Arrest of a U.S. Citizen
Information on Italian Criminal Laws and Procedures
The following information is provided as a general overview of Italian criminal laws and procedures, which can differ greatly from those in the U.S. It is not intended to substitute advice from a lawyer licensed to practice in Italy. For definitive legal guidance and advice, you should consult a lawyer. For a list of English-speaking attorneys please see: http://italy.usembassy.gov/acs/professionals/lawyers/lawyers-main.html
Italian criminal law is codified in the Criminal Code (Codice Penale), in special legislation, and in the Code of Criminal Procedure (Codice di Procedura Penale). A fundamental principle of Italian law is that neither an Italian citizen nor a foreigner can plead ignorance of the law as an excuse for not complying with the law. All people are equal before the law without privileges or exemptions, regardless of sex, social status, or race.
A person can be deprived of his/her liberty in order to compel his/her appearance before a court to respond to a criminal charge. An "arrest" occurs when a person has been taken into police custody and is no longer free to leave or move about. In general, an arrest is mandatory in Italy when a police officer witnesses the commission of a crime (arresto in flagranza), when a person is found in possession of tangible evidence of a crime or when the offense carries a penalty of more than five years' imprisonment. The public prosecutor can also order an arrest (fermo di indiziato di delitto) while an investigation is pending, if there is very serious incriminating evidence against the accused and if there is danger that s/he might flee the jurisdiction.
Police officers must immediately inform the public prosecutor of the arrest. If the public prosecutor deems that the arrest was wrongfully made, the person is immediately released. If the arrest is deemed to be correct, the public prosecutor must ask the judge in charge of the case at this stage (Giudice delle Indagini Preliminari), within 48 hours of the arrest, to approve the arrest (convalida dell'arresto o del fermo). During the 48-hour period thereafter, the judge must hold a hearing to discuss the arrest.
At the hearing, the public prosecutor and the defense counsel present their cases and the judge can:
- disapprove the arrest and order the immediate release of the accused; or
- approve the arrest and order a “precautionary measure” (e.g. prohibition to leave the country or house arrest) to prevent the accused from fleeing the country, committing another crime or tampering with the evidence. The law stipulates preventive detention from a minimum of three months to a maximum of six years depending on the seriousness of the crime.
Prisoners awaiting trial (or, if already convicted, awaiting the outcome of an appeal) are sometimes conditionally released (rimessione in libertà). The granting of a conditional release is completely at the discretion of the responsible judge. Conditional release generally will not be granted in the case of a prisoner deemed likely to commit another crime if released while awaiting trial, or if the charges are particularly serious. When granting conditional release, the judge can limit the movement of the accused by ordering him/her to remain in Italy, not to reside in a certain area, or to stay in a hospital or other facility.
The accused has the right to immediately consult with an attorney. S/he has also the right to an interpreter. Defense counsel's presence is mandatory during the interrogation of the accused and during all hearings. If the accused does not have an attorney, the public prosecutor’s office or the judge will appoint one (difensore di ufficio) from an available list of attorneys. The public prosecutor must give defense counsel at least 24 hours notice regarding any interrogation, inspection or cross-examination that involves the accused.
An American consular officer will visit any U.S. citizen in jail as soon as possible after his/her arrest. Consular officers cannot obtain a prisoner's release. A consular officer's responsibility is to ensure that the accused is receiving the same treatment that is accorded to anyone facing a similar charge in Italy, that the accused is receiving due process under Italian law, that s/he is not being discriminated against because s/he is American, that s/he is not being mistreated, and that s/he is being represented by an attorney of his/her choice. The consular officer will provide the accused with a list of attorneys from which the accused may select an attorney. It is the responsibility of the accused to reach an agreement with the attorney over fees and conditions of the defense. The U.S. Government and its consular officers are not authorized to meet prisoners' expenses, including attorney's fees.
Investigations and Pretrial Period:
Criminal procedures begin when the public prosecutor is notified of a crime (notizia di reato) by the Italian Judicial Police (Polizia Giudiziaria) or by any citizen. When the public prosecutor is notified of a crime, s/he is obliged to start the preliminary investigations.
The preliminary investigation is conducted by the judicial police at the direction of the public prosecutor. In some cases, the public prosecutor personally investigates cases. The preliminary investigation may involve inquiries, examination of witnesses, identification of suspects, confrontations, sequestrations, telephone and mail intercepts, and other similar procedures.
The public prosecutor’s office has a maximum of six months to a year (depending on the nature of the crime) to carry out an investigation of a suspect. If an investigation develops into a very complex case (e.g. if the investigation has to be carried out abroad or if the case cannot be concluded in the time allowed), the term for completing the investigation may be extended to between 18 months and 2 years. Requests to extend the term for completing the investigation must be approved by the judge. Timing in the Italian legal system is very different from the American system. Postponements and delays in the investigations are quite common, making it often impossible to predict when such investigations will be completed.
After the investigation is completed, the public prosecutor can:
- determine there is not enough evidence to support the charge(s); in this case the public prosecutor will ask the judge in charge of the case at this stage (Giudice delle Indagini Preliminari) to dismiss the case. The public prosecutor must inform the crime victim of this intention to apply for dismissal of the case, only if the crime victim requests to be informed. The victim may then file an opposing brief with the judge indicating why further investigations should be performed. If the judge deems that the charges are well-founded, the judge orders the public prosecutor to carry out further investigations or to file formal criminal charges against the suspect. If the victim fails to indicate why further investigations should be performed or the judge deems there is not enough evidence to support the charge(s), the case is definitively closed; or
- determine there is sufficient evidence to support the charge(s); in this case the public prosecutor must notify the suspect, the defense counsel and the crime victim that the investigation is closed and asks the judge (Giudice dell’Udienza Preliminare) to send the case to trial specifying the formal charges against the accused (richiesta di rinvio a giudizio). The judge then sets a date for a preliminary hearing (udienza preliminare) in which the accused can defend him/herself. At the hearing, the judge can decide to close the case without proceeding to a trial or order the case go to trial (rinvio a giudizio).
