliminary hearing or if the process does not end with one of these two special proceedings, such as abbreviated trial or plea bargaining, the case proceeds to the trial phase (in Italian: “dibattimento”). In other words: the trial can be reached via an alternative proceeding, skipping the preliminary hearing, such as summary trial or immediate trial, or by means of a preliminary hearing followed by a “decree ordering a trial”. Trial hearings are normally public.

The trial is the heart of the process: first of all preliminary and introductory issues will be verified and discussed, then the witnesses and consultants will be heard both for the prosecution and/or the defence, according to the technique of “cross examination”: direct examination is addressed directly by the Public Prosecutor or by the attorney who asked for the examination of the witness. Subsequently, cross examination may be addressed by the parties who did not ask for examination, in the order indicated in article 496. The person who asked for examination of witness may conduct redirect examination.

The victim is ordered to appear at the first hearing and can ask for a compensation for damages, by a constitution of civil party (see below). Travel expenses may be refunded by order of the Judge.

After the acquisition of the necessary material for the decision, the discussion takes place, according to the order established by art. 523 c.p.p.. The defendant, at his request, has the right to have the last word. After all the evidence has been heard and once the Public Prosecutor and the defence lawyers have argued their cases, the Judge retires to make his decision.

   9. Decision

The defendant can be found guilty or not guilty of the charges.

A penal decision consists of two parts: the disposition, which is immediately read and the rationale (in Italian: “motivazione”), whose reading may be simultaneous or follow that of the disposition within 15 or at most 90 days.

A decision can be: a) a sentence of nolle prosse (if the penal action should not have been initiated or must not be continued); b) a sentence of acquittal if the defendant is found not guilty; c) declaration of extinction of crime (e.g. in the case of amnesty or prescription extinctive); d) a sentence of conviction if the defendant is determined to be guilty (beyond every reasonable doubt).

With the sentence the Judge also decides on the request for restitution and compensation for damages made ​​by the civil party against not only the defendant but also the civilly liable party, once their responsibility has been acknowledged; a provisional basis, may be granted if required (art. 538 c.p.p).

This decision can be appealed first before the Court of Appeal and then before the Supreme Court (but only for matters of law and in some cases established by art 606 c.p.p.).

10. Appeals

After being found guilty, the defendant- but also the Public Prosecutor if he is not satisfied with the decision- can bring an action: the former to clear his name or to reduce the previous sentence, the latter to get the conviction of the accused or an increase in the penalty.  The appeal is a remedy provided against decisions of first degree: the Court of appeal’s decision is a review of lower court’s decision as far as regards questions of both law and fact. Generally the judgment is based on the verbal evidence heard during the trial of first degree, so that, it is not necessary for the defendant and victim to appear again.

Appeal before the Supreme Court is provided only for some questions of law as the facts - already established in any previous degree - are no longer questionable. This kind of appeal is an unfailing remedy expressly provided by the Italian Constitution, against all judgments affected by violation of the law (art. 111 Cost.) and it is permitted only for five reasons provided by art. 606 Code of Criminal Procedure.

   11. Special Proceedings

Italian law provides several alternative procedures to an ordinary trial.

Three of them avoid the trial, so the Judge's decision is founded on evidence in the file of the Public Prosecutor (abbreviated trial, plea bargaining, proceeding by decree).

The other two come directly to trial, jumping the previous phases: the preliminary hearing (immediate trial) or the preliminary investigation and the preliminary hearing (summary trial).

Abbreviated trial: in the preliminary hearing or in the conversion of another special proceeding, the accused can always ask the Judge to be judged on the basis of the evidence gathered in the preliminary investigation stage, giving up the trial. If convicted, he receives a reduced sentence to the extent of one third. The court is bound to accept this request and the Prosecutor has to accept and respect this. The accused may also make the request for abbreviated trial, subordinating it to additional evidence. In this case, however, the Judge is not obliged to accept the request. The judgment of abbreviated trial can be appealed.

Plea bargaining: this is an agreement between the accused and the Prosecutor on the extent of the penalty to be applied and, implicitly, on the affirmation of guilt. It also may be requested either in the preliminary hearing or upon conversion of another special proceeding. This proceeding allows you to take advantage of a discount of up to one-third of the original penalty. In proceedings not preceded by preliminary hearing the plea agreement may be required prior to the opening statement of the trial. The agreement must be presented to the Judge who can accept or reject it. If the Judge accepts the agreement, the judgment becomes final rapidly. Otherwise the decision can only be challenged in the Supreme Court. 

