Italian Laws & Legal Process


Postby Michael » Tue Mar 24, 2009 10:55 pm



The role the public prosecution service should play in criminal proceedings is one of the most crucial issues in the metabolism of criminal trial and, therefore, one of the most discussed.
Many different blueprints do raise disagreements and feed a strong debate. One of the issues is which position the public prosecution service should be given in relation to other institutions and, particularly, to the government. Another issue is the contrast between a prosecutor bound by the legality principle and that of a prosecutor entitled to discretion in the prosecution of crimes. Other focus points are the internal relations within the prosecution office, and the relationship between the prosecution office and police.
All these issues touch the same overriding issue: who should be entitled to define the criminal policy and how should that policy be carried out and be applied in practice.
The present organisation of the public prosecution service in Italy – which has been outlined by the Constitution of 1947 – responds to the idea that policies on crime should be defined by the Parliament through enacting the criminal laws to be respected in the State. The public prosecution service, bound by the legality principle, and absolutely independent, should be the agency applying those policies, guaranteeing that the law is fully respected by every citizen, at any time. This means that criminal prosecution is mandatory: it should be necessarily undertaken whenever the suspicion of a crime does arise and offences should never be disregarded by the prosecu¬tion office.

Since the prosecution service is bound by the legality principle, prosecutors should obey the law only, as this is the only parameter they should use when performing their duties. This indeed also suggests the absence of any hierarchical organisation; since when the law is the only master of a prosecutor, the law should also be the only authority he should take order from and respond to.

This traditional concept of the public prosecution service has recently shown some weaknesses. This depends upon different variables. On the one hand, the extremely high number of proceedings results in caseload pressures, which are greater than that the actual organisation of the prose¬cution service can stand. This seems to make the legality principle evanescent as it forces prosecution offices to operate by setting priority standards on which cases to deal with first.
On another hand, studies on the interpretation of the law have shown that there is discretion in any interpretation, and therefore also in that of the public prosecutor accomplishing his duty.

These two observations in particular have made the belief grow that the decisions of the prosecution service are not as neutral as considered in the past and that they are subject to discretionary evaluations.
These conclusions challenge the coherence of the traditional view as expressed in the Constitution and in the Code of Criminal Procedure (CCP) and raise the question whether the role of the public prosecutor should remain the same or should be altered in some ways. Amongst others, the following questions are put forward. Shall the prosecution service remain independent from the political institutions or rather be put under the authority of the Government, so as to become politically responsible for its activities? Shall the principle of mandatory prosecution be preserved in the legislation, or would it be better to have it substituted by the opportunity principle? How should the prosecution office be structured, so as to guarantee a maximum of efficiency?

The debate is very intense at present and complicated by political interests. Some of these important issues have been dealt with in a bill (n. 1296), which has been approved by the Senate recently. This reform – which still needs the approval of the Chamber of Deputies – provides general guidelines that the government shall follow in issuing a legislative decree on the status of the judiciary. Even though the way to final approval is still a long one, and even though the government might decide not to exercise the delegated power of making this law, some of the provisions of the bill outline new scenarios.
As regards the prosecution service, the bill proposes a hierarchical organisation, which concentrates all powers of each prosecution office in the hands of the chief prosecutor. The goal is to grant more coherent action in the policy on crime: since there is inevitable discretion in prosecution activities, the first risk to be prevented is that of the discretion to be unpredictable, so that citizen can feel in jeopardy at any time. Those who oppose the bill observe that granting so many powers to a single official could be dangerous as it creates an excessively powerful position. Moreover, opponents fear this could be the first step for putting the prosecution under the government’s control, since a prosecutor with so many powers cannot remain independent for long.

The prosecutors will be positioned in the judiciary, but their function will be strictly separated from that of the judges. Admissions to the two different functions will depend on different criteria and examinations and passing an exam will also be necessary in order to move from one branch of the judiciary to the other.
The bill proves that the topic of the prosecution service, its activity and structure, is one of the most incandescent issues at present. But while the debate goes on and while legislative changes are being prepared, the prose¬cution system to be described here is still that created by the Constitution – with some inevitable adjustments to reality – that have however given good proof of longevity and of functionality.

Posts: 8054
Images: 60
Joined: Sun Jan 20, 2008 7:06 pm


Postby Michael » Tue Mar 24, 2009 11:02 pm


Chapter I
The Relation between the Public Prosecutor and the Police

As a general rule, the prosecutor has full responsibility for the investigation of any case in the system. He may initiate the investigation on his own and will decide on the manner in which it has to be conducted. When a complaint is lodged by a private person or information is reported by the police, the prosecutor has the duty to investigate in order to ascertain whether there is sufficient evidence to bring proceedings.
An exception has been provided by a statute passed by the Parliament in 2000, which has extended the jurisdiction to the justice of the peace, a lay judge established to deal with minor offences. In the proceedings in front of the justice of the peace, the police are responsible for collecting information, and conducting all the necessary investigations in order to find out whether an offence has been actually committed and to identify the offender. On the basis of a report submitted by the police, the prosecutor decides whether to charge the suspect or to dismiss the case.

Even though the prosecutor, according to the Constitution (Sect. 109), may avail himself of the police during the investigation stage, the police depends on the Executive organisationally.
One specialised branch of the police is specifically entitled to investigate crimes committed. When exercising this function, this branch is put under the direction of the prosecutor. Given the dependence of the police on the Executive, some have feared that orders given by the prosecutor might become the subject of external interference and have proposed the creation of a specific organisation for investigations in criminal proceedings.
In order to prevent undue influence of the Executive, the CCP aims to guarantee the strongest functional dependence of the police on the prosecutor. The structure of police investigations is organised through three levels: services (servizi), sections (sezioni), and other bodies competent in specific situations as defined by the law.
The innovation of the CCP of 1988 was the creation of these sections. These are units expressly established by the law and placed in each prosecu¬tion office to the tribunal. These units are manned by personnel coming from different sectors within the police. They are exclusively assigned to investi¬gating tasks in criminal proceedings and they cannot be diverted from them. By instituting these sections, the code of 1988 has granted a constant and steady support to the prosecution office.
The services, instead, are organised by each police force and include all those offices of that force (e. g. the forensic laboratory department) that have been given the main duty of covering investigating functions under the prosecutor’s direction. The law also provides that in specific situations (such as particular types of crimes) certain offices of the police should investigate and support the prosecution service.
Since the police is organised along hierarchical lines, the chief officer in each service has the task to watch over the respect of the statutory rules and procedures. As a consequence, the prosecutor can give orders, but lacks hierarchical powers to sanction the misconduct of the police. However, the Prosecutor-General to the Court of Appeal has the power to bring discipli¬nary proceedings. When this action is taken, a commission composed of two judicial officers and one police officer decides whether there has been misconduct and which sanctions must be applied. In addition, the chief officer cannot be promoted nor transferred without the consent of the Prosecutor-General.