If the charges are not dropped, the case proceeds to the trial phase (dibattimento). A series of hearings take place. Preliminary issues are verified. At this stage, the public prosecutor and the defense make their cases by presenting their evidence and then the debate begins.
Once both the public prosecutor and the defense counsel have argued their cases, the judge issues a verdict. If the defendant is found guilty, the sentencing takes place immediately. If the defendant is found innocent, s/he is immediately freed.
The length of criminal proceedings in Italy varies depending on the type of crime, the nature of the evidence, and the legal motions filed by all parties. The average length of proceedings before the tribunals is approximately three years.
A verdict can be appealed before the Court of Appeals (Corte D’Appello) and then before the Supreme Court (Corte di Cassazione) if certain criteria exist. Courts of appeals review the lower court’s decision and can rule on questions of both law and fact. Victims are not generally expected to testify again. Appeals before the Supreme Court are heard only on questions of law; the facts established in any previous court’s rulings are not challenged. The average length of proceedings before courts of appeals is approximately two years. The average length of proceedings before the Supreme Court is approximately one year.
Generally, all criminal proceedings follow the same pattern: the investigative phase, the preliminary hearing, the trial and the appeal. However, there are times in which, when certain conditions exist, the proceedings can be expedited because one of the special proceedings listed below can take place.
ABBREVIATED TRIAL (Giudizio Abbreviato): The accused may ask the judge to render a verdict without the case going to a full trial. The judge must agree to such request. If the defendant is found guilty, s/he is rewarded with a one-third reduction of the sentence. Abbreviated trial convictions may be appealed.
PLEA BARGAINING (Patteggiamento): The accused and the public prosecutor may agree to a reduced prison term in the event of a guilty plea. The agreement must be submitted to the judge who can accept or refuse it. If the judge accepts the agreement, the decision can be appealed only before the Supreme Court. If the accused is convicted, the sentence becomes final immediately.
EXPEDITIOUS TRIAL (Giudizio Direttissimo): Whenever there is clear and convincing proof that the accused has committed the crime, the public prosecutor can decide to skip the preliminary hearing phase and go directly to trial. Specifically, this special proceeding can be used when the accused is arrested because s/he was caught committing a crime; in this case, the public prosecutor can ask the judge to approve the arrest and argue the case in the same hearing. Similarly, when the accused has confessed s/he has committed the crime, the public prosecutor can summons the accused to appear before the judge to undergo an expeditious trial. In both cases, the accused is not entitled to any reward; however, s/he can ask to adjourn the hearing for a ten-day period to prepare his/her defense.
Penalties for crimes can range from a fine to up to life imprisonment. Italy does not employ the death penalty.
As with U.S. criminal law, Italian law recognizes a distinction between misdemeanors and felonies, with felonies carrying longer sentences.
Italian legislation offers a wide range of measures falling under the category of “community-based penalties and measures”:
- "Alternative measures to detention”, for prisoners serving definitive sentences, include:
- probation under the supervision of Social Services
- house arrest
- semi-liberty (e.g. work release)
- early release (i.e. sentence reductions)
- “Penalties replacing short prison sentences”, which are imposed by the presiding judge. When deciding on a prison term of up to two years, a judge may rule for semi-liberty or up to one year supervised liberty. Prison terms of up to 6 months may be replaced with a corresponding fine.
- “Conditional release”: A person sentenced to imprisonment whose conduct, while serving the sentence, shows evidence of rehabilitation, may be granted "conditional release" after having served at least one-half of the sentence, or at least three-quarters in the event of recidivism, and at least 26 years in the case of a life sentence.
- “Victim-Offender Mediation”: Lesser offenses are prosecuted only on the basis of the action of the victim. In such cases, the prosecutor may call the victim and the offender to appear for mediation. If the parties reach agreement, the proceedings are dropped.
Police Force (Polizia Giudiziaria): the judicial police force includes the State Police, the Carabinieri (military police), the Guardia di Finanza (fiscal police), the Polizia Municipale (municipal police), and special forces assigned to specific areas (e.g. harbor police.)
Public Prosecutor or District Attorney (Pubblico Ministero or Procuratore della Repubblica): supervises judicial police investigations and in certain cases personally conducts investigations against the accused. Files charges against the accused.
Assistant District Attorney (Sostituto Procuratore): handles cases as designated by the District Attorney.
Justice of the Peace (Giudice di Pace): has jurisdiction over minor criminal cases.
Criminal Court (Tribunale Penale): has original jurisdiction over criminal cases. Hears appeals from the Justice of Peace.
Juvenile Court (Tribunale per i Minorenni): has jurisdiction over crimes committed by those under the age of 18.
Assize Court (Corte d'Assise): has primary jurisdiction over major felonies such as murders and political crimes.
Court of Appeals (Corte d'Appello): hears appeals from the criminal court.
Juvenile Court of Appeals (Corte d’Appello Sezione Minorenni): hears appeals from the Juvenile Court.
Assize Court of Appeals (Corte d'Assise d'Appello): hears appeals from the Assize Court.
Supreme Court (Corte Suprema di Cassazione): is the highest court in the judicial hierarchy. Appeals before the Supreme Court are heard only on questions of law; the facts established in any previous court’s rulings are not challenged.
Constitutional Court (Corte Costituzionale): has jurisdiction over constitutional matters.
General information for prisoners in Italy can be found in the Prisoner’s Guide (PDF 103K).