Italian Criminal Justice System Research Articles

Brief reflections on the role of forensic evidence in the italian criminal justice system.

The paper expands on the role of scientific evidences within criminal justice. After a brief analysis on Deoxyribonucleic acid (DNA) and ballistics evidence, it focuses on the issues connected to the use of digital forensics evidence.

Prosecutorial Gatekeeping and Its Effects on Criminal Accountability: The Roman Prosecutor’s Office and Corruption Investigations in Italy, 1975–1994

What explains a criminal justice system’s persistent failure to prosecute a salient and widespread criminal issue, such as systemic corruption? I argue that this results from the presence of a prosecutorial gatekeeper, namely an institution capable of raising jurisdictional issues strategically for the purpose of appropriating investigations and controlling their outcome. In this article, I examine the effects of prosecutorial gatekeeping on corruption investigations within the Italian context. I analyze the causes and effects of the Roman prosecutor’s office use of gatekeeping powers over the years from 1975 to 1994. I show that the Roman prosecutor’s office pursued prosecutorial gatekeeping in order to undermine sensitive corruption investigations involving elected officials and state agents. This resulted in the Italian criminal justice system’s protracted failure to uncover systemic political corruption. Only a suspension in the use of prosecutorial gatekeeping eventually allowed for the Mani Pulite (Clean Hands) operation to move forward unobstructed in exposing this pervasive criminal system in 1992.

The defendant’s guilt beyond a reasonable doubt in the Italian criminal justice system

The criminal law standard of Beyond A Reasonable Doubt (BARD) constitutes an evidentiary and judicial rule, formulated and applied for centuries in common law jurisdictions, which was expressly stated in the Italian Code of Criminal Procedure only about fifteen years ago. Unfortunately, the concept of reasonable doubt is inherently complex and does not easily lend itself to definition or refinement. In this regard, the Author examines especially the various positions and elaborations developed by legal literature and case-law in Italy, proposing a specific interpretation of the BARD rule that enhances and completes the particular procedural connotations of the adversarial system adopted in the Italian criminal justice.

Keep silence for yourself: The protection of the right to silence in the Italian criminal justice system

The present article aims to discuss the protection of the right to silence in the Italian criminal justice system for an international audience. In Italy, the right to silence is a right that stems directly from the protection offered by the Constitution to the right of defence. Much debate revolves around the extent to which the right deserves to be safeguarded. Although the majority of scholarship favours the broadest extension of the right possible, this view is not endorsed unanimously. The legislature has introduced some limits, the most important being that which confines the right to silence to the facts concerning one’s own responsibility, save for exceptions. The courts, in turn, have taken a softer approach in the protection of the right to silence, which may allow the possibility of using the suspect’s silence to draw adverse consequences. Although the Italian system offers comparatively strong protection to the right to silence, it nonetheless leaves some openings that undermine the effectiveness of the right. This article therefore argues that compensating for the possible side effects of the rules on cooperation, removing some negative consequences of silence and the strengthening of remedies are the main fronts where the Italian system can still improve the protection of the right to silence.

Not Citizens, Not Real People. The Italian Way of Governing Immigration through the Criminal Justice System

The aim of this article is to describe the specious use made of the Italian criminal justice system as a device to manage the demands for security due to the general perception of increased immigration flows in Italy. In particular, the article analyses - in each stage of the penal system from substantive criminal law, through criminal procedure law, to the prison system - the connection between the processes of criminalization and the use of extrajudicial measures to control immigration flows (such as border controls and expulsions). The results suggest that this criminal ‘double track’ (Italian citizens on the one side and migrants on the other) - with the subsequent hyper-incarceration of aliens and their final deportation as a consequence of the breach of either or both administrative and criminal law -is a disguised but deliberate choice of recent Italian legislative policy regarding the justice system.

Post-Conviction Remedies in the Italian Criminal Justice System

The Italian Constitution expressly contemplates the possibility of a wrongful conviction, by stating that the law shall determine the conditions and forms regulating damages in case of judicial error. Therefore, it should come as no surprise that many provisions of the Italian Code of Criminal Procedure (CCP) deal with the topic. The aim of this article is to provide an overview of the post-conviction remedies in the Italian legal system by considering the current provisions of the CCP, on the one hand, and by exploring their practical implementation, on the other.

