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Tuesday, June 28, 2005

Italian Criminal Justice

This is an effort to explain the Italian judiciary and, in particular, the Italian criminal justice system to people who don't read Italian (better if they don't care too much about English spelling). I am ignorant and writing from memory so caveat lector. I will focus on how the Italian system is different from the US system (but I don't know too much about that either). My Italian spelling is not reliable (extraordinary in Italy) and my guesses as to the genders of words is approximately random.

The small part of this that is relevant to the 13 unfortuate CIA agents who will have to vaction somewhere else on the public dollar is here.

The point is that, in Italy, the judiciary is really genuinely independent.

There is a key figure in the Italian crimminal justice system which does not correspond to anyone in the US system the "sostituto procuratore" (SP) usually translated prosecutor. This is probably the best translation, but it elides a large number of crucial differences. Most importantly the SP is a magistrate and, thus, part of the judiciary not the executive. The Italian consitution makes it very clear that magistrates including SPs are totally independent from elected officials.

Another difference is that the SP becomes involved in crimminal investigations at a much earlier stage than is normal for prosecutors in English speaking countries. To a great extent, the police work under the supervision of magistrates. My understanding (based on "Law and Order" I confess) is that, in English speaking countries, the police investigate on their own until they reach a conclusion which they present to prosecutors who decide whether to seak charges or not. In Italy, long investigations are joint SP, police investigations with many police officers working under direct orders from the SPs (anyone who reads Simenon will recognise the system).

One way to think of this is that in Italy it is as if there were always tens of thousands of grand juries empanelled and prosecutors had the power and flexibility and ability to take the initiative that a grand jury gives US attornies. This analogy is, of course, imperfect. The main difference is that the Italian analog of a grand jury the "giudice degl'indagine perliminari" or GIP is harder to lead around by his or her nose. That is, the Italian analog of a grand jury is another magistrate who knows the law and doesn't automatically do whatever the SP requests. Permission of the GIP is required for phone taps and wire taps. Search and seisure can be authorised directly by the SP.

Like a grand jury, the GIP has to decide whether to rinviare a giudizio (indict) suspects. This is a necessary step for all prosecution in Italy. The GIP becomes a giudice dell'udienza perliminaria (GUP) and, after a hearing which is usually brief, decides is there is enough evidence for a trial.

The Italian system is actually pretty new, that is the current system is the result of a recent reform finalised in the early 90s. Unfortunately that is not recent enough for me to have been able to read Italian at the time. I just remember that the reform was universally called the "Perry Mason" and that the idea was to increase the importance of the trial compared to the pre trial investigation. Previously the analog of the SP was called a "giudice istruttore". My understanding is that, in the actual trial, the giudice istruttore was not treated as the equal of the defence attornies but more as a trial judge. The idea of the reform was to make the prosecution and the defence equal in front of judges who were separate from both (third or terzo). As far as I can tell, the reform changed form more than substance and further reform is the subject of furious debate. In particular, in the current system, the same person often switches back and forth from prosecutor to judge to prosecutor in his or her career. Defence attornies are unanimous in the view that judges treat prosecutors as colleagues (which they do) and not as equals of defence attornies. The current majority strongly supports defendants rights because they support the current Prime Minister, silvio berlusconi, who has been more or less continuously on trial for his many blatant crimes for almost a decade.

OK enough polemic. The next step in the long long road to a final verdict is the "processo di primo grado" (first level trial). Depending on the severity of the accusation, there may or may not be a jury. For relatively minor crimes, the verdict is decided by a panel of three judges, for extremely serious crimes there is a jury mostly made up of ordinary people although a magistrate is present in the jury room for the reason explained immediately below. In either case it is required (by the constitution) that the reasoning behind the verdict be explained in the "motivazione della sentenza" (explanaiton fo the verdict). A strange feature of the system is that, if the verdict is reached by a jury, a magistrate must explain their reasoning.

This is just the first trial. Both the defence and the prosecution can appeal the sentence if they wish. It is not necessary to claim that there were any procedural errors in the first trial to obtain a second trial. Even for relatively minor crimes, there is a jury of ordinary people at the second trial.

After two convictions, in theory, the defendant no longer has the right to argue the facts of the case. The final appeal to the corte suprema di cassazione (highest criminal court which is really many courts because it is divided into many sections) requires procedural grounds. However, "absence of illogicalness of the explanation of the sentence" is a legitimate procedural ground. This means that, in effect the cassazione regularly reconsiders the merits of cases.

One other twist. In Italy civil suits related to criminal trials are merged with the trial. Aggrieved parties can make themselves "parte civile" and have lawyers representing them and advancing their claims for damages in the same procedure as the criminal trial.

The reader will notice that the whole procedure is likely to be highly time consuming. Italian journalists (trying to find something nice to say) stressed the amazing speed of the O.J. Simpson trial. Actually the incredible slowness of Italian trials is also caused by the fact that hearings are intermittent as the judges are following many cases at the same time. Also the main activity of Italian defence attornies seems to me to be to seek delay. Until the cassazione has spoken, the accused is officially to be considered innocent.

The citizens are safe however, since pretrial detention is relatively easy for people accused of violent crimes. This (along with sentences which are a small fraction of the ferocious US sentences) means that most people in Italian prisons are presumed innocent. For less serious crimes such as corruption etc, the defendants can not be locked up without a conviction for a significant period of time. Therefore, they are free and presumed innocent even after they have been tried and convicted once or twice.

Finally the key to the functioning of the whole system is prescrizione (the statute of limitations). This cancels all crimes alleged to have been committed N years in the past where N is a function of the sentence for the crime (I think roughly twice the theoretical sentence). Given the slowness of the system and the numerous options for delay, it is generally possible for someone whose corruption is beyond doubt to obtain prescrizione. For example there is a still current finding of fact that the current Prime Minister silvio berlusconi bribed then Prime Minister Bettino Craxi. Berlusconi was convicted in primo grado then the appeal was not held because the statute of limitations had run out. Berlusconi could waive the statute of limiations and seak to clear his name, but since the proof of his guilt is overwhelming he hasn't chosen to do so.

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