With regard to the relation between the prosecutor and the police, the rules originally laid down by the 1988 CCP have been modified by statutes enacted in 1992 and in 2001. Even if the prosecutor is still the dominus of the investigation, it can be said that the tendency is towards strengthening the role of the police.
The police are generally the first authority to deal with an offence. They are obliged to collect information about offences committed and to prevent further offences, even on their own initiative. They must take the necessary steps to protect the evidence and gather any other data that may be useful for the enforcement of criminal law.
The police are obliged to report every offence to the prosecutor without delay, and to inform him of the basic elements of the act, of the evidence collected and of the investigations carried out. If possible, they provide data to identify the suspect, the victim and any witnesses.
When the police have carried out acts of investigation which require the assistance of a defense counsel, the offence has to be reported within 24 hours. In case of serious crimes, the prosecutor must be informed imme¬diately. Once the information is received, the prosecutor registers the reported offence (notitia criminis) in the official records. From the registration of the name of the suspect in the records, the investigations cannot last more than six months, but a new term may be granted by the judge on reasonable grounds, up to a maximum period of one year and half (two years for the most serious crimes).

Only in early stage of the proceedings the police are partially independent of the prosecutor. In fact, once the information has been received, the prosecu¬tor takes the lead in the investigation and has the power to give guidelines to the police. Nevertheless, until these guidelines are issued by the prosecutor, the police are entitled to continue their investigations in order to find out the corpus delicti and to identify the suspect and the witnesses.
After the prosecutor has taken control over the investigation, the autonomy of the police is strictly limited. On the one hand, the police must follow the guidelines and carry out the investigative acts ordered by the prosecutor. On the other, they can conduct all other investigations necessary in order to ascertain the offence on their own initiative, but the prosecutor must be promptly informed.
The instructions given by the prosecutor can concern specific investigative acts, but can also be generic and indicate the kind of information related to the offence which must be gathered by the police only. However, the prosecutor’s guidelines are always directly connected to the specific case under investigation; in this regard, they are not general instruc¬tions, given to the police to be applied in all cases. The latter solution could not be adopted because police duties shall be defined by law.
In these specific instructions, the police may be requested to summon and question the witnesses and the victim; they may also be requested to question the suspect, on condition that he is not under arrest and is assisted by the defense counsel. Moreover, the police may perform searches and seizures ordered by the prosecutor. In the latter case, the police have discretionary powers with regard to the choice of the most suitable means for reaching the targets laid down by the guidelines.
Notwithstanding the guidelines set by the prosecutor, the police can continue to investigate on their own initiative, although the investigations carried out have to be aimed to reach the same targets as those laid down by the prosecutor. In particular, the police may always, without a specific order, summon and question witnesses and the victim, as well as the suspect (on condition that he is not under arrest and is assisted by the defense counsel). Witnesses are obliged to report to the police if summoned and they also are obliged to tell the truth under penal sanction. From this point of view, there is no difference between being questioned by police or by the prosecutor. Only when a person is caught in the act of committing a crime, the police can search persons and premises on their own initiative without a warrant, but the search, and the prospective seizure, must be validated by the prosecutor afterwards.

According to the general rule establishing that the prosecutor is directly in charge of the investigation, the police are not entitled to use special investigation methods like agents provocateurs, infiltration and undercover operations on their own initiative. As regards informers, who are commonly employed, the police are allowed to keep their names secret, although in that case the information cannot be used as evidence.
Important exceptions are established by special statutory provisions. First of all, in case of drug offences, police officers who are assigned to special groups can decide to purchase drugs in order to ascertain the offence and collect evidence, but the prosecutor shall be immediately informed of the operation. In these cases, police officers can decide to delay arrests, searches and seizures, when it is deemed necessary in order to collect important evidence and to find out the perpetrators of the offence. In these circum¬stan¬ces too, the prosecutor shall be informed within 24 hours by submitting a report. The prosecutor has the power to order the police to carry out the delayed acts immediately; or the prosecutor can set guidelines for the operation.
Other special methods of investigation can be used by the police in order to repress sexual offences against minors, but the prior approval of the prosecutor is necessary. Particularly, it is allowed to buy child pornography materials just in order to collect evidence. Moreover, the police can activate decoy websites within undercover operations in order to detect crimes related to the distribution and use of child pornography materials on the web. For the same purposes laid down with regard to the drugs offences, arrests, searches and seizures can be delayed.

The detention of a person suspected of a crime can be ordered by a judge only, at the request of the prosecutor and when there are reasonable grounds to believe that he is about to destroy evidence, to escape, or to commit others offences.
The prosecutor and the police have very limited powers with regard to the use of means of coercion. The prosecutor is entitled to arrest a person provisionally (fermo di indiziato di delitto) when there is sufficient evidence against him and there is a reasonable risk of escape. In this case too, the prosecutor must request the judge to validate the arrest within 48 hours and eventually, ask for detention of the suspect. The fermo can be ordered by the police also and under the same conditions, when the prosecutor has not yet taken over the investigation or, because of urgency it is not possible to wait for his decision.
The police have the power to arrest a person provisionally when he is caught in the act of committing a crime (arresto in flagranza). The law lays down the cases in which the arrest is compulsory (most serious offences) and those in which is discretionary (less serious offences). The discretion derives from the fact that police have to consider the dangerousness of the person, based on his personalità (character) and the circumstances of the offence. Within 24 hours, the police must report the arrest to the prosecutor and he, within the following 24 hours, must request the judge to validate the arrest.

