Italian Code of Criminal Procedure
Encyclopedia
The Italian Code of Criminal Procedure contains the rules governing criminal procedure
in every court in Italy.
The first and initial code in the Italian Republic was established by the Fascist Government
in 1930 and was kept until 1988. This code adopted an inquisitorial system
. In 1988, a new code was enacted that chose to abandon the inquisitorial system but did not complete full transition to an adversarial system
; the resulting system could be considered to be somewhere in between.
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), the parte lesa (the injured party), 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).
The indagato (the person who is suspected to have committed the crime) can charge a lawyer to investigate on that person's behalf, in order to prove innocence.
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 case of interrogations, of searches and of seizures, the imputato can ask that his lawyer be present.
There are many kinds of precautionary measures:
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 of the appeal.
The Corte di Cassazione, on the contrary, cannot rule on merits, but only on correct procedure and correct interpretation of the law.
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.
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 were 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 inormation concerning someone else's criminal responsibility, he will assume, as far as this responsibility is concerned, the office of witness.
If evidence should be gathered in violation of these principles, it would be inadmissible in court.
, 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 defendant and by his attorney.
By this notice, the defendant 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 defendant can also ask the Prosecutor to carry out specific acts of inquiry.
The Prosecutor may comply within thirty days; he must, however, question the defendant, if he so asks.
If the Prosecutor does not serve this notice, the decreto di rinvio al giudizio (indictment) is null and void.
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 ) 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.
Article 111 of the Italian Constitution states that
During the trial, all the witnesses must bear testimony once again, as must the experts. Plus, all the experiments, conducted during the preliminary investigations, must be repeated as possible and so on, to allow the defendant to actually participate in the process of formazione della prova (proof formation).
If the Giudice del Dibattimento (Judge of the Trial) is convinced beyond any reasonable doubts the defendant is guilty, the Judge must convict him; if not, the Judge must acquit. The Judge must also publish written explanations of his decisions.
.
A defendant can also choose to make spontaneous statements to the Judge; he can tell whatever he wishes to tell and can choose not to answer any questions. In this case too, a defendant can lie without consequences.
Before the beginning of the trial phase, the parties file a brief, detailing all evidence they want to present – the parties have to indicate by name every witness and precise what these will be asked –; both the defendant and the prosecutor can cross-examine each other's witnesses. The Judge may choose not to admit any testimony that appears patently superfluous, reject irrelevant or improper or irregular questions – such as leading questions – and also ask questions to the witnesses and experts.
The Judge can also, but only when absolutely necessary, order additional evidence to be taken.
of peers: everyone is judged by professional judges or by a panel of judges (three or five or nine). The only exception to the use of professional judges is in the Corte d'Assise
, which is made up of eight judges: two are professional, six are lay (they are called Giudici Popolari or Popular Judges, where 'popular' means 'of the people'). All wear a sash in the national colours. They are not technically jurors, as the term is understood in Anglo-Saxon jurisprudence
. In Italian, Giudice (Judge) refers both to the eight of them together as a collective body and to each of them considered separately as a member of that body.
Since Lay Judges are not jurors, they cannot be excused, unless there are grounds that would justify an objection to a Judge. Also, they are not sequestered
, because a trial often lasts too long to restrict travel: an Italian trial, including the preliminary investigations, preliminary hearing, trial and appeals, can last several years. To keep a citizen — who continues to work, while serving as a Popular Judge — sequestered for years would be unfeasible.
The prosecutor can appeal all judgements issued by the Court of first instance — this means that a not-guilty verdict can be appealed and overturned too -. The Court of Appeals can hand down a more serious penalty than the Court of instance.
Only when the defendant alone has appealed the judgement, the Court of Appeals cannot issue a more serious sentence.
In these cases, the Court quashes the previous judgement, but it remands the case to another criminal division of the Appellate Court that issued the appealed decision or, if it is not possible, to a criminal division of the nearest Appellate Court.
The Judge ad quem (the one the case is remanded to) can try de novo
the defendant, but must conform to the contingent points of law applied by the Court of Cassation. The verdict issued by the Judge ad quem is appeal
able before the Court of Cassation.
, to a period of time equalling the maximum penalty provided for by law, which cannot, though, be less than six years for crimini (felonies
) and four years for contravvenzioni (misdemeanours).
It is not enough that the criminal suit was started before the statute of limitations ran out: it is the definitive sentence that must be handed down before the term expires.
