Defendants' rights in Italian criminal proceedings: who has the right to defence?
The defendant's rights to defence in Italy are inviolable. They are guaranteed by the Italian Constitution.
Everybody has right to defence, but, in order to be able to exercise this right, it is of fundamental importance to know the defendant's rights and obligations as provided by law.
The regulatory and procedural framework of the Italian system is quite complicated, this is why it is necessary to understand clearly what are the procedural steps, which rights are guaranteed by law, and under which rules they can be exercised.
Indeed, it must be specified first of all that in Italy, criminal proceedings can be initiated by the police or by a Public Prosecutor, whenever a potential crime comes to their attention.
At the end of the investigations the Public Prosecutor can decide whether to close the case or bring it to court, seeking an indictment against the person to whom the crime is attributed.
In case of serious crimes, the indictment is transmitted to the Preliminary Hearing Judge. After the preliminary hearing the Judge can decide whether to bring the case to Court or to end the legal action, closing the case.
In case of less serious crimes, or in case of cases falling within the jurisdiction of the Justices of the Peace, the Public Prosecutor will directly summon the defendant before the Court, skipping the preliminary hearing.
In Italy, there are three degrees of criminal justice:
- First degree, where the evidence is collected and the first judgement (which can either be an acquittal judgement or a conviction sentence) is delivered;
- Appeal before the Appeal Court, lodged either by the Public Prosecutor (in case of acquittal judgement) or by the defendant (in case of conviction sentence). The Court of Appeal can decide to set aside or alter the first judgement;
- Court of Cassation. This is the highest degree of judgement, where the Court of Cassation must give decision on the appeals promoted against the Appeal Court's judgements. It is worth noticing that the court of Cassation cannot make decisions on the substance, while it can only make a decision on the legitimacy of the case. The Court of Cassation can confirm the second degree judgement, referring the case back to the Appeal Court.
After a case has been judged through all three degrees of criminal justice, the judgement becomes final. In case of conviction sentence, it becomes enforceable and thus it has to be served.
It is also worth noticing that apart from the above mentioned first judgement in Italy there exist also other special procedures, such as:
- Abbreviated criminal trial procedure;
- Out-of-Court settlements;
- Briefest course of judgement;
- Proceedings for penalty order.
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What are the defendants' rights in Italian criminal proceedings?
The defendant's rights in Italian criminal law cover every step of criminal procedure, ss well as of criminal proceedings. They can be described as follows:
Right to gathering exculpatory evidence: given that the police has to carry out the investigations (such as inspections and searches) authorized by the Public prosecutor, it is worth remembering that during preliminary investigations the suspected person has the right to gather exculpatory evidence.
For body searches (to be carried out ensuring full respect for human dignity) the assistance of a trustworthy person can be required, provided that he/she is readily available. In case a mandate of inspection or sequestration is issued, the police has to give a copy of the search/sequestration report to the suspected person, and to inform the latter that he/she has the right to be assisted by a lawyer.
In case the sequestered items are useful for investigative and evidentiary purposes, the suspected person, by means of his/her lawyer, can lodge either a petition for the release of the same items or an application for review before the Review Court, within 10 days after the notification of the seizure order.
Interrogatory: during preliminary investigation the suspected person can be questioned by the police. During interrogatories the presence of the suspected person's lawyer is mandatory. The suspected person has the right to be informed of charges and evidence against him/her, and is free to decide whether to answer or not the questions from the police.
The defendant in a criminal case has no obligation to tell the truth, so that, even though he/she lies, he/she cannot be held liable for perjury.
Arrest, provisional detention, preventive custody, and European arrest warrant: the Judge for Preliminary Investigations can order preventive detention in prison, either in case there is clear inculpatory evidence against the accused person, or in case the accused person is at risk of tampering with evidence, obstruction of justice, reiteration of crime, or absconding.
Immediately after the arrest, the Police has to inform the arrested person of his/her right to appoint a lawyer. In case he/she appoints no lawyer, a legal-aid lawyer will be appointed.
In case of preventive custody in prison, the Judge has to interrogate the arrested person within 5 days following the arrest (custodial interrogation).
Foreigners who don't speak Italian have the right to interpretation and to translation of documents.
Interpreting assistance is free and it has to be guaranteed even during the talks between the suspected person and his/her lawyer in prison.
Defendants' rights in the Italian criminal trial
Criminal trials in Italy are carried out before the Court with jurisdiction over the matter and the territory concerned. Usually jurisdiction is vested in the Courts of the place where the crime was committed.
Criminal proceedings in Italy are public, except for particularly sensitive trials, which can be closed to the public by Court decision.
Defendants have the following rights in Italian criminal proceedings:
- The suspect is not required to attend the trial, except for certain acts, such as the identification of the accused person by a witness;
- Defendants who don't speak Italian have the right to be assisted by an interpreter;
- Defendants have the right to be assisted by a lawyer. Assistance by a lawyer is mandatory by law in criminal proceedings. In case the defendant appoints no lawyer, a legal-aid lawyer will be appointed.
- In case of lack of money, defendants in Italy are entitled to legal aid, as far as permitted by law;
- Defendants have the right to make voluntary statements at every time during the trial;
- Defendants have the right to answer questions during an examination, as well as the right to silence;
- The defendant's lawyer can request the Judge to admit exculpatory evidence and ask questions to prosecution witnesses.
Defendants' rights in Italian criminal proceedings: how can Arnone&Sicomo Law Firm support you?
Arnone&Sicomo Law Firm provides assistance in criminal matters to any person accused of a crime, as well as to victims of crime. Our criminal defence attorneys provide professional assistance to all parties in criminal proceedings, offering you the best possible advices, in order to achieve the best possible outcomes.
By means of special Powers of Attorneys, our criminal defence attorneys can bring a civil action in the criminal proceedings in order to seek compensation for the damage suffered by the victims of a crime.
We help (foreign) detainees to keep in touch with their relatives.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.