Posts: 8054
Images: 60
Joined: Sun Jan 20, 2008 7:06 pm


Postby Michael » Tue Mar 24, 2009 11:07 pm


The Relation between the Public Prosecutor and the Minister of Justice
Chapter II
The Relation between the Public Prosecutor and the Minister of Justice
According to the system provided for by the Constitution (Sects. 104-105), public prosecutors belong to the judiciary and are independent of any other powers. They are entitled to the same guarantees of independence as judges and can thus not be removed from office. Both prosecutors and judges are classified as magistrati (judicial officers): they are selected through the same competitive examinations (Sect. 106 Constitution) and follow the same career; once appointed, they may move from one function to the other, of course only at their own request. A public prosecutor is bound only by the law and prosecution is mandatory, unless there is manifest lack of sufficient evidence in order to file an indictment (Sect. 112 Constitution).

No hierarchical organisation of prosecution offices exists at a national level and the power to prosecute is diffused and not centralised. This has been usually considered as a means of avoiding interference by the Executive and of guaranteeing the equal treatment of citizens.
The prosecutor does not depend on other organisations or bodies. He is appointed by the Consiglio Superiore della Magistratura (Higher Council of the Judiciary), the constitutional body of self-government of the judiciary, which is composed of members elected for two-thirds by the judiciary and for one-third by Parliament, and is presided over by the President of the Republic. The prosecutor can be removed only for major violations of his duties, as a result of disciplinary proceedings. No general control or direction over prosecution policy as carried out by the offices or over the manner in which the prosecutors perform their functions is exercised by any other body.
Particularly, unlike the system which was in force before the issuing of the Constitution (1947), the public prosecutor is not a representative of the Executive to the judiciary and does not exercise his functions under the direction of the Minister of Justice. The latter is thus not entitled to give either instructions or general or individual orders. The role of the Minister of Justice is strictly defined by the Constitution: he has just the power to bring a disciplinary action in front of the Higher Council of the judiciary (Sect. 107 Constitution) and has the task to organise justice and to supply the material resources for the system to work properly (Sect. 110 Constitution).
This all means that the prosecutor is subject only to the law just as the judge; therefore, the Minister of Justice is not involved in the formulation of prosecution policy and can not be questioned by the Parliament in this regard.

The General Prosecutor to the Corte di cassazione (Supreme Court), who is the highest rank prosecution officer, has no hierarchical powers over the prosecutors operating throughout the national territory (apart from discipli¬nary action, in co-ownership with the Minister of Justice). He merely has the function of representing the State at the trials before the Supreme Court, the last instance judge to which the case can be submitted for a revision, solely on grounds of violation of law; therefore, the General Prosecutor does not conduct any investigation.

In each district, the Prosecutor-General to the Court of Appeal is the chief prosecutor. His directive powers, however, are limited to supervising prosecutors and police in the district. As the General Prosecutor to the Supreme Court, he cannot give instructions concerning prosecution policy. He can only remove the case from a prosecutor of the district in order to carry out investigations and file the indictment in substitution for him, but this power can be used under the conditions specified by law only, in case of inactivity of the prosecutor concerned.
The prosecution office entitled to investigate and prosecute an offence is that attached to the tribunal (Procura della Repubblica). In each prosecution office, there is a chief prosecutor (Procuratore della Repubblica), who has the task to organise the office and to appoint a prosecutor to each proceeding, but he has no hierarchical powers. As a result, the deputy prosecutors assigned to the office (Sostituti Procuratori della Repubblica) are able to decide and act in complete autonomy and are not obliged to follow the instructions given by the chief prosecutor in individual cases.
All the deputy prosecutors within the same office, therefore, have equal powers and are placed at an equal level; they are independent of each other (what is called internal independence, as opposed to the external indepen¬dence of political authorities and prosecutors). The chief prosecutor is responsible only for directing the organisation of the office, but he cannot affect the independence of each deputy prosecutor.

In 1991 a law was enacted establishing, within the office of the General Prosecutor to the Supreme Court, the Procuratore nazionale antimafia (national prosecutor against the mafia). His task is to promote the co-operation and the exchange of information among public prosecutors and to support their investigation in most serious cases, involving mafia crimes and, more generally, organised crime. For the same crimes, a special group of prosecutors (Direzione distrettuale antimafia) assigned to the office to the tribunal which is situated in the chief town of the district is entitled to investigate and prosecute. The national prosecutor against the mafia can take the case away from the competent prosecutor, but only if the latter remains inactive or refuses to co-operate; moreover, the measure can be opposed with a claim to the Prosecutor-General to the supreme court.

At present, even though the CCP provides for a strict separation between the role of the judge and that of the prosecutor, some political parties believe that, in order to ensure the impartiality of the judge, the unity of judges and prosecutors at the organisational level reduces the equidistance of the judge and, for this reason, should not be maintained.
A bill (n. 1296, passed by the Senate on January 21, 2004) which should allow the Government to enact statutes in order to modify the organisation of the judiciary has been discussed by the Parliament. According to this bill, both prosecutor and judge would continue to be part of the judiciary, but important differences between them would be introduced with regard to the modalities of the examination in the public competition which precedes the appointment as judicial officer. Besides this, the key-points of the bill are twofold. The possibility to move from one function to another should be subjected to a qualifying examination, and should be allowed only under the condition that the applicant is assigned to an office in a different district. Hierarchical powers should be granted to the chief prosecutor over the prosecution office, with the consequence that the autonomy and indepen¬dence of the prosecutors in conducting investigations will be reduced.
Focusing particularly on this latter point, it is provided that the chief-prosecutor should be the only entitled to the penal action and, consequently, the only one responsible for it. The chief could hand out a case to a deputy prosecutor only under specific delegation. When delegating, the chief should indicate the guidelines the deputy prosecutor has to comply with in that single case: if the delegate does not follow the instructions he could be removed from the case assigned. The bill does not specify how the chief’s guidelines should be, but it is legitimate to believe that their content could be diverse, as the whole responsibility for the activity lies with the chief.
A hierarchical structure is thought to ensure a uniform conduct in pursuing crimes and in the bill therefore the main decisions are entrusted to the same person, the chief-prosecutor. This would break with the current deputy prosecutors’ internal independence of each other. By receiving mandatory guidelines from the chief, the autonomy of each prosecutor is limited in favour of the uniformity of action by the prosecution service.
The distance of the bill from the current system is evident: at present the deputy prosecutor’s are not delegated but only designated; their powers do not descend from the chief-prosecutor’s appointment, but directly from the law. They can take all decisions regarding prosecution in full autonomy and are cannot be removed by the chief prosecutor.