Summary trial: as the immediate trial, it skips the preliminary hearing, but this depends entirely on the initiative of the Public Prosecutor in case of evidence of proof. This special procedure can be used when the accused was arrested in the act of committing an offence or made a confession and moreover, in other cases, specifically provided by law, including crimes relating to weapons or explosives and those related to the violence at sporting events. The defendant may request a time to defend not more than ten days in order to prepare his defence. He may also request, instead of this proceeding, to proceed with the forms of abbreviated trial or a plea bargaining.

Immediate judgment: it skips the preliminary hearing and the trial comes quickly, to the request of the Prosecutor or the accused. The accused may ask for it after the notification of preliminary hearing or after notification of the penalty notice (see below). The Public Prosecutor may ask for it when the evidence is clear and the suspect was heard or did not appear despite the summons to be interrogated, or he is in precautionary custody. Condition for the Prosecutor to formulate his request, is that the review procedure (see art. 309 c.p.p.) has been completed. If the Judge admits the immediate judgment on the request of the Prosecutor, the accused - within fifteen days - may ask for the abbreviated trial or plea bargaining.

Proceeding by decree: this is a simplified procedure which ends with a decision of conviction handed down without contradiction, the decree of condemnation, issued by the Judge for preliminary investigations at the request of the Public Prosecutor without the defendant’s intervention (who nevertheless can object after the decree). It must be proceedings involving crimes that can be prosecuted “ex officio” (Latin expression which means without a party’s request) and punishable by a fine. The defendant may object to the decree of condemnation within fifteen days of receipt and request to proceed with the ordinary trial or request the abbreviated trial or a plea bargaining or offering the payment of a sum to obtain the extinction of the crime. In this case, the Judge will withdraw the decree. The decree of condemnation includes a number of incentives: a reduction of the sentence, the absence of additional penalties and costs of procedure, the extinction of the crime after a certain time, the lack of efficacy in proceedings other than criminal.

    12. Penalties

There are two types of penalties: a fine, that is imposing payment of a substantial sum of money, or a sentence, that is the deprivation of liberty.

Crimes are distinguished according to their gravity: those considered more serious are named felonies (in Italian: “delitti”), whereas those less serious are named misdemeanors (in Italian: “contravvenzioni”).

The principal penalties set out in the Criminal Code for felonies are life imprisonment, imprisonment and a fine, while the main penalties for misdemeanors are arrest and a fine (see article 17 of the Criminal Code). More precisely:

A) penalties for felonies

• life imprisonment, in theory, is the deprivation of liberty for the entire life of the condemned and is a penalty that is applied only to those who commit crimes of extreme gravity;
• prison is the sentence of imprisonment established for lesser offenses, consisting of deprivation of liberty of the convicted person for a period ranging from a minimum of 15 days to a maximum of 24 years;
• the fine is the sum established for the offense and being the payment of money to the State, which ranges from a minimum of € 5 to a maximum of € 5,164

 

B) penalties for misdemeanors

• the arrest is the term of imprisonment established for misdemeanors, consisting of the deprivation of liberty of the convicted person for a period ranging from a minimum of 5 days to a maximum of 3 years;
• the fine provided for misdemeanors, consists in the payment of money to the State, not less than € 2 and not more than € 1,032.        

In addition to the main penalties, there are also so-called accessory penalties that are applied to the offender, with a special prevention function, restricting some liberties, normally guaranteed by the Constitution and ordered, automatically or at the Judge's discretion, once that the criminal liability of the accused  has been established. The most important of them is the legal interdiction, provided by art 32 c.p., which is applied to the convicted to life imprisonment.

Moreover Italian legislation offers a wide range of measures of punishment alternative to the traditional ones. They can be distinguished in:

A) penalties replacing short prison sentences, imposed by the trial Judge, such as semi-detention or supervised liberty  which replace, respectively, prison terms : semi-detention up to two years and supervised liberty up to one year. Prison terms up to six months can be replaced by a fine of a same type (250 € for every day of prison or arrest);

B) alternative measures to detention, usable by prisoners serving definitive sentences, including probation under the supervision of Social Services; house arrest; semi-liberty (e.g. work release);   early release (i.e. sentence reductions): conditional release (if the condemned to imprisonment has proved his repentance and he has served at least a portion of the sentence imposed- i.e. one-half of the sentence, or at least three-quarters in the event of recidivism, and at least 26 years in the case of a life sentence).