There is also another statute of limitations, limiting the time for enforcing a penalty, to a period of time provided for by law: twice the time to be served, or ten years in the case of a fine, when dealing with a felony; five years, when dealing with misdemeanours.
It is the Judge of the Preliminary Hearing who, according to the evidence gathered, during the preliminary investigations by the prosecutor and by the lawyer during the defensive investigations, if there were any, convicts or acquits the defendant.
Since this is a reduction of the defendant's rights (he basically gives up his right to presenting new evidence and to be tried by a Judge of the Trial), it must be he who asks that the Judge of the Preliminary Hearing hand down a judgement over him.
The defendant is rewarded with a reduction on the sentence. The law states that this reduction is one third. If the crime was punishable by life imprisonment, the defendant will be sentenced to thirty years.
Both the defendant and the prosecutor can appeal the judgement before the Court of Appeals.
(or that it would just be a fine), he may plea-bargain with the defendant.
Since a prosecutor is obliged to prosecute all crimes he becomes aware of, as per the Constitution, he cannot drop a serious charge, if the defendant accepts to plead guilty to a lesser charge. This means that Italian plea bargaining is quite different from the American.
The defendant must accept to plead guilty to the charges, no matter how serious they are. The bargaining is not about the charges, but about the sentence. When both the prosecutor and the defendant have come to an agreement, the proposal is submitted to the Judge for the Preliminary Investigations or to the Judge for the Preliminary Hearing. He will, then, weigh the evidence and, if he is convinced that the defendant is not guilty, he must not accept the proposal and acquit the defendant; if, on the contrary, he deems that the defendant is guilty and is satisfied with the punishment, he must sanction the proposal. If the Judge deems that the defendant is guilty, but thinks that the proposed punishment is too light, he can refuse to accept the proposal and the proceeding will continue, but the defendant can ask again that his proposal be accepted.
If a Judge accepts a proposal by the prosecutor and the defendant, the judgement can be appealed only before the Court of Cassation.
ed in flagrante delicto
, the prosecutor can order that he be conducted before the Judge of the Trial, within thirty days of the arrest
, if he is still in remedial custody; if he was freed, the prosecutor summons the defendant to appear before the court. If there is no need to carry out any further investigations, the defendant will be tried immediately.
The prosecutor and the defendant can appeal the judgement.
This application must be submitted within 90 days of the beginning of the investigations.
The imputato too can apply for the immediate trial.
If the Judge for the Preliminary Hearing grants this request, the Preliminary Hearing does not take place.
The application must indicate the evidence gathered so far and the punishment considered adequate, which can be diminished to up to half the penalty imposed by law. The judge can acquit the defendant or inflict the punishment requested.
The defendant can impugn the decree within 15 days of the service of the decree. If this happens, the defendant is summoned before the Judge of the Preliminary Hearing.
In his criminal complaint, the injured party can declare that he does not want the defendant to be convicted by decree.
, his heir — if the convict is dead — or the Procuratore Generale presso la Corte d'Appello (the Public Prosecutor attached to the Court of Appeals) may apply to the Court of Appeals for a review of trial.
The Court decides de plano with an ordinanza if the application is receivable; if it deems it is not, the losing party can appeal the ordinanza before the Corte di Cassazione.
If the Court of Appeals, or the Court of Cassation, deems that the application is receivable, the second part of the review begins before the Court of Appeals itself. During the new trial, the Court reexamines all evidence and can acquit the defendant or uphold his conviction; the verdict is, then appeal
able before the Court of Cassation.
Even if an application for review was turned down before, the convict can apply again, so long as he presents new evidence.
A "not guilty" verdict, which has become irrevocable — that has been upheld by the Court of Cassation, that is to say —, can never be reviewed.
Other cases of review are as follows:
Criminal procedure
Criminal procedure refers to the legal process for adjudicating claims that someone has violated criminal law.-Basic rights:Currently, in many countries with a democratic system and the rule of law, criminal procedure puts the burden of proof on the prosecution – that is, it is up to the...
in every court in Italy.