According to the Constitution (Sect. 112), the prosecutor is under an obligation to take action in criminal cases, whenever there is sufficient evidence to charge a person with having committed an offence. As a result, the principle of legality strictly rules and no discretion is allowed to the prosecutor, no matter how slight the offence is. Once an offence has been reported, the prosecutor has no choice on whether to start proceedings or not, nor can he suspend or withdraw the action, which must always end in a judicial decision. The legality principle does not automatically imply the monopoly of the public prosecutor, but still at present only a marginal exception is laid down. With regard to the offences tried by the justice of peace, a penal action can be brought directly by the victim, by means of a counsel.
Even though the legality principle bars discretionary powers of the prosecutor, a factual discretion exists. That is because the principle of mandatory prosecution is not cost-effective. In fact, since especially in the biggest prosecution offices, there is an overload of reports by the police and complaints lodged by private persons. Consequently, it has become impos¬sible to investigate and prosecute all offences which have been committed, because of the organisational difficulties and limited manpower resources.
In this situation, the decision making process leaves room for prosecutor’s discretion. According to the legality principle, all reported offences are registered in the official records and proceedings are formally started for each of them; but the prosecutor decides at his discretion which offences have to be promptly investigated and which – in contrast – will be dealt with only later.
The key-point here is that a limited period for prosecuting crimes (prescrizione) is provided for by the law; its length depends on the seriousness of the offence, in the sense that the higher the level of penalty fixed by the law is, the longer the limitation period lasts. It shall be underlined that the time limits laid down by the criminal code may be extended once the penal action is brought or a conviction is pronounced, but in any case the increase cannot exceed the maximum of one half of the original period. Within these limits, in order to avoid the dismissal of the charge due to the lapse of time, it is necessary that a final judgment of conviction be pronounced (i.e. a sentence against which the accused has not any more the right to appeal).
As a consequence, the prosecutor’s delay with regard to the carrying out of an investigation can result in the expiry of the period allowed for prosecuting the offence. This situation can occur both during the investigations stage, if the prosecutor does not file an indictment against the suspect within the time limits fixed by the law, and during the stages that follow (trial and appeals). Therefore, the prosecutor’s choice to investigate some offences more promptly than others can influence the whole judicial process, even if investigations end with the decision to prosecute the suspect.
During the investigation stage, if the period to prosecute an offence has expired, the prosecutor shall request the judge a leave for a dismissal. The victim shall be informed of the prosecutor’s request for a dismissal and has the power to oppose the granting of the leave. Anyway, since this power is given to the victim only in order to ask for further investigations, it is useless when the conditions to dismiss the case because of the expiry of the period are met. Under these circumstances, as a matter of fact, the carrying out of investigations and the gathering of evidence are not allowed any longer, since there is a lack of legal basis for prosecution. For the same reasons, once the period is expired, the offence could not be prosecuted by the victim himself. It follows that the victim has no remedies against the inactivity of the prosecutor, who – despite the legality principle – does not conduct an investigation or delays it.

In this sense, it can be said that the prosecutor, at least in routine cases, may often decide at his discretion which offences shall be prosecuted and which offences can be de facto disregarded. Even though a wide debate on the necessity to mitigate the principle of mandatory prosecution, or to replace it with the opportunity principle, has taken place over many years, no important modification has yet been introduced.
In judicial practice, the prosecutor offices often set general priority criteria, but these criteria are meant for internal use only, and they are seldom or never made public. Priority standards have occasionally been set by the law with regard to particular cases, but after that no other initiative aimed at the same purpose has been taken. In 2001, the Senate passed a motion which set guidelines on justice to the Government: the motion required the Government to promote the introduction of priority criteria, which should have been set by the Parliament on proposal of the Minister of Justice and of the General Prosecutor to the Supreme Court. Nevertheless, no bill has been submitted by the Executive so far.

It is difficult to say whether in practice the prosecutor’s discretionary powers are growing or being used more frequently. Anyway, it can be said that the priority criteria set by the prosecution offices are outside any control. On the one hand, because of the independence of the prosecutor, Parliament and the Executive have no power to control the prosecution policy of the offices. On the other hand, the choice of the priorities in dealing with the reported cases is not subject to judicial control.
As a result, the risk of decisions influenced by opportunity factors or by political pressures is realistic. Nevertheless, it can be said that the first stage of the decision-making process is normally based on criteria regarding the seriousness of the offences committed and the needs of the community. However, it should be noted that prosecution decisions are often based on individual policy on crime, since the criteria according to which cases are handled are determined by each prosecutor at his discretion, and there is no authority politically accountable for the policy of the prosecution service as a whole.
The introduction of the opportunity principle could be useful to reduce the workload of the prosecution offices and to rationalise the investment of time and resources. However, it must be emphasised that an unlimited discretion of the prosecutor to prosecute or not, based on political rather than technical reasons, is to be considered inconsistent with the independence of the prosecutor. In this sense, the principle of mandatory prosecution can be seen as a necessary counterbalance to the independence of the prosecutor, since a totally independent prosecutor with wide discretionary powers would be beyond control, and the power to prosecute would turn into an absolute power. In other words, the opportunity principle would request to subject the prosecutor to the hierarchical power of the Minister of Justice, who is accountable to the Parliament, but this would mean that the Executive would influence the administration of the justice directly, which is contrary to the Constitution.
The problem is to establish general and reasonable priority standards, which could work as guidelines for all prosecution offices, ensuring an effective judicial control and the equal treatment of all persons in front of the law at the same time. As seen above, it has been proposed that it should be the Parliament to lay down specific prosecution guidelines which the prosecution offices ought to follow every year. At the moment, however, this proposal seems far removed from being discussed by the Parliament and becoming law.

Once the investigation has been concluded, the prosecutor may either file an indictment or request the judge’s leave for a dismissal. The dismissal, as a consequence of the principle of legality, is based solely on technical grounds determined by the law: that is, lack of sufficient evidence and lack of legal basis for the prosecution. Moreover, the dismissal is allowed when it has not been possible to find out the author of the offence. Both the request of the prosecutor and the decision of the judge have to be motivated. Since the dismissal is always a judicial decision, it can be appealed by the victim to the Supreme Court, in case the victim has not been heard by the judge. Once dismissed, the case may be reopened with the leave of the judge on request of the prosecutor, when it is necessary to carry out new investigations.
In the juvenile courts, the case can also be dropped because the offence is not significant enough, in comparison with the potential prejudice that the further course of the proceeding may cause the minor’s educational needs. At the request of the prosecutor the case can be dismissed during the investigation stage or at the preliminary hearing, but a decision of the judge on the issue is always required, or, at the hearing, even ex officio.
A similar provision has been enacted with regard to the offences tried by the justice of peace. The decision on dismissal, to be allowed when the offence is not serious and the conduct is occasional, shall take into account the prejudice to the offender’s work, studies, family or health and can be delivered by the judge during the investigation stage on request of the prosecutor or, at trial, even ex officio, but in the latter case only if the victim does not oppose.

According to the legality principle, the prosecutor has no other choice than prosecution or dismissal. It follows that the prosecutor can not be vested with the right to settle a criminal case out of court, since every proceeding must end in a judgment.
For the same reasons, the opportunities for diversion are strictly limited, because any form of diversion implies the start of the proceedings and the prosecutor has no power to drop a case without the judge’s leave. Conse¬quently, it can be said that in the Italian system the responses to criminal offending basically consist of a formal and official process of investi¬gation, prosecution, trial and sentencing.

Some room for discretion of the prosecutor is left with regard to the cases in which the penalty can be imposed without trial: the transaction on penalty (patteggiamento) and the order to pay a fine (procedimento per decreto).
The transaction on penalty consists in an agreement between the parties on the sentence to be imposed. This form of diversion is characterised by an exchange between a sentence discount and the defendant’s waiver of the trial. In other words, by means of a sentence discount, the accused is encouraged to waive the trial, with following savings of time and expense for the system. Since the policy criteria according to which the prosecutor should give his consent are not defined by the law, the decision depends on his choice, which is not always based only on technical reasons. Anyway, it is important to underline that, once the parties have reached an agreement, the judge must verify whether there are the conditions to pronounce the requested sentence or not.
There are three prerequisites for this abbreviated proceeding: the request of one party (prosecutor or defendant), the consent of the other party, and judicial supervision. In order to reach an agreement, the initiative can be taken both by the prosecutor and the defendant. If the request is made by the defendant, it is necessary to get the consent of the prosecutor and vice versa. The request must express the will of ending the proceeding with a sentence, the contents of which has to be specified. In particular, the parties must indicate the legal basis of the offence, the aggravating and mitigating circumstances and their balancing, the type and level of penalty.

The penalty which can be asked is one of the following: a fine, a non-custodial sanction or a custodial sanction. The defendant’s request or consent can be tied to the pronouncement of a suspended sentence. In any case, the sanction is to be reduced up to a maximum of one-third as regards the applicable one, provided that the sentence does not exceed five years’ imprisonment; but, if the sentence exceeds two years’ imprisonment, the patteggiamento is not admitted for Mafia crimes and organised crime. Once the request has been made by one party, the other party must declare to accept it.
Of course, neither the prosecutor nor the defendant is bound by the other party’s request. Nevertheless, it is important to underline that the prosecutor’s dissent, unlike the defendant’s, shall be justified. In fact, if on the one hand the prosecutor has the right to prove the case at the trial, he is not entitled to deprive the accused of the sentence discount without good reasons on the other hand. It follows that at the end of the trial, if the judge considers the prosecutor’s dissent as unjustified, he is entitled to reduce the applicable penalty all the same.
In order to avoid the collapse of trial and an useless waste of time and expense, the request shall be made and the consent be given during the investigation stage or at the latest within the preliminary hearing; it can be said that the law presses the parties to reach an agreement at the earliest opportunity, as that allows the maximum savings for the system to be made.

It is important to analyse the advantages to be gained by the parties by means of the patteggiamento. With regard to the defendant, it is clear that the most important advantage is the sentence discount. In particular, this benefit consists of a substantial reduction in the length of a custodial sentence and, sometimes, in the passing of a non-custodial rather than a custodial sentence. The defendant may prefer to trade a chance of acquittal for a lower sentence than he would have been received in the event of conviction. Moreover, since in some cases the trial can be a very distressing experience, the defendant may prefer to waive his right to it and to end the proceeding during the investigation stage or at the preliminary hearing by means of a transaction with the prosecutor. Finally, the defendant can not be condemned to the compensation of damages caused by the offence and, when the sentence pronounced does not exceed two years’ imprisonment, to pay the costs of the proceeding.

With regard to the prosecutor, the advantage is the smooth running of the system by bringing speed and a reduction of the costs and resources needed to deal with the cases. It follows that the prosecutor’s decisions shall be aimed at a proper and efficient administration of justice. The decision of reaching an agreement with the defendant shall not rely on opportunity factors or on political pressures. In order to avoid this risk, it would be essential that general and reasonable criteria were established according to which the choices of a policy on crime should be made. In this way, equal treatment of all people in front of the law would be, at least partially, more guaranteed.

Once the parties have reached the agreement concerning the appropriate level of penalty, the judge must verify whether there are the conditions to pronounce the requested sentence or not. The powers of the judge are substantial.
First, he must check that, considering the evidence collected by the prosecutor during the investigation stage, there are no conditions for an acquittal. Otherwise, he is obliged to acquit the accused ex officio, notwith¬standing his request or his consent to be sentenced. It means that the agreement between the parties is not exactly like a plea bargain. In fact, the defendant is not required to plead guilty, as his request to be sentenced, or his consent to the prosecutor’s request, does not involve a guilty plea. The request or the consent implies only the waiver of the trial and of the right to have the prosecution to prove the case. In other words, because of the defendant’s choice, the fundamental principle according to which the prosecution has the burden of proof of guilt at the trial does not apply. It follows, that the sentence which imposes the penalty agreed is not a conviction, since the judge, notwithstanding his supervision of the agreement, makes a summary and incomplete assessment of the alleged offence, only on the basis of the evidence collected by the prosecutor in the course of the investigation.
Secondly, the judge must verify that the charge corresponds to the facts alleged; that the application of the aggravating and mitigating circumstances and their balancing have a legal basis; that the requested penalty does not exceed five years’ imprisonment and its level is commensurate with the seriousness of the offence.
Only if both tests are satisfied does the judge pronounce the requested sentence, otherwise, unless there are conditions for an acquittal, he rejects the request and the proceeding will continue.
If the request is granted, the penalty is imposed on the level indicated by the parties, since the judge has the power to check whether it is commensurate with the offence or not, but not to change it. When the agree¬ment is subordinated to the condition of a suspended sentence, the judge can pronounce it or reject the request.
At the end of this short analysis, it is possible to emphasise one of the fundamental issues: the risk that the prosecutor’s decision to reach an agreement with the defendant relies on opportunity rather than on technical grounds. In fact, since the decisions of policy on crime are beyond any judicial control, they could be discretionary. In other words, discretion may lie not only on the decision to prosecute or not, but also on the choice of the type of the proceeding through which the principle of mandatory prosecution is complied with.

A trial is also avoided, when the proceeding ends with the issuing of a decree which sentences the accused to pay a fine (procedimento per decreto).
There are two conditions required by law. Firstly, the offence shall be prosecuted ex officio; if it can be prosecuted only on complaint of the victim, it is required that the victim did not oppose in the complaint to the issuing of the decree. Secondly, a fine must be the penalty commensurate with the actual offence.
If the prosecutor considers these conditions met within six months since the registration of the suspect’s name in the official records, he may request the judge to issue a decree which sentences the accused to pay a fine. The request shall be motivated and shall indicate the level of penalty, which can be reduced up to one half of the minimum fixed by the law.
As in the case of transaction on penalty, the powers of the judge are substantial. First, he must check that, considering the evidence collected by the prosecutor during the investigation stage, there are not the conditions for an acquittal; otherwise, he is obliged to acquit the accused ex officio. Secondly, the judge must verify that the charge corresponds to the alleged facts; that the application of the aggravating and mitigating circumstances and their balancing has a legal basis; that the requested fine and its level are commensurate with the seriousness of the offence.
Only if both tests are satisfied does the judge pronounce the requested decree; otherwise, unless there are the conditions for an acquittal, he rejects the request and the proceedings will continue.
If the decree is issued, the penalty is imposed on the level indicated by the prosecutor, since the judge has the power to check whether it is commensurate with the offence or not, but not to change it. The decree shall contain the charge and a reasoned motivation for the decision, included those related to the penalty discount.
The decree is notified to the accused, who can ask to be tried in a public hearing according to the general rules within fifteen days; otherwise, the decree can be executed, since no right to appeal against it is granted to the accused. In this way, the waiver of the trial and of the right to have the prosecution prove his guilt is left to the choice of the defendant.
The advantages gained by the parties are similar to those explained above with regard to the transaction on penalty. The defendant is sentenced to a fine instead of to a custodial penalty, and in any case the penalty imposed is reduced. To the prosecutor, the benefits consist in the smooth running of the system by bringing speed and a reduction of the costs and resources needed to deal with the cases.
The key-point is that, as seen above in relation to the transaction on penalty, the criteria according to which the prosecutor shall decide whether to file an indictment or to request a decree are not established by the law. As a consequence, also in this case, the decision to prosecute by means of the mentioned kind of proceeding could be the result of a discretionary choice of policy, which is left to the criteria established by the single prosecutor handling the case and beyond judicial control. In any way, it must be stressed that this latter special proceeding can be brought only for minor offences.

Posts: 8054
Images: 60
Joined: Sun Jan 20, 2008 7:06 pm


Postby Michael » Tue Mar 24, 2009 11:11 pm


The Role of the Public Prosecutor in Court
Chapter III
The Role of the Public Prosecutor in Court
The charges raised by the prosecutor against the accused are screened by a single judge at the preliminary hearing in order to deem whether there is enough evidence to support the prosecution at trial. This stage can end with either the issuing by the judge of a formal indictment or the pronouncement of an acquittal (sentenza di non luogo a procedere).
If the screening of the charge is favourable to the prosecution, the formal indictment opens up the trial stage, where the charges will need to be fully proved. The burden of proof lies with the prosecution: any doubt on the defendant’s guilt will resolve in an acquittal, as the CCP explicitly affirms that guilt should be proven beyond reasonable doubt.
The trial court is usually composed of professional judges. A partial participation of lay judges occurs when the crime is brought before a particular court (Corte d’assise), which only deals with very serious offences (crimes punished with a penalty of more than 24 years of detention). This court is composed of two professionals and six lay judges.

The nature of proof required at the trial is defined by the indictment, which is issued by the judge of the preliminary hearing. The content, however, is that defined by the prosecution in the charge presented at the hearing, as the judge of this stage cannot modify the charges filed. The power of determi¬ning the offences charged lies with the prosecutor only.
Coherent with the legality principle, the prosecutor does not have any discretionary power to decide to charge the accused with a less serious offence, despite the existence of sufficient evidence to charge the suspect with a more serious crime. In such a situation the prosecutor should try the accused for the crime he has sufficient evidence for. In this regard, the prosecutor in the Italian system cannot be considered a dominus litis.
A clarification should be made here. As seen before, the principle of mandatory prosecution does not exclude the factual existence of some discretion. This discretion descends also on a multitude of possible interpretations of the law describing the illegal fact (as well as from the numerous cases the prosecutors have to handle, so that they need to define some priorities). However, this discretion in practice applies more to the preliminary stages, when charges are filed and screened, than to the trial phase. When this full jurisdictional stage in the procedure comes along, it is harder for the prosecutor to use his discretion, since it might be overruled by the judge. Therefore, once the charges are brought to trial, the prosecutor does not have any discretion in prosecuting them, neither could he dismiss the case anymore and all his moves are from now on constrained (this constraint also affects the power of varying the indictment).

The charges filed by the prosecution against the defendant, even though they are previously screened in a preliminary hearing, might still be adapted during trial within certain limits.
The trial hearings, in fact, can highlight elements of the criminal conduct which differ from the initial description of the indictment. In such case, the prosecutor may introduce amendments to the facts originally alleged.
The possibility of amending the facts charged, however, is bound by legal limits. Amendments are allowed only if they introduce a slight differ¬ence from the original facts described. In particular, the prosecutor cannot replace the fact previously alleged with another completely different. In other words, the amendments are allowed only if the change is not substantial. If a completely different fact is filed in substitution for the one charged originally, the prosecutor shall follow the rules governing the charging of an additional offence.
The defendant does not have any chance to oppose the modification decided by the prosecutor. The only right the accused can raise is that of the adjournment of the trial (for a minimum of twenty days and not more than forty) so to arrange his strategy to the modified charge. Of course, the defendant is also given the right to introduce new evidence related to the amendments made. The accused is entitled to these rights without any regard to the fact that the amendments caught him by surprise or not. The concrete element of surprise for the defendant is not taken into account by Italian law.
The prosecutor could also charge an additional offence if evidence of such crime arises during the trial proceedings. In such case, though, the prosecutor does not have a right to add new charges to the original indictment, as the defendant can oppose joining offences. Therefore, a new fact can be filed against the accused for the first time during trial only if the prosecutor so requests and the defendant explicitly consents. The presiding judge, also, plays a role in such situations since he has to authorise the new charge, in order to guarantee that the defendant’s consent is free and that the additional charge will not be prejudicial to a speedy definition of the trial. If the defendant does not consent to the new charge, or the presiding judge denies authorisation, the prosecutor will have to proceed against the illegal conduct just discovered following the normal procedure (presenting a charge to the judge of the preliminary hearing and asking him to indict the accused for that crime).
If an additional charge is filed, the accused is given the same rights he has in the case of the amendments of the charge: he can ask for an adjournment of the trial and is allowed to bring new evidence.
A much discussed topic is that on the content of the different offence, as in many cases it could be hard to draw a clear distinction with the situation of the modification of the same offence. The main opinion affirms that a new offence is that which is logically compatible with the previous one charged; while if the new charge could not be logically added to the previous one, then it is a case of variation of the same offence. However, as mentioned before, it is also common to assess that if the amended charge, despite its logical incompatibility with the original one, is substantially different from that one, the rules to be followed should be those of the charge of a new offence in a different trial.
The power of amending the indictment, and adding new charges to it, is exclusively granted to the prosecutor. This means that judges should never interfere with the decision to prosecute somebody for a certain offence. Consequently, the judge does not have any power to modify the charge. Had he been given the possibility of changing the descriptions of the facts alleged, he would substantially be allowed to play a role in the prosecuting decision, which would affect his impartiality. However, the above assumptions do not imply that the judge is irrelevant in the discipline of the modifications of the indictment: instead he plays a crucial role in controlling that the prosecutor acts within legal boundaries, as seen in the case of the charge of an additional offence.

The rules for amending the indictment and those for filing a new charge during trial are of extreme importance. In fact, the Italian system provides a specific limit to the power of the court to decide the case. The court is entitled to respond only to the facts alleged in the indictment. The accused could not be held responsible for facts different from those filed. In other words, the judge is absolutely bound by the facts described in the indictment, he can believe the defendant guilty or not, but with exclusive regards to the facts described. A rule which makes a partial exception to the above principles should be mentioned: in case the evidence collected allows the court to ascertain an illegal fact which differs from the one alleged, if the difference is not substantial, the court – other than pronouncing an acquittal – should hand the prosecutor all the records of the proceeding who will then have to start all over. This particular rule is established because if the court had the chance to acquit only, the double jeopardy principle would prohibit trying the accused again for the offence in hand.
According to the iura novit curia principle, the court is instead absolutely free to determine the juridical qualification of each fact alleged, nor is it somehow bound by the qualification given in the indictment. It is for this reason that there is no need for the prosecutor to modify the charge only for assessing a different juridical qualification of the same facts alleged.

