The Italian Code of Criminal Procedure contains the rules governing criminal procedure in every court in Italy. The Italian legal order adopted four codes since the Italian Unification. After the first two codes, in 1865 and 1913, the Fascist Government established in 1930 a new code adopting an inquisitorial system. In 1988 the Italian Republic adopted a new code, that could be considered to be somewhere in between the inquisitorial system and the adversarial system.
Parties The main parties to a criminal trial are the judge,Articles 1-49 of the Criminal Procedure Code the defendant,Articles 60-73 of the Criminal Procedure Code and the prosecutor (the Pubblico Ministero).Articles 50-54-quater of the Criminal Procedure Code There are other parties that are optional, and they are: the Polizia Giudiziaria (Judiciary Police, a branch of the police whose duty is to help a prosecutor during his investigations),Articles 55-59 of the Code of Criminal Procedure the parte lesa (the injured party),Articles 90-95 of the Code of Criminal Procedure the responsabile civile (civilly liable, who can be compelled to pay damages, if the defendant is not solvent) and the civilmente obbligato per la pena pecuniaria (civilly liable, who can be compelled to pay the fines, if the defendant is not solvent).Articles 74-89 of the Code of Criminal Procedure
Pubblico Ministero
The Pubblico Ministero (the public prosecutor) is the one who, during the preliminary investigations, must look for evidence. Since he is a member of the Judiciary (technically, a Magistrato - Magistrate, though not a Giudice - Judge), he must try to find out the truth; that's why he must not only look for evidence that can lead to a conviction, but also that which may lead to an acquittal.Article 358 states: il pubblico ministero [omissis] svolge altresì accertamenti su fatti e circostanze a favore della persona sottoposta alle indagini
Preliminary investigations
When a Pubblico Ministero or a member of Polizia Giudiziaria becomes aware of the fact that a crime was committed, he must begin his investigation: in Italy, the public prosecutor has the duty to initiate criminal proceedings.As per article 112 of the Italian Constitution The indagato (the person who is suspected to have committed the crime)So far, there is, technically speaking, no defendant yet, because an indagato (suspect) becomes imputato (defendant) only when summoned to appear before the Judge of the Preliminary Hearing. can charge a lawyer to investigate on that person's behalf, in order to prove innocence.Articles 391-bis-391-nonies of the Code of Criminal Procedure. The Pubblico Ministero can appoint experts to carry out examinations; and, when the examination cannot be repeated (for instance, an autopsy), he must inform the indagato, so that he can appoint another expert, to ensure his right of defense. In the case of interrogations, of searches and of seizures, the indagato can ask that his lawyer be present.
Judge for the preliminary investigations
During the preliminary investigations, a Judge only seldom intervenes. The Giudice per le Indagini Preliminari (Judge for the Preliminary Investigations) controls the actions of the Pubblico Ministero, when the personal rights of the indagato are at stake. No indagato can be wiretapped, unless the Judge for the Preliminary Investigations has authorised it. All measures must be adopted by the Judge with an order, and he must also publish written explanations of his decisions.
Precautionary measures
The precautionary measures, adopted during the preliminary investigations or afterwards, aim at preventing the defendant from fleeing, from committing another crime or from destroying true evidence or creating false evidence. They cannot be adopted unless there is proof that the defendant has committed a crime (fumus commissi delicti). The Judge competent to adopt these measures is either the Judge for the Preliminary Investigations, the Judge of the Preliminary Hearing or the Judge of the Trial, according to the phase of the proceeding they are in, when the Pubblico Ministero asks that the defendant's rights of movement be limited.
There are many kinds of precautionary measures:Articles 272-315 of the Code of Criminal Procedure Kind Specification Coercive measures Prohibition to leave the country Duty to present oneself to the nearest police station on given days Expulsion from one's family house Restraining orders Prohibition or duty to dwell in a given place House arrest Provisional arrest Interdictive measures Suspension of parental authority Suspension from a public office or service Temporary interdiction from practising given professional or entrepreneurial activities Real measures Precautionary sequestrations
The defendant or the prosecutor can appeal against the order of the Judge before the Tribunale della Libertà (Court of Liberty). This court can uphold, modify or quash the Judge's order. Its decision can be appealed before the Corte di Cassazione (Court of Cassation).
The CL (Court of Liberty) actually reviews all the evidence and must render its decision within ten days from the appeal.
The Corte di Cassazione, on the contrary, cannot rule on merits, but only on correct procedure and correct interpretation of the law.