In cases of crimes prosecuted upon lawsuit, the Public Prosecutor may delegate to the Judicial Police reconciliation between the perpetrator and the victim. If the parties reach an agreement, the proceeding ends with a sentence of nolle prosse.

   13. Description of the Italian judicial system

In Italy we find in the first instance, the Judge of the Peace, the Court of Appeal and the Court of Assizes (depending on the severity of the offense). The parties who are not satisfied with these rulings have the possibility of recourse to the court of higher grade:

the Court against the decisions of the Judge of the Peace

the Court of Appeal against the judgments of the Court

the Court of Assizes of Appeal against the judgment of the Court of Assizes.

In second grade you can apply for a review of the whole question (both in the profiles of law and in matters of fact).

Against the judgment of second instance there is an additional action only for the aspects of law: one can refer the matter to the Supreme Court, alleging the incorrect application of the law.

The precedent is not binding because each Judge is subject only to the law and only the law and should not take into account any precedent set by a Superior Court, except in the special case of the Judge to whom the case was postponed after the Supreme Court quashed it: only in this case the Judge has to make the decision based on the interpretation given by the Supreme Court.

However, the precedent of the Supreme Court has a strong persuasive value, because the Judge of lower grade knows that if he decides in a manner contrary to the case law of the Supreme Court, when his judgment comes before this body, most likely it will be cancelled.

 

    14. Victim compensation in Italy

In Italy, only in cases of terrorism, organized crime, and hit and run accidents, is there a special program which provides financial compensation for victims of these crimes. For more detailed information see:

http://www.inps.it/portale/default.aspx?itemdir=6024&bVota=false; http://www.vittimestrada.org/articles.php?lng=it&pg=86 ;

Since there is not a program for compensating victims of other violent or personal crimes, the victim, during a criminal trial against an alleged offender, as we have said before, can ask for compensation for damages by a constitution of civil party. In order to get compensation for damage suffered as result of an offense, one can bring either civil action or bring the case before the Criminal Court. That means, according to the article 74 c.p.p. (“entitlement to civil action”): “civil action for restitution and compensation for damages mentioned in article 185 of the penal code can be carried out during the penal trial by the subject on whom the crime inflicted damage or by his heirs against the defendant and the person civilly responsible”. Moreover the article 76 c.p.p. (“constitution of civil party”) states that: “civil action in the criminal trial is carried out, also by means of the special prosecutor, through the establishment of the civil party. The constitution of the civil party has its own effects during every state and degree of the trial.” 

   15. The juvenile criminal procedure

The Juvenile Court has jurisdiction in the first instance for crimes committed by minors between 14 and 18 years of age. According to Italian law, children under 14 years of age are not eligible to be prosecuted. Even as the juvenile becomes older, he is still subject to the jurisdiction of the Juvenile Court, which is exclusive because it extends to all offenses committed by a minor which would otherwise be attributable to the ordinary Judge. The Juvenile Court judges in a panel (two professional judges and two experts, generally in psychology and pedagogy). The process is primarily aimed to the rehabilitation and protection of the personality of the minor. In this type of process the constitution of civil party is not allowed.

The juvenile criminal procedure follows the pattern of the ordinary proceeding: the preliminary investigations, preliminary hearing and trial. With the consent of the accused, the process may be defined during the preliminary hearing. Always with the consent of the accused, the process may be suspended during the preliminary hearing to allow the testing of the child (in Italian: “messa alla prova”). If this testing proves positive, it determines the extinction of the offense that is declared by the Judge in a further hearing.

In the juvenile criminal procedure, there are only three special proceedings allowed: abbreviated trial, immediate trial and summary trial, with the exclusion of the proceedings by decree and the plea bargaining.

In the event of a trial, it takes place in camera (behind closed doors). For the reason of respect for the minor, it is not expected to proceed with cross examination because the questions are posed not by the parties, but by the president of the College.