Unveiling Wrongful Convictions Between the U.S. and Italy

This paper focuses on the issue of wrongful convictions as it emerged in the US during the nineties and subsequently gained attention throughout Europe. The first paragraph focuses on the factors that have brought the issue of wrongful convictions to light and on the impact that the US experience has had on the European Criminal Systems’ acknowledgment of the problem. The second paragraph suggests that the perspective of the Italian jurist might be privileged when confronted with the topic of wrongful convictions, as the Italian criminal justice system was designed to combine the best aspects of both inquisitorial and adversarial systems. For this reason, one would expect the Italian system as generating few wrongful convictions. Facts and figures, however, do not support this expectation. The third paragraph therefore focuses on those that might be the main causes for wrongful convictions within the Italian system, and it subsequently points out one major flaw of the Italian approach to the issue of wrongful convictions: the absence of a national database providing detailed information on previous cases of wrongful convictions. The paper then takes the US National Registry of Exonerations and the establishment of CIUs as positive examples from which Italy should learn. The conclusive paragraph highlights one positive aspect of the Italian system, i.e. the limitations to plea bargaining, and suggests that they might be taken as an example in other countries’ reforms of such mechanism.

The U.S. and Italian Criminal Justice System: Through the Lens of the Amanda Knox Trial

The inquisitorial criminal justice systems prevalent in continental Europe derive their characteristics not only from their written codes but also from their culture and history. In this paper, I compare a few key differences between the system of Italy and that of the United States, using examples from the Amanda Knox and Raffaele Sollecito trial. In particular, I discuss differences in jury voting, the appeals process, the concept of guilt beyond a reasonable doubt, and non-formalized aspects of each court system. I conclude that the United States criminal justice system is the more pro-defendant of the two, at least when defendants are not limited by access to legal representation.

İtalyan Ceza Hukuku Sisteminde İstinaf: Hukuk Reformları ve İçtihat Hukuku

This article deals with the crucial and vital issue of the appeal in the Italian criminal justice system. The first part of this study is focused on the historical framework and the main legislative reforms that have characterized the issue of appellate remedies. After this general overview, the article analyzes the different types of appellate remedies and the fundamental principles that govern them. However, the core of this article is devoted to the appeal, which has recently been affected by important legislative reforms that have reshaped it. After some preliminary remarks regarding the nature of the appeal in the Italian criminal justice system, the work deals with the form of the appeal, identifying the subjects who are entitled to lodge an appeal and the preconditions that justify the filing of it. The article is then focused on the appellate procedure, dedicating particular attention to the renewal of the trial evidentiary hearing in case of appeal of the public prosecutor against a first-instance acquittal. This case of renewal has recently been introduced by the Italian legislator following the case law of the European Court of Human Rights and of the Italian Court of Cassation. After analyzing such issues, this work identifies the outcomes of the appellate procedure. Finally, the article draws some conclusions about the issue of the appeal in light of the recent legislative reforms and case law.

Processo penale e prescrizione nel quadro della giurisprudenza europea. Dialogo tra sistemi o conflitto identitario?