Interrogations and self-incriminating statements
When a person who is neither an indagato (suspect) nor an imputato (defendant), interrogated by the police or the prosecutor, reveals pieces of information that might lead to his incrimination, the interrogation must be immediately stopped, the person must be invited to nominate a lawyer and be warned that the information disclosed may render necessary an investigation. These self-incriminating statements are inadmissible in court.Article 63 of the Code of Criminal Procedure
The police or the prosecutor summon the indagato, during the preliminary investigations, and inform him precisely of the actions he is alleged to have committed (not yet technically a charge); they also inform him of the evidence so far gathered against him, if this is not detrimental to the investigations; the indagato is also invited to defend himself, if he so wishes; the police or the prosecutor can also ask him questions, that he may refuse to answer.Article 65 of the Code of Criminal Procedure
The indagato, when interrogated, must be free of all undue influence, both psychological and physical. He must be willing to provide information (animus confitendi). The police or the prosecutor cannot use on the indagato any methods or techniques that may influence his right to self-determination or alter his memory or his capability to evaluate facts. This prohibition applies even if it was the indagato who asked that these methods or techniques be used. Before the interrogation begins, the indagato must be informed that his statements can be used against him in court; that he can choose not to answer the question, but that the investigations will proceed nonetheless; that, if he provides information concerning someone else's criminal responsibility, he will assume, as far as this responsibility is concerned, the office of witness.Article 64 of the Code of Criminal Procedure
If evidence should be gathered in violation of these principles, it would be inadmissible in court.
Notice of closure
When the Prosecutor deems to have gathered enough information to make his case and before summoning the suspect ^ So far, there is, technically speaking, no defendant yet, because an indagato (suspect) becomes imputato (defendant) only when summoned to appear before the Judge of the Preliminary Hearing. before the Judge of the Preliminary Hearing, he must serve a notice to the suspect, in which the latter is informed of the crime he is alleged to have committed and that all the evidence gathered up to that moment can be examined by the suspect and by his attorney.
By this notice, the suspect is also informed that he can, within twenty days, file a defensive brief, present the results of the defensive inquiry, appear before the Prosecutor to make spontaneous statements or to ask the Prosecutor to question him; the suspect can also ask the Prosecutor to carry out specific acts of inquiry.
The Prosecutor may comply within thirty days; he must, however, question the suspect, if he so asks.
If the Prosecutor does not serve this notice, the decreto di rinvio al giudizio (indictment) is null and void.Article 415-bis of the Code of Criminal Procedure
Preliminary hearing
When the preliminary investigations are over, if the Pubblico Ministero thinks that the evidence he gathered could not justify a conviction, he must archiviare the notitia criminis (he must drop the charges). If, on the contrary, he deems he can make his case, he summons the individual, whose status, because of this summons, now changes from that of "suspect" ("indagato") to that of "defendant" ("imputato"),According to Note 9, "... an indagato (suspect) becomes imputato (defendant) only when summoned to appear before the Judge of the Preliminary Hearing." to appear before the Judge of the Preliminary Hearing (JPH).Article 34, paragraph 2-bis, of the Code states that the person who served as a Judge for the Preliminary Investigations cannot serve as Judge of the Preliminary Hearing.
Before the JPH, the Pubblico Ministero presents all the evidence he has gathered so far; the defendant can make his case and try to prove his innocence. The JPH, if convinced of the defendant's innocence or that the evidence gathered would not be enough to justify a guilty verdict, passes a sentence of non luogo a procedere (no grounds to proceed).
Should new evidence be found, the Prosecutor may ask the Judge for the Preliminary Investigations (JPI) that this judgement be revoked. During the hearing, before the JPI, the defendant can be assisted by his lawyer. If the sentence is revoked, the Prosecutor must, once again, summon the defendant before the JPH.
If, on the contrary, the JPH thinks that the evidence gathered so far is enough to justify a guilty verdict, he issues a decreto (order or decree The difference between a decreto and an ordinanza, although both are forms of orders, is that, when issuing a decreto, the Judge does not have to publish written explanations of his decisions.) of rinvio al giudizio (indictment).
All the evidence gathered so far is, then, expelled from the defendant's file, with the exception of those pieces of evidence that cannot be repeated, such as the initial autopsy or a search and seizure, or that were gathered in the defendant's presence and in that of his lawyer or his experts.
Trial
During the dibattimento (trial), both the Prosecutor and the defendant try to make their case.
Article 111 of the Italian Constitution states that
2. Trials are based on equal confrontation of the parties before an independent and impartial judge. The law has to define reasonable time limits for the proceedings.
3. In criminal trials, the law provides for timely and confidential information of the accused regarding the nature and reasons of charges brought against them; they are granted the time and means for their defense; they have the right to question those who testify against them or to have them questioned; those who may testify in favor of the accused must be summoned and examined under the same conditions granted to the prosecution; any evidence in favor of the accused must be acknowledged; the accused may rely on the help of an interpreter if they do not understand or speak the language of the proceedings.
4. In criminal trials, evidence may only be established according to the principle of confrontation between parties. No defendant may be proven guilty on the basis of testimony given by witnesses who freely and purposely avoided cross-examination by the defense.