The Italian criminal law system
is divided into various adjudicating bodies.
Anong them, the Tribunal
acts as mono organs, except in cases of the most serious crimes, which are assigned to the Tribunal judges, who will then act as a collective organ comprises three magistrates. In the case of the Eternit trial, the judges are Giuseppe Casalbore
(picture), Fabrizia Pironti and Alessandro Santangelo.
The Court of Appeals reviews the decision of the Tribunal. The Court of Appeals has the same number of judges as the Tribunal (three judges).
The Italian criminal law system provides for laymen judges, i.e. citizens who are not part of the judiciary but who are called upon to carry out judicial activities by deciding on the guilt or innocence of offenders of the most serious types of crimes. They act in the Court of Assizes and in the Court of Appeal of the Assizes, while they are not allowed in the other courts, i.e. the magistrates’ courts, the Tribunals and the Court of Cassation.
The highest appellate Court in Italy is the Court of Cassation. The role of the judges of this Court is limited to reviewing the decisions of an inferior court on points of law. The Court cannot therefore judge on the merit of the sentence. Nevertheless, it has often been argued that one of the reasons for which the sentences are brought before the Court of Cassation is the illogical reasoning of the judge when giving the motivation for the decision. Recently, even the President of the Court of Cassation criticised such attitude, and recommended that his colleagues avoid repeating this overlap between judging on the facts and judging on points of law.
It should be noted that the Court of Cassation does not only has the competence to evaluate whether the correct procedures were used, but also whether the criminal provisions were correctly applied when making the decisions. In fact, the Court of Cassation has the extremely important function of providing a uniform and homogeneous interpretation of the law. This does not mean, however, that its decisions can be used as a precedent for other cases. Since the Italian legal system does not use common law, the single judge must, when interpreting a law, decide on the objective meaning of that law. However, de facto, the decisions of the Court of Cassation do in some way influence the decisions of judges on similar cases. This is because a future decision that might be contrary to a law that has been considered uniform and constant by the Court of Cassation would have a high likelihood of being annulled by the Court.
Paragraph 2, Article 24 of the Constitution establishes that the right to defence is an inviolable right at every stage of the criminal proceedings
. The Constitution also states, in paragraph 3 of the same Article, that suspects without the means to pay for a defence lawyer should be provided with proper means to defend themselves at all levels of Jurisdiction. Thinking about the Eternit defendants, this is not the case, I guess.
In compliance with these provisions of the Constitution, the Criminal Procedure Code regulates this right to defence during all the phases of the criminal procedure, as well as the role of the defence counsel and its powers. It establishes that the person who has been indicted or is under investigation can name up to two defence lawyers. If, for some reason, the defendants do not name two lawyers, a defence counsel is appointed by the Court from among those appearing on a list prepared by the Bar Association ("Consiglio all'Ordine degli Avvocati").
The defence must be present during the preliminary phase to make sure that the public prosecutor works in compliance with the law.
The defence counsel must always be informed before the person being investigated is questioned so that he/she can be present. In the case of searches, there are some exceptions to this rule when there are reasons to believe that traces of an offence or other physical evidence could be altered. The defence lawyer has the right to examine and keep a copy of the measures ordered by the public prosecutor and by the judicial police, and can also be present during searches and investigations. He/she can send memoranda and request to the public prosecutor.
As far as preventive custody is concerned, the police responsible for this is obliged to inform the suspect that he/she has the right to appoint a lawyer and then to immediately inform the appointed lawyer. The latter can intervene during the hearing of the person placed under preventive custody, which has to be carried out by the judge for preliminary investigations within five days after the commencement of custody.
As far as the persons who cannot pay for their defence are concerned, although Article 34, paragraph 3 of the Constitution guarantees them the means to defend themselves, it was believed by many that the law in force since the 1930s did not adequately protect this right for those people in difficult economic conditions. In order to overcome this problem, in 1990 Law 217 redefined the entire matter. Those earning less than a given amount (10 million of Italian liras in 1990 and adjusted annually according to the official inflation indices) are entitled, upon the presentation of a written request to appoint a lawyer of their choice who will be paid by the State.
In order to act in the legal profession, a lawyer must be a member of the Bar Association. It is possible to become a member of this Association after having worked for two years in a law firm and having passed a specific examination. Once this exam has been passed, a lawyer can appear on the Rolls and can practice law for any type of civil, penal or administrative case. However, before being admitted to work at the Court of Cassation, the defence lawyer must have worked at the magistrates’ courts for a certain number of years.
The Italian criminal law system gives great importance to the victim
. The victim is identified as the possessor of the interest protected by the penal provision that has been violated and, as such, must be distinguished from the person who has physically been harmed, although this is often one and the same person. While the injured party has been damaged by the commission of the offence, the victim (i.e. the offended or passive person) is the owner of the good protected by the law. It is obvious that a person can be the damaged party but at the same time not be the offended one (the passive person): a classical example of this case is murder, where the relatives of the person killed are damaged persons but certainly not offended persons.
The distinction between these two figures is a very important one since the Italian Criminal Procedure Code gives the person offended by the act a series of rights and a greater power to intervene during the criminal process than to the simply damaged person. While both persons have the right to nominate lawyers, to appear as civil plaintiffs in the trial, to collaborate with the public prosecutor in ascertaining the responsibility of the offender so as to be able to claim compensation for damage, as well as to challenge a court decision, the victim alone is assigned an important role during the preliminary investigation phase. The victim can request the public prosecutor to carry out a preliminary hearing in which he/she can also participate. The victim can present memoranda and indicate elements of proof. He/she is informed about the request to close the investigations and can oppose this request, and finally, he/she is informed about the order to fix a preliminary hearing.
The injured parties can also decide to claim compensation for damage before a civil court only. In this case, if they had not acted as civil plaintiffs during the criminal proceedings, a possible acquittal in the criminal use is not effective in their civil case.
Some crimes can only be prosecuted following a request by the victim. Such a request is called a "querela": It is a private complaint with request for prosecution and has to be placed within ninety days from the commission of the offence. The "querela" is a prerequisite for the criminal proceedings to be instructed and is generally envisaged for minor offences, while serious offences are prosecutable ex officio.
Those that are injured by the commission of an offence have the right to compensation for the damage caused by the person responsible for the act. This right can be applied for both civil and criminal offences. In general, no form of monetary compensation from the society at large is envisaged. The only person who is obliged to compensate the damage is the offender and not the State.
This law has only recently undergone some changes. Law 108 of 1996, which has radically reformed the previous Code with respect to usury, has envisaged that the victim of this criminal activity should receive an indemnity from the State as a form of compensation for the damage. This provision was approved after much criticism and debate because there was a risk that some people might make false accusations for material gain. In order to avoid this possibility, State compensation can only be given when the persons accused of usury are indicted.
It was proposed that the State compensation scheme be extended to numerous other unlawful activities. However, this would be difficult because of Italy's current financial crisis - something that is being experienced by all the Western countries. Furthermore, reservations were expressed regarding this proposal in the light of the recent attempts to widen the use of compensation for damage as a sanction for the less serious forms of crime. This would mean that criminal law would focus less on limiting personal liberty as a sanction, and more on re-establishing a relationship between the victim and the offender based on the offender's social rehabilitation and the victim's right to compensation for the damage incurred.
freely re-edited excerpts of "Criminal Justice Systems in Europe and North America: ITALY
", by Adelmo Manna and Enrico Infante, Helsinki, 2000