The first and initial code in the Italian Republic was established by the Fascist Government
Fascism
Fascism is a radical authoritarian nationalist political ideology. Fascists seek to rejuvenate their nation based on commitment to the national community as an organic entity, in which individuals are bound together in national identity by suprapersonal connections of ancestry, culture, and blood...
in 1930 and was kept until 1988. This code adopted an inquisitorial system
Inquisitorial system
An inquisitorial system is a legal system where the court or a part of the court is actively involved in investigating the facts of the case, as opposed to an adversarial system where the role of the court is primarily that of an impartial referee between the prosecution and the defense...
. In 1988, a new code was enacted that chose to abandon the inquisitorial system but did not complete full transition to an adversarial system
Adversarial system
The adversarial system is a legal system where two advocates represent their parties' positions before an impartial person or group of people, usually a jury or judge, who attempt to determine the truth of the case...
; the resulting system could be considered to be somewhere in between.
Parties
The main parties to a criminal trial are the Judge, the defendant and the Pubblico Ministero (the prosecutor).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), the parte lesa (the injured party), 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).
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[p] - Judge), he must try and 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.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.The indagato (the person who is suspected to have committed the crime) can charge a lawyer to investigate on that person's behalf, in order to prove innocence.
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 case of interrogations, of searches and of seizures, the imputato 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:
| 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 of 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.The police
Police
The police is a personification of the state designated to put in practice the enforced law, protect property and reduce civil disorder in civilian matters. Their powers include the legitimized use of force...
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.
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
Police
The police is a personification of the state designated to put in practice the enforced law, protect property and reduce civil disorder in civilian matters. Their powers include the legitimized use of force...
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 were 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 inormation concerning someone else's criminal responsibility, he will assume, as far as this responsibility is concerned, the office of witness.
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 defendant before the Judge of the Preliminary Hearing, he must serve a notice to the defendantDefendant
A defendant or defender is any party who is required to answer the complaint of a plaintiff or pursuer in a civil lawsuit before a court, or any party who has been formally charged or accused of violating a criminal statute...
, in which the latter is informed of the crime
Crime
Crime is the breach of rules or laws for which some governing authority can ultimately prescribe a conviction...
he is alleged to have committed and that all the evidence gathered up to that moment can be examined by the defendant and by his attorney.
By this notice, the defendant is also informed that he can, within twenty days, file a defensive brief
Brief (law)
A brief is a written legal document used in various legal adversarial systems that is presented to a court arguing why the party to the case should prevail....
, present the results of the defensive inquiry, appear before the Prosecutor to make spontaneous statements or to ask the Prosecutor to question him; the defendant can also ask the Prosecutor to carry out specific acts of inquiry.
The Prosecutor may comply within thirty days; he must, however, question the defendant, if he so asks.
If the Prosecutor does not serve this notice, the decreto di rinvio al giudizio (indictment) is null and void.
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 defendant to appear before the Judge of the Preliminary Hearing (JPH).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 ) 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.
During the trial, all the witnesses must bear testimony once again, as must the experts. Plus, all the experiments, conducted during the preliminary investigations, must be repeated as possible and so on, to allow the defendant to actually participate in the process of formazione della prova (proof formation).
If the Giudice del Dibattimento (Judge of the Trial) is convinced beyond any reasonable doubts the defendant is guilty, the Judge must convict him; if not, the Judge must acquit. The Judge must also publish written explanations of his decisions.
Defendant
The defendant can be called to the stand, but he may refuse to bear testimony, or he may refuse to answer some questions. He can also lie. Since he does not take an oath and since he is not technically a witness, if a defendant tells a lie, he is not committing perjuryPerjury
Perjury, also known as forswearing, is the willful act of swearing a false oath or affirmation to tell the truth, whether spoken or in writing, concerning matters material to a judicial proceeding. That is, the witness falsely promises to tell the truth about matters which affect the outcome of the...
.
A defendant can also choose to make spontaneous statements to the Judge; he can tell whatever he wishes to tell and can choose not to answer any questions. In this case too, a defendant can lie without consequences.
Evidence
For a defendant to be convicted, the Judge must be internally convinced (Italian law requires the Judge's intimo convincimento); because of that, there are no rules that predetermine the weight to be attributed to any given piece of evidence, so even credible admissions [of guilt] can do no more than reduce the amount of extrinsic evidence necessary for a finding of guilt.Before the beginning of the trial phase, the parties file a brief, detailing all evidence they want to present – the parties have to indicate by name every witness and precise what these will be asked –; both the defendant and the prosecutor can cross-examine each other's witnesses. The Judge may choose not to admit any testimony that appears patently superfluous, reject irrelevant or improper or irregular questions – such as leading questions – and also ask questions to the witnesses and experts.