After the preliminary questions, the trial starts with the opening speech by the prosecutor. The prosecutor presents the facts alleged and the evidence to prove the defendant’s guilt. The accused will also make a speech to present his version on the allegations filed and to introduce the evidence he will present. These introducing arguments play the function, not only to give the court a first idea of the case, but also to allow the court to admit evidence (or better, to exclude improper evidence that is irrelevant and in contrast with the law).
Once evidence is admitted, the prosecutor will again take the stand to effectively present the evidence he has brought. He decides the sequence of the presentation of the witnesses and directs the examination of his witnesses, which will then be cross-examined by the defense counsels.
Cross-examination as the ordinary way to hear testimony was intro¬duced by the 1988 CCP.
First, witnesses are examined by the party who has presented them; then, it is the other party's turn to pose questions.
As to the main rules provided for cross-examination, questions and answers should be on specific facts. Responses should be pertinent and short, the witness cannot freely tell his story, even if the courts often allow extended narrative. The questions which could be prejudicial to a genuine testimony (misleading) are not allowed and should be promptly blocked by the president of the court. Leading (suggesting) questions are prohibited only in the direct-examination, as they can be posed in the cross-examination phase.
Cross-examination might touch the general limit of respect for a person. It should be avoided on those occasions where there is a particular need to safeguard a weak witnesses, such as a child. In fact, the examination of a minor will be conducted by the president of the court, on questions raised by the parties. The eventual support of a member of the family or of an expert on children’s psychology can also be provided. Nevertheless, cross-examination might still be possible if the president of the tribunal believes that it does not affect a genuine testimony.
The president of the court may pose questions to the witness only when the parties’ examinations are over; in such case the parties will again be entitled of another examination turn with that witness.
Once the prosecution has produced all the evidence, it is the defendant’s turn to present evidence. At this stage the prosecutor will play a role in cross-examining the defense’s witnesses.
The legal order in introducing the evidence (prosecutor first, defendant goes next) can be changed on the parties’ agreement.

After the closing of evidence, the counsels open the conclusive arguments. The order of speeches puts the prosecutor in first place again, coherent with the burden of proof lying with him. The defense is permitted to reply in rebuttal and should be the last to have his speech. The parties may agree to modify the order of speeches.
In his argument the prosecutor sums up all the evidence. He describes the criminal offence he believes was committed by the defendant and the evidence that supports his hypothesis. He also recommends the juridical qualification that fits the offence and requests a specific sentence to be imposed on the accused. If the prosecutor believes that the evidence presented in the trial is not enough to assess the defendant’s guilt he can ask the judge for an acquittal.
The court, however, is not bound to any of the requests of the prosecutor. The role of the court is limited to deciding on the facts described in the indictment, as seen above.

Posts: 8054
Images: 60
Joined: Sun Jan 20, 2008 7:06 pm


Postby Michael » Tue Mar 24, 2009 11:15 pm


The Role of the Public Prosecutor in Relation to the Execution of Sanctions
Chapter IV
The Role of the Public Prosecutor in Relation to the Execution of Sanctions
In the Italian system, the sentence can be executed only when the accused does not have the right any more to appeal against the judgment, apart from collateral attacks. It means that, even if the trial ends with a conviction, the sanctions imposed by the court cannot be enforced as long as the possibility to appeal is allowed to the accused. Before the final decision, the convict can be held in pre-trial detention when there are reasonable grounds to believe that he is about to escape.

The sanctions which can be imposed by court are imprisonment and fines; according to the legality principle, the type and measure of the sanction with which each offence is punished is fixed by the law on the basis of a range consisting of a maximum and a minimum. When the custodial sanction imposed by the judge has duration up to a maximum of one year, it can be substituted by the same judge with fines and other non custodial sanctions.

With regard to the enforcement of sanctions, it is necessary to distinguish between imprisonment and fines.
The task to promote the execution of custodial sentences is given to the prosecutor by the law, who is bound to its content and, therefore, has no discretionary powers. When the legal condition to execute a custodial sentence is met, the prosecutor issues an order which provides for the imprisonment of the convict. If several convictions have been pronounced against the same person for different offences, the prosecutor determines the total amount of the custodial sanctions which have to be served according to the criteria laid down by the law. The execution order shall be notified to the convict and his defense counsel.
If the custodial sanction is not higher than three years, the order of execution is suspended in order to allow the convict to request that the custodial sanction is substituted with a non custodial one. In particular, the convict can request to be entrusted to the probation services for a period of the same length as the sentence to be served.
The request of non custodial sanctions shall be forwarded within 30 days from the notification of the order of imprisonment. Then, the competent judge has to decide whether the conditions laid down by law in order to entrust the convict to the probation services are met or not. The probation is granted if the judge is satisfied that it is such as to allow the rehabilitation of the convict and to ensure the prevention of the risk of him committing further offences.
If the request of non custodial sanctions is not forwarded, or is not granted by the judge, the suspension of the execution order is revoked.
In any case, even if the custodial sanction is not higher than three years, the execution order is not suspended by the prosecutor when the conviction regards serious crimes, or the convict is being held in custody.
The prosecutor does not play any role in the control over the penitentiary institutions; with regard to this, the powers are exercised by each prison governor.
According to the Constitution (Sects. 87 and 89) a pardon can be granted only by the President of the Republic on the initiative of the Minister of Justice.

When the accused has been sentenced to a fine, the office of the judge who imposed it will issue an order which lays down the terms that have to be fulfilled. Even in this case the office has no discretionary power in issuing the order, which shall be notified to the convict.
If the order is not fulfilled, the judge’s office requests the prosecutor to start a proceeding aimed at replacing the fine with a custodial sanction. On the request of the prosecutor, the judge, once ascertained that the convict has no economic means to pay the fine, replaces it with imprisonment. With regard to this, one day of imprisonment is equivalent to roughly € 39,-.

A suspended sentence may be pronounced only if the penalty is no higher than two years imprisonment and three years imprisonment when the convict is a minor. With the suspended sentence, the judge may impose some conditions on the convict. In particular, in favour of the victim a compensation order can be imposed or an order aimed at eliminating the damages deriving from the offence.
The task to supervise compliance with the conditions imposed is given to the prosecutor, who will request the judge to revoke the suspended sentence if these have not been fulfilled.
Since the suspended sentence is pronounced when the judge is satisfied that the convict will abstain from committing further offences, it is revoked if the convict commits an offence afterwards. It is also revoked if a conviction for a crime previously committed is passed against him, and the amount of the sanction imposed, added to that of the suspended one, exceeds the limit of two years. The request shall be forwarded to the judge by the prosecutor, and the first has no discretionary powers, therefore when the above mentioned requirements have been met, the suspended sentence must be revoked.

Posts: 8054
Images: 60
Joined: Sun Jan 20, 2008 7:06 pm

Return to Legal Context

Who is online

Users browsing this forum: CommonCrawl [Bot] and 0 guests