Italy - Criminal procedural law: Structure of criminal proceedings and Courts

Italian Criminal Courts are divided in Judge of the fact (law and fact) and the Supreme Court, that decides only about the respect of legislation.   First degree Courts are Assize Courts, Tribunals, Judges of the Peace: Assize Courts are involved of very serious offences, such as voluntary manslaughter, massacres, enslavement, trafficking in persons and others punishable by life imprisonment. Tribunals are composed in Preliminary investigation Judge, Preliminary hearing Judge and single or collegial Tribunal. The Judge of the Peace decides on minor offences and, unlike other judges, does not impose custodial sentences, but only substitution penalties or fines.   Eventually, there are some special Courts, which decide on offences committed by minors and others those serving military personnel: Tribunal for Minors (not of Minors) and Military Tribunals.

Italian Criminal Courts are divided in Judge of the fact (law and fact) and the Supreme Court, that decides only about the respect of legislation.

First degree Courts are Assize Courts, Tribunals, Judges of the Peace:

• Assize Courts are involved of very serious offences, such as voluntary manslaughter, massacres, enslavement, trafficking in persons and others punishable by life imprisonment.
• Tribunals are composed in Preliminary investigation Judge, Preliminary hearing Judge and single or collegial Tribunal.
• The Judge of the Peace decides on minor offences and, unlike other judges, does not impose custodial sentences, but only substitution penalties or fines.

Eventually, there are some special Courts, which decide on offences committed by minors and others those serving military personnel: Tribunal for Minors (not of Minors) and Military Tribunals.

Investigations:

A party's request is called a "querela" and must be filed within three months of the discovery of the criminal fact.

The most serious offences do not require a complaint, but can be prosecuted directly by the Prosecutor's office.

It is not necessary a lawyer to start a criminal action, but he is very useful to manage it, from preliminary investigations, because, for example the lawyer in Italy from 1989 is able to investigate by defensive investigations.

The time limit for the Public Prosecutor to carry out preliminary investigations is six months or one year in the case of more serious offences, time which may be extended to two years and three months by order of the Judge.

At the end, the Public Prosecutor must formally charge of one or more offences, serve a notice of conclusion of the investigation and make available his entire file.

In twenty days the person investigated (he is not yet defendant) may produce a defense statement, propose new topics of investigation or ask to be interviewed.

It is compulsory the interrogation of the suspect who requests it and to complete new investigations (not compulsory) and questioning within thirty days, on pain of the acts being unusable.

Preliminary Investigation Judge:

The Judge for Preliminary Investigations supervises the entire investigation phase; he applies, at the request of the Public Prosecutor, any precautionary measures (personal or real) and regulates the duration of the investigation.

The Preliminary Hearing Judge, on the other hand, is in charge of the Public Prosecutor's request for committal to trial for offences for which a preliminary hearing is required (some offences require a preliminary hearing, but are not so serious as to be decided by a panel of judges).

This Judge at the end of the hearing decides if the defendant is not guilty or if it is necessary a public trial.

Trial Judge:

Eight days before the first hearing (last deadline) parts may deposit a list with witness and advisories data and at the beginning of the first hearing there is the discussion about participation in the trial and the request of every evidence.

The whole process is conducted orally (every word is recorded and transcribed), but documents may be filed.

At the end of the evidence, the parties conclude with oral argument, although there is provision for depositing defence statements at every stage of the proceeding.

The Judgment:

There is a standard time for depositing the judgment (15 days), but the Judge can declare a shorter or a longer term to file the grounds for the judgment (from immediately deposit until 90 days). It happens when read her/his decision, at the end of the council chamber, immediately after the discussion.

Parts are allowed to propose the appeal (to the court of appeal or the supreme court) in a variably term (from 15 to 45 days); this time limit varies in proportion to the time limit for filing the reasons (standard time is 30 days).

Special proceedings:

There is a last deadline to propose special proceedings and it is before the beginning of the discussion in front of the Preliminary Hearing Judge (when the preliminary hearing is provided) and at the beginning of the first hearing when the trial arrives directly at the trial Judge.

• The so-called 'plea bargain' (patteggiamento), in which the defendant and the public prosecutor agree on the measure of the sentence,
• the 'abbreviated trial' (rito abbreviato), in which only the evidences already in the case file are discussed,
• the 'probation' (messa alla prova), in which the defendant replaces the prison sentence with socially useful works.

Eventually the Prosecutor can ask to the Preliminary Judge a Criminal Decree of Conviction, with the possibility in a short time for the convicted of requesting trial or special proceedings (15 days).

Precautionary Measures (personal or real):

Precautionary measures are applied by the Judge, at the request of the Prosecutor, when there are serious indications of guilt and under the following conditions:

- danger to the genuineness of the evidence

- danger of escape

- danger of repetition of the offence

- danger of aggravation of the damage caused by the offence

The personal measures vary from imprisonment to the obligation to sign in front of the police at regular intervals, with some particular measures for family or sexual offences consisting in the removal from the family home or the prohibition to approach the places frequented by the offended person.

Seizures can be probative, conservative or preventive: conservative seizures aim at protecting credit claims and preventive seizures at avoiding the aggravation of the damage caused by the crime.

Court of Appeal and Supreme Court

The competence for appeal is of the Court of Appeal, that can revise a part of all the decision of Judge of first instance and can examine the facts of the crime and every violation of the law.

Supreme Court (Corte di Cassazione), instead, may be involved only for violations of the law and just at some conditions.

In fact, a large number of cases are declared inadmissible because they do not comply with the very strict rules for appealing to the Supreme Court.

Enforcement and Surveillance Judges:

When a criminal judgment or decree of conviction has become non-appealable, there may be cases in which the enforcement Judge, who issued the judgment, is called upon to decide.

For example, when two sentences have been handed down for the same offence (ne bis in idem principle), or when some facts are connected and committed in the same period of time and therefore the continuation should be applied with a small increase in the penalty compared to the penalty applied for the most serious offence.

Or when a penalty has to be declared extinct due to the passage of time or because the fact is no longer provided for by law as an offence.

The Surveillance Judge is called upon to assess the possibility of probation, home detention, the rescheduling of the financial penalty, semi-freedom (part of the time in prison and part outside prison to work or study), licences and permits or early release (in the event of good conduct during imprisonment).

From Marco VIANELLO Criminal Lawyer in Italy