Participatory Rights in Italian Criminal Justice and the Developments Towards a contradictoire-Based Model of Criminal Proceedings

Abstract

A close examination of the Italian criminal justice reveals that significant changes took place in the understanding of criminal proceedings over the last few decades. At the time of the enactment of the current code of criminal procedure (1988), criminal justice in Italy was still governed by the 1930 code, albeit largely amended. The so-called ‘Rocco-code’ maintained some of the main features of the original model, which left to private parties very limited room in criminal proceedings. In particular, the defence could give only indirect contribution to the taking of oral evidence in open court, since depending on the types of the proceedings, witnesses were examined by either the president of the trial court or by a district court judge (pretore). Furthermore, evidence-gathering was largely frustrated by the widespread use of information collected by law enforcement authorities in the pre-trial stages. In particular, the drafters of the fascist code had construed the intermediate stage (istruzione) as the procedural phase primarily aimed at the collection of criminal evidence. Most significantly, defendants were normally remanded into custody at the beginning of the judicial proceedings, being therefore deprived of the right to take part in criminal proceedings as free persons, with inevitable repercussions on their defence rights. Under the 1930 model, the intermediate phase should have been headed either by an investigating magistrate or the public prosecutor. However, the prosecutorial inquiry, though initially conceived as an exception to the ordinary judicial inquiry, soon gained ground in practice, thus also frustrating the accused’s right to be heard by an impartial body. This result was long tolerated on the ground that the public prosecutor, forming part of the judiciary, is under Italian law an independent body of justice (organo di giustizia). Yet nothing could justify the result of an independent inquiry being conducted by the same authority that charged defendants with a criminal offence, remanded them into custody, and collected incriminating evidence against them.