Precarietà e incertezza sembrano affliggere, nei tempi recenti, la prescrizione del reato, quando la si osservi da una prospettiva sovranazionale o comparata. Sullo sfondo, si pone il problema della tenuta del nostro sistema nel suo complesso, e persino della sua identità, come l’abbiamo concepita e tramandata di generazione in generazione. Con l’ordinanza n. 24 del 2017, la Corte costituzionale, sollevando una nuova questione pregiudiziale, mostra l’intento di non consumare una rottura del dialogo con l’ordinamento UE, limitandosi a paventare il rischio di ricorrere ai controlimiti, senza effettivamente porli in essere. Tuttavia, il provvedimento appare criticabile per alcuni argomenti utilizzati, e per la posizione assunta, che sembra lasciare poco spazio per specificazioni e aggiustamenti alla Corte di giustizia. La decisione, infatti, pur mostrando formalmente apertura a un confronto con la Corte di giustizia, tende a proporre in realtà una divisione tra mondi opposti e inconciliabili: di qua il diritto italiano, con la sua tradizione irrinunciabile; di là quello europeo, al quale formalmente si mostra deferenza (purché non si ingerisca in questioni vitali). Sembra il piano per una sorta di convivenza da separati, che certo ha il pregio di guadagnare tempo. Tuttavia, non si intravvede, nel ragionamento condotto, alcuna strada per raggiungere, o almeno per intraprendere il cammino verso una integrazione reale degli ordinamenti: è questo, in realtà, il nodo che, se non affrontato adesso, tenderà a riproporsi in successive occasioni.

Procedural tradition in the Italian Criminal Justice System

The reform of the Italian Code of Criminal Procedure (ccp) in 1989 was an ambitious attempt to transplant adversarial principles in a Criminal Justice System (CJS) that was rooted in its inquisitorial structure. From the pure legal perspective, the reform failed because the CJS appears now as a superimposition of adversarial values on a structure that remains inquisitorial. From the socio-legal comparative perspective, however, there are other contextual issues that deserve to be analysed. Following the introduction, I will focus on the changes that have taken place in the Italian ccp in 1989. This part of the article will explain the new semi-adversarial legal structure of the Italian CJS and the reasons why the current procedural system appears very complicated. The second part of the article will concentrate on the inquisitorial cultural resistance that Italian legal actors use to oppose the adversarial reform. The cultural analysis will be emphasised through the contextualisation of the 1989 reform in the Italian distinctive socio-political environment. In the third part I will analyse prosecutors’ legal culture to discuss the internalisation of adversarial principles in the Italian CJS. The conclusion will emphasise the importance of socio-legal asymmetrical comparisons to study the evolution and harmonisation of European procedural traditions.

Of hearsay and beyond: is the Italian criminal justice system an adversarial system?

An Italian criminal case (the murder of Meredith Kercher) has once more attracted attention over the shape of the Italian criminal justice system. Is the Italian system a mixed system or an accusatorial one? In the past decades Italy has often been taken as a case study in comparative criminal law for its transplant of the common law adversariality into the classic French continental structure. The author discusses the features of the Italian system and what features make a system accusatorial or adversarial. He argues that the hearsay law remains the crucial point to understand the adversariality of a system and that the Italian rules are not too distant from the English rules on hearsay.

Effective Criminal Defence in Europe: Italy

The paper deals with the Italian Criminal Justice System, focusing on the issue of the effective criminal defense.The work gives a general framework of the Italian criminal justice system, from the fundamental principles provided for in the Italian Constitution to the specific provisions of the criminal law and criminal procedure codes.The Author conducts also a statistical analysis of the system, especially regarding the endemic problem of the process' unreasonable delay, which is affecting Italy since many decades. The analysis on the field is also related to the current political and social concerns and priorities.

The Treatment of The Criminally Insane in Italy: An Overview

). Law 180/1978 resulted from harsh debates thatinvolved many sectors of Italian society, which were held over a period ofmore than 10 years. Enormously different positions were taken on the matter,ranging from severe criticism to enthusiastic acceptance (Jones, Wilkinson, C Mosher, 1982; Palermo, 1991).Even today, a clear and useful evaluation of both the negative and positiveeffects since the approval of Law 180 is quite difficult to attain. This is not onlybecause of the intensely emotional ramifications generated both nationallyand internationally by this attempt for reform, but also because of the method-ological limitations that impede scientific research on this subject (Morosini &Veltro, 1989).We must also consider that Law 180 did not in any way change the preexist-ing set of norms specifically devoted, within the Italian criminal justice system,to mentally ill patients who commit a crime eventually. This lack in the reformhas generated several serious contradictions that are still unresolved. Any so-lution seems problematic, both in terms of management of the psychiatric pa-tient and in terms of guaranteeing public safety.