Glossary of Terms
The Appeal Court (Corte d'Assise d'Appello) is convened to consider appeals against the decisions of the Assize Court. Both the defendant and the prosecution have the right of appeal against decisions of the Assize Court. The Corte d'Assise d'Appello has the same composition of judges and lay judges as the Corte d'Assise, and must also publish written explanations of its verdicts.
Article 507 of the Italian Criminal Procedure Code allows for courts, exceptionally, to allow the introduction of new evidence during the trial of an accused. Normally, all the evidence is available at the start of the trial, but Article 507 allows the introduction of new evidence, where this is "absolutely necessary" (assolutamente necessario).
The Assize Court (Corte d'Assise) is the Italian court which has jurisdiction to judge the most serious crimes, such as murder. The panel of judges comprises two professional judges and six lay judges. The maximum penalties which can be imposed by the Assize Court are life sentences. The verdict is decided by the whole panel of judges (both professional and lay judges). The court is required to publish a written explanation of its verdict: the "Motivation Report".
Calunnia is a criminal offence under Article 368 of the Italian Penal Code (Codice Penale). It is the crime committed when someone falsely directs a judicial authority to blame someone for a crime when he or she knows that person is innocent. This can be by making a false accusation to a judicial authority or by fabricating evidence. The penalty is imprisonment from two to six years. If the accused blames someone for a serious crime, such as murder, the penalty is increased to imprisonment for up to twenty years.
This crime does not have an exact equivalent in common-law jurisdictions, but it is somewhat akin to "perverting the course of justice". It is considered more serious than simple defamation.
Italy has several different police forces with separate roles. The Carabinieri (Arma dei carabinieri), is a national police force that is a branch of the Italian armed forces. It is responsible for policing both military and civilian populations.
The Carabinieri are organised on a territorial basis for law-enforcement operations.
The Communications Police, or Postal Police, (Polizia postale e delle comunicazioni) are a specialist branch of the State Police. They are responsible for investigating crimes relating to communications and Information Technology. