This is the second in a series containing legal advice about problems readers may encounter during their stay in Italy
On 26 March 2013 the Italian lawyer representing the family of the murdered British student Meredith Kercher said that the ruling scrapping the acquittals of Amanda Knox and Raffaele Sollecito will help get to the “final, definitive truth” about the case.
In an Italian criminal trial it is the public prosecutor (pubblico ministero – often abbreviated to PM) who is tasked with looking for the truth. Public prosecutors are selected from the rank of magistrate and are appointed by the ministry of justice. In order to become a magistrate, a fully-qualified lawyer (avvocato) has to complete successfully a course in public hearings and gain two years of experience. In Italy the public prosecutor carries out the first phase of the process, the preliminary investigation (indagine preliminari), which can take up to six months, on the suspect (indagato). The prosecutor has to gather not only evidence that can lead to conviction but also evidence which could lead to an acquittal. If there is insufficient evidence, the charges must be dropped. In theory this seems perfect; in practice, however, a single prosecutor may be bogged down with an excessive number of criminal cases (often between 1,000 and 1,200) which does not allow time to carry out activity in favour of the suspect. If there is sufficient evidence, a preliminary hearing (udienza preliminare), which can take up to three years, takes place and the judge either decides “no grounds to proceed” (non luogo a procedere) or issues an indictment (rinvio al giudizio). If indicted, the suspect becomes the accused (imputato).
Only at this stage does the actual trial (dibattimento) begin, and can last another two to three years. In Italy no suspect may be detained during a preliminary investigation unless there is proof (fumus commissi deliti) that he or she committed a crime. The public prosecutor also has to request a judge to rule on the relevant precautionary measures to prevent the person from committing another crime (eg. murder). A suspect may be placed under provisional arrest or house arrest or be issued with a restraining order but if there is no concrete proof of involvement he or she will not be detained.
The accused has the right to defence (diffensore di fiducia), a private legal representative hired at the expense of the accused, and has the right under the law to embark upon defensive action with the assistance of advisers and forensic or other experts at his or her own expense.
With regard to the cost of a trial, Italian criminal trials create a rift between those who can afford a qualified criminal defence and those who have to make do with inadequate representation or turn to state legal aid (diffensore di ufficio). Those with financial means fight through their lawyers and consultants in the courts of law and often get away with it due to the timelapse from when the crime was committed. Article 111 of the constitution sanctions the principle of “reasonable duration of trial” (ragionevole durata del processo), and time frames are laid down for each crime and its severity. For example, for theft the time from when the crime was allegedly committed to when the final sentence is passed may not exceed seven and a half years, while for murder the period is 30 years. The defendant can be called to the stand, but has the right to refuse to bear testimony, or may refuse to answer any questions at all. Unlike in many other countries, defendants do not take an oath since they are not technically witnesses and can therefore lie without committing perjury.
Other parties to the proceedings are those who have been offended by the crime and have suffered damage for which they demand recognition in criminal proceedings.
The judge is tasked with assessing only the evidence presented in court, reaching a decision on the case and passing the appropriate sentence. In Italy nobody is tried by a jury of peers; the defendant is judged by a professional judge or by a panel of judges (a panel of three, five or nine). The only exception to the use of professional judges is in the assize court (corte d’assise) which tries cases of serious crime such as murder, terrorism or kidnapping. This court is made up of eight judges: two professional and six lay judges (giudici popolari ). Lay judges are selected from a municipal (comune) based lists of volunteers, which are revised every two years. People eligible to volunteer have to be Italian citizens between the age of 30- 65 with a clean legal record, of a moral character and with a minimum of a junior high-school education (licenza media ). Lay judges are paid between €28.82 and €51.65 a day dependent on their employment status, and are fined if they do not appear to fulfill their duties without reasonable excuse.
The decision of the assize court may be revised by the appeal court (corte d’assise d’appello). If the case is still not concluded at this level it passes on to the court of cassation (corte di cassazione) for final sentencing.
One of the benefits of the Italian trial process is that the appeal court reviews both facts and findings of the law for those wanting to prove their innocence. In adversarial systems, such as in the United States, trials can only be appealed on narrow questions of the law, not on fact, and claims of innocence are not considered constitutional questions. As in the Knox trial for the murder of Meredith Kercher, the criminal trial is not the last chance to provide or contest evidence against the accused. The case is not over, as it may have been in the American adversarial system.
In conclusion, we can say that the Italian penal process is a complicated machine that has many levers and requires attorneys who are specialised in criminal proceedings to operate it. It is a common saying in Italy that injustice “is around every corner” (which is too close for comfort); no wonder a legalist here in Italy defined the penal process as “la grande giostra l dolore” (“the great roundabout of pain”).
Studio Legale Annino
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