The Judge can also, but only when absolutely necessary, order additional evidence to be taken.
Judges of the trial
Italy does not try anybody by a juryJury
A jury is a sworn body of people convened to render an impartial verdict officially submitted to them by a court, or to set a penalty or judgment. Modern juries tend to be found in courts to ascertain the guilt, or lack thereof, in a crime. In Anglophone jurisdictions, the verdict may be guilty,...
of peers: everyone is judged by professional judges or by a panel of judges (three or five or nine). The only exception to the use of professional judges is in the Corte d'Assise
Corte d'Assise
The Corte d'Assise is an Italian court composed of two professional judges, Giudici Togati, and six lay judges, Giudici Popolari, selected from the people. The court has jurisdiction to judge the most serious crimes, such as terrorism, murder. Penalties imposed by the court can include life...
, which is made up of eight judges: two are professional, six are lay (they are called Giudici Popolari or Popular Judges, where 'popular' means 'of the people'). All wear a sash in the national colours. They are not technically jurors, as the term is understood in Anglo-Saxon jurisprudence
Jurisprudence
Jurisprudence is the theory and philosophy of law. Scholars of jurisprudence, or legal theorists , hope to obtain a deeper understanding of the nature of law, of legal reasoning, legal systems and of legal institutions...
. In Italian, Giudice (Judge) refers both to the eight of them together as a collective body and to each of them considered separately as a member of that body.
Since Lay Judges are not jurors, they cannot be excused, unless there are grounds that would justify an objection to a Judge. Also, they are not sequestered
Sequestration (law)
Sequestration is the act of removing, separating, or seizing anything from the possession of its owner under process of law for the benefit of creditors or the state.-Etymology:...
, because a trial often lasts too long to restrict travel: an Italian trial, including the preliminary investigations, preliminary hearing, trial and appeals, can last several years. To keep a citizen — who continues to work, while serving as a Popular Judge — sequestered for years would be unfeasible.
| Judge | Specification | Members of the Court | Cognizance | Sentence | Appeal |
|---|---|---|---|---|---|
| Justice of the peace Justice of the Peace A justice of the peace is a puisne judicial officer elected or appointed by means of a commission to keep the peace. Depending on the jurisdiction, they might dispense summary justice or merely deal with local administrative applications in common law jurisdictions... |
|
Petty offences, such as slander, libel or criminal threatening Criminal threatening Criminal threatening is the crime of intentionally or knowingly putting another person in fear of imminent bodily injury.There is no legal definition in English law as to what constitutes criminal threatening behaviour, so it is up to the courts to decide on a case by case basis. However,... |
Community service Community service is donated service or activity that is performed by someone or a group of people for the benefit of the public or its institutions.... , but only if the defendant so asks |
Tribunale monocratico | |
| Tribunale | Monocratico |
|
All crimes that are not within the cognizance of the Justice of the peace Justice of the Peace A justice of the peace is a puisne judicial officer elected or appointed by means of a commission to keep the peace. Depending on the jurisdiction, they might dispense summary justice or merely deal with local administrative applications in common law jurisdictions... or of the Corte d'Assise Corte d'Assise The Corte d'Assise is an Italian court composed of two professional judges, Giudici Togati, and six lay judges, Giudici Popolari, selected from the people. The court has jurisdiction to judge the most serious crimes, such as terrorism, murder. Penalties imposed by the court can include life... |
|
Court of Appeals |
| Collegiale |
|
|
|||
| Corte d'Assise Corte d'Assise The Corte d'Assise is an Italian court composed of two professional judges, Giudici Togati, and six lay judges, Giudici Popolari, selected from the people. The court has jurisdiction to judge the most serious crimes, such as terrorism, murder. Penalties imposed by the court can include life... |
|
Major felonies, such as murder Murder Murder is the unlawful killing, with malice aforethought, of another human being, and generally this state of mind distinguishes murder from other forms of unlawful homicide... , massacre, terrorism Terrorism Terrorism is the systematic use of terror, especially as a means of coercion. In the international community, however, terrorism has no universally agreed, legally binding, criminal law definition... |
Life imprisonment Life imprisonment is a sentence of imprisonment for a serious crime under which the convicted person is to remain in jail for the rest of his or her life... . |
Corte d'Assise d'Appello | |
Appeals
Both the defendant and the prosecutor can appeal against the judgement before the Corte d'Appello (Court of Appeals), that will retry the defendant. The judgement passed by the Court of Appeals can be appealed, again, before the Court of Cassation, that cannot rule on merits. Both the Court of Appeals and the Court of Cassation must examine and rule on every appeal. They can uphold, modify or quash the sentence.The prosecutor can appeal all judgements issued by the Court of first instance — this means that a not-guilty verdict can be appealed and overturned too -. The Court of Appeals can hand down a more serious penalty than the Court of instance.
Only when the defendant alone has appealed the judgement, the Court of Appeals cannot issue a more serious sentence.
Appellate Courts
| Judge | Members of the Court | Cognizance | Appeal |
|---|---|---|---|
| Tribunale monocratico |
|
Appeals against judgements rendered by a Justice of the peace Justice of the Peace A justice of the peace is a puisne judicial officer elected or appointed by means of a commission to keep the peace. Depending on the jurisdiction, they might dispense summary justice or merely deal with local administrative applications in common law jurisdictions... |
Court of Cassation Court of Cassation (Italy) The Supreme Court of Cassation is the major court of last resort in Italy. It has its seat in the Rome Hall of Justice.The Court of Cassation exists also to “ensure the observation and the correct interpretation of law” by ensuring the same application of law in the inferior and appeal courts... |
| Court of Appeals |
|
Appeals against judgements rendered by a Tribunale | |
| Corte d'Assise d'Appello |
|
Appeals against judgements rendered by a Corte d'Assise Corte d'Assise The Corte d'Assise is an Italian court composed of two professional judges, Giudici Togati, and six lay judges, Giudici Popolari, selected from the people. The court has jurisdiction to judge the most serious crimes, such as terrorism, murder. Penalties imposed by the court can include life... |
|
Cassation with remandment
The Court of Cassation cannot rule on the merits of a case, so, when quashing a verdict issued by a lower Court, it is possible that the members of the Court realize that further fact-finding is required to reach a final judgement.In these cases, the Court quashes the previous judgement, but it remands the case to another criminal division of the Appellate Court that issued the appealed decision or, if it is not possible, to a criminal division of the nearest Appellate Court.
The Judge ad quem (the one the case is remanded to) can try de novo
Trial de novo
In law, the expression trial de novo means a "new trial" by a different tribunal...
the defendant, but must conform to the contingent points of law applied by the Court of Cassation. The verdict issued by the Judge ad quem is appeal
Appeal
An appeal is a petition for review of a case that has been decided by a court of law. The petition is made to a higher court for the purpose of overturning the lower court's decision....
able before the Court of Cassation.
Verdicts
The following are the only verdicts that a Judge can pass at the end of a trial.| Verdict | Specification | Meaning | |
|---|---|---|---|
| Guilty Guilt (law) In criminal law, guilt is entirely externally defined by the state, or more generally a “court of law.” Being “guilty” of a criminal offense means that one has committed a violation of criminal law, or performed all the elements of the offense set out by a criminal statute... (colpevole) |
Conviction Conviction In law, a conviction is the verdict that results when a court of law finds a defendant guilty of a crime.The opposite of a conviction is an acquittal . In Scotland and in the Netherlands, there can also be a verdict of "not proven", which counts as an acquittal... (condanna) |
The defendant is found guilty and is, thereby, sentenced Sentence (law) In law, a sentence forms the final explicit act of a judge-ruled process, and also the symbolic principal act connected to his function. The sentence can generally involve a decree of imprisonment, a fine and/or other punishments against a defendant convicted of a crime... by the Judge |
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| Not Guilty Acquittal In the common law tradition, an acquittal formally certifies the accused is free from the charge of an offense, as far as the criminal law is concerned. This is so even where the prosecution is abandoned nolle prosequi... (non colpevole) |
Acquittal Acquittal In the common law tradition, an acquittal formally certifies the accused is free from the charge of an offense, as far as the criminal law is concerned. This is so even where the prosecution is abandoned nolle prosequi... (assoluzione) |
Perché il fatto non sussiste | Because the action, the defendant was alleged to have committed, never took place |
| Perché l'imputato non lo ha commesso | Because the defendant did not commit the action he was alleged to have committed, but that action did take place | ||
| Perché il fatto non costituisce reato | Because the action, committed by the defendant, is not considered a crime, for he was excused (e.g. self defense) | ||
| Perché il fatto non è previsto dalla Legge come reato | Because law no longer considers the action committed by the defendant to be a crime | ||
| Perché l'imputato non è punibile | Because the defendant is not liable for his crime, because he was legally insane at the time | ||
| Non doversi procedere | There is a cause that prevents the Judge from actually deciding wheter the defendant was guilty (e.g. an amnesty Amnesty Amnesty is a legislative or executive act by which a state restores those who may have been guilty of an offense against it to the positions of innocent people, without changing the laws defining the offense. It includes more than pardon, in as much as it obliterates all legal remembrance of the... as been passed, the statute of limitations Statute of limitations A statute of limitations is an enactment in a common law legal system that sets the maximum time after an event that legal proceedings based on that event may be initiated... has expired, the injured party did not submit a criminal complaint Complaint In legal terminology, a complaint is a formal legal document that sets out the facts and legal reasons that the filing party or parties In legal terminology, a complaint is a formal legal document that sets out the facts and legal reasons (see: cause of action) that the filing party or parties In... etc.) |
Statute of limitations
The Italian criminal system has a statute limiting the time for prosecution of all crimes, apart from felonies punishable by life imprisonmentLife imprisonment
Life imprisonment is a sentence of imprisonment for a serious crime under which the convicted person is to remain in jail for the rest of his or her life...
, to a period of time equalling the maximum penalty provided for by law, which cannot, though, be less than six years for crimini (felonies
Felony
A felony is a serious crime in the common law countries. The term originates from English common law where felonies were originally crimes which involved the confiscation of a convicted person's land and goods; other crimes were called misdemeanors...
) and four years for contravvenzioni (misdemeanours).
It is not enough that the criminal suit was started before the statute of limitations ran out: it is the definitive sentence that must be handed down before the term expires.
There is also another statute of limitations, limiting the time for enforcing a penalty, to a period of time provided for by law: twice the time to be served, or ten years in the case of a fine, when dealing with a felony; five years, when dealing with misdemeanours.
Special Proceedings
Generally, every criminal proceeding follows the same pattern: there are the preliminary investigations, there's a preliminary hearing, the trial and the appeals. It may occur, though, that one of these phases is not present.Fast-track trial
The giudizio abbreviato (fast-track trial, literally abbreviated proceeding) consists, basically, of a proceeding where the trial phase is absent.It is the Judge of the Preliminary Hearing who, according to the evidence gathered, during the preliminary investigations by the prosecutor and by the lawyer during the defensive investigations, if there were any, convicts or acquits the defendant.
Since this is a reduction of the defendant's rights (he basically gives up his right to presenting new evidence and to be tried by a Judge of the Trial), it must be he who asks that the Judge of the Preliminary Hearing hand down a judgement over him.
The defendant is rewarded with a reduction on the sentence. The law states that this reduction is one third. If the crime was punishable by life imprisonment, the defendant will be sentenced to thirty years.
Both the defendant and the prosecutor can appeal the judgement before the Court of Appeals.
Plea bargaining (patteggiamento)
When the prosecutor deems that the punishment that would, concretely, be handed down is less than five-year imprisonmentImprisonment
Imprisonment is a legal term.The book Termes de la Ley contains the following definition:This passage was approved by Atkin and Duke LJJ in Meering v Grahame White Aviation Co....
(or that it would just be a fine), he may plea-bargain with the defendant.
Since a prosecutor is obliged to prosecute all crimes he becomes aware of, as per the Constitution, he cannot drop a serious charge, if the defendant accepts to plead guilty to a lesser charge. This means that Italian plea bargaining is quite different from the American.
The defendant must accept to plead guilty to the charges, no matter how serious they are. The bargaining is not about the charges, but about the sentence. When both the prosecutor and the defendant have come to an agreement, the proposal is submitted to the Judge for the Preliminary Investigations or to the Judge for the Preliminary Hearing. He will, then, weigh the evidence and, if he is convinced that the defendant is not guilty, he must not accept the proposal and acquit the defendant; if, on the contrary, he deems that the defendant is guilty and is satisfied with the punishment, he must sanction the proposal. If the Judge deems that the defendant is guilty, but thinks that the proposed punishment is too light, he can refuse to accept the proposal and the proceeding will continue, but the defendant can ask again that his proposal be accepted.
If a Judge accepts a proposal by the prosecutor and the defendant, the judgement can be appealed only before the Court of Cassation.
Giudizio direttissimo
When the defendant was arrestArrest
An arrest is the act of depriving a person of his or her liberty usually in relation to the purported investigation and prevention of crime and presenting into the criminal justice system or harm to oneself or others...
ed in flagrante delicto
In flagrante delicto
In flagrante delicto or sometimes simply in flagrante is a legal term used to indicate that a criminal has been caught in the act of committing an offence...
, the prosecutor can order that he be conducted before the Judge of the Trial, within thirty days of the arrest
Arrest
An arrest is the act of depriving a person of his or her liberty usually in relation to the purported investigation and prevention of crime and presenting into the criminal justice system or harm to oneself or others...
, if he is still in remedial custody; if he was freed, the prosecutor summons the defendant to appear before the court. If there is no need to carry out any further investigations, the defendant will be tried immediately.
The prosecutor and the defendant can appeal the judgement.
Immediate trial (giudizio immediato)
When it appears manifest that the indagato has committed the crime, if this does not seriously compromise the investigations, and when the indagato has been interrogated, or, summoned before the public prosecutor, has not appeared, or when the imputato is under provisional arrest, the public prosecutor can apply to the Judge for the Preliminary Investigations for the immediate trial.This application must be submitted within 90 days of the beginning of the investigations.
The imputato too can apply for the immediate trial.
If the Judge for the Preliminary Hearing grants this request, the Preliminary Hearing does not take place.
Criminal Decree of Conviction (decreto penale di condanna)
When the public prosecutor deems that the defendant should just be handed down a fine (even if inflicted in lieu of a prison sentence ), he may apply, within six months of the beginning of the investigations, to the Judge for the Preliminary Investigations for a criminal decree of convinction.The application must indicate the evidence gathered so far and the punishment considered adequate, which can be diminished to up to half the penalty imposed by law. The judge can acquit the defendant or inflict the punishment requested.
The defendant can impugn the decree within 15 days of the service of the decree. If this happens, the defendant is summoned before the Judge of the Preliminary Hearing.
In his criminal complaint, the injured party can declare that he does not want the defendant to be convicted by decree.
Review of trial
When new evidence is discovered, that by itself or together with that presented during the trial might justify an acquittal, the convict, his next of kin, his guardianLegal guardian
A legal guardian is a person who has the legal authority to care for the personal and property interests of another person, called a ward. Usually, a person has the status of guardian because the ward is incapable of caring for his or her own interests due to infancy, incapacity, or disability...
, his heir — if the convict is dead — or the Procuratore Generale presso la Corte d'Appello (the Public Prosecutor attached to the Court of Appeals) may apply to the Court of Appeals for a review of trial.
The Court decides de plano with an ordinanza if the application is receivable; if it deems it is not, the losing party can appeal the ordinanza before the Corte di Cassazione.
If the Court of Appeals, or the Court of Cassation, deems that the application is receivable, the second part of the review begins before the Court of Appeals itself. During the new trial, the Court reexamines all evidence and can acquit the defendant or uphold his conviction; the verdict is, then appeal
Appeal
An appeal is a petition for review of a case that has been decided by a court of law. The petition is made to a higher court for the purpose of overturning the lower court's decision....
able before the Court of Cassation.
Even if an application for review was turned down before, the convict can apply again, so long as he presents new evidence.
A "not guilty" verdict, which has become irrevocable — that has been upheld by the Court of Cassation, that is to say —, can never be reviewed.
Other cases of review are as follows:
- the conviction was based upon the facts ascertained by a civil or administrative Judge and his judgement has been revoked;
- the conviction was the consequence of perjuryPerjuryPerjury, also known as forswearing, is the willful act of swearing a false oath or affirmation to tell the truth, whether spoken or in writing, concerning matters material to a judicial proceeding. That is, the witness falsely promises to tell the truth about matters which affect the outcome of the...
, briberyBriberyBribery, a form of corruption, is an act implying money or gift giving that alters the behavior of the recipient. Bribery constitutes a crime and is defined by Black's Law Dictionary as the offering, giving, receiving, or soliciting of any item of value to influence the actions of an official or...
or of another crime and the conviction for this crime is irrevocable; - there is discrepancy between the findings of fact contained in the conviction and in another irrevocable one.