Viktor Bérces: Evidence in Criminal Proceedings
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6.3. The Italian model

6.3. The Italian model

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Under the Italian Code of Criminal Procedure (Codice di Procedura Penale, hereinafter: CPP), the timeinterval in which the investigative phase (indigani preliminari) takes place:

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  • starting date: when the polizia giudiziara (judicial investigators) or the prosecutor’s office becomes aware that a crime has been committed;
  • final date: when the prosecutor brings charges or the court, on the prosecutor’s motion, decides to close the investigation.
 

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Among the subjects of the procedure, the prosecutor should be highlighted, who, as the “master of the investigation”, conducts the investigation in its entirety, regardless of the type of case, and has control over the procedural acts carried out by the judicial investigators (Article 327). The other important public authority is the investigating judge (giudice per le indagini preliminari), who hears applications for preliminary investigation from the prosecution, victims and private parties; one of his most important powers is to decide whether to order a person to be remanded in custody (Article 279).

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A speciality of the Italian investigative profession is the so-called evidence preservation procedure (incidente probatorio): the aim is to record and preserve evidence in advance so that it is available at trial, complete and intact. The procedure is presided over by the investigating judge, who may, on the motion of the prosecutor or the defence, order, for example, the preliminary hearing of the accused1 or witnesses,2 the seizure of evidence, etc. (Article 392; Article 399).3 The proceedings take place in camera (a porte chiuse), in which the prosecutor and the accused are required to attend and the victim’s legal representative has the right to participate (Article 401). The taking of evidence is similar to a trial: for example, the witnesses are first questioned by the prosecutor or defence counsel who requested the preliminary hearing, and only then can the other party be questioned. At this stage of the proceedings, the judge may not, ex officio, carry out any evidentiary acts not specified in the motion.4

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The main stage of proof is the court hearing: all evidence must be presented – again – and examined by the court, based on the principles of impartiality and adversarial procedure. The law specifically emphasises the principle of party-driven proceedings, which requires that the evidence be led by the parties (e.g. by direct examination of witnesses).5 However, the law broadly excludes the admissibility of hearsay evidence.6

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It should be noted that the Italian law can be seen as a source of concern in several respects:

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  1. As regards the right of presence of the accused, the Italian authorities have in several cases failed to take the necessary steps to ascertain the address of the persons being prosecuted when the accused is abroad. The Court of Justice has therefore repeatedly condemned the Italian State when 7
    • its authorities made only a few unsuccessful attempts to locate the whereabouts of the suspect;8
    • after the German national applicant was summoned once and returned with a “not wanted” sign, no attempt was made to summon him again, but the judgment was given in his absence.9
  2. With regard to the postal service of documents, the Italian courts were satisfied in one case that the return receipt had been returned to them, but despite the applicant’s claim from the beginning of his arrest that he had no idea that any proceedings were being brought against him and that the signature on the return receipt was not his, the courts did not appoint a handwriting expert to clarify the matter, despite his repeated requests.10
  3. As regards the right to use the mother tongue, the Court also found a breach of the Convention when
    • the applicant, a German national, was not informed in his mother tongue of the charges against him;11
    • the applicant, who speaks Arabic and French, was informed by the authorities that he could attend the appeal hearing only in Italian, but it was not clear what he understood.12
 

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In some respects, the Italian model also has some of the characteristics of the American system: if the accused admits to the crime in a case before a jury, the court, with the consent of the parties, will decide the case without a trial in chief, acting as a single judge, in complete seclusion from the public, and on the basis of the case file only. In such simplified trials (giudizio abbrevatio), the length of the sentence can be as much as one third of the average sentence and the accused is also exempted from paying the criminal costs.13
1 It is used when it is necessary for the accused to testify about the role of other persons involved in the commission of the offence, or when it is necessary to question the accused in another proceeding related to the main proceedings (Article 210).
2 This is done when there is a fear that (1) the witness may not be heard at the trial (e.g. because of illness) or (2) the witness could be coerced into silence or perjury by force, threat or corruption.
3 A maximum of 10 days may elapse between the issuance of the order granting the motion and the hearing.
4 Herke (2014) ibid. 62–64.
5 The Italian negotiation system is thus clearly converging towards the Anglo-Saxon model. Nevertheless, the Italian Constitutional Court has subsequently noted that the courts must be granted the right to make investigative and other material part of the proceedings by reading it out. In Ákos Farkas. Fundamentum, 2002/2. 55.
6 K. Bárd: Systems of evidence and the establishment of the truth in criminal cases ibid. 33.
7 for infringement of the right to a fair trial
8 Colozza v. Italy judgment of 12 February 1985, Series A no. 89. In: Grád–Weller (2011) ibid. 363.
9 Brozicek v. Italy judgment of 19 December 1989, Series A no. 167. In: Grád–Weller ibid. 363.
10 Somogyi v. Italy judgment of 18 May 2004, no. 67972/01. In: Grád–Weller ibid. 364.
11 Colozza v. Italy judgment of 12 February 1985, Series A no. 89. In: Grád–Weller ibid. 363.
12 Hermi v. Italy judgment of 28 June 2005, no. 18114/02. In: Grád–Weller ibid. 366.
13 Manfred Maiwald, – Alessandra Ippoliti: A new Code of Criminal Procedure for Italy. Law Journal 1989. 44/19. 874–878. In: Farkas (2010) ibid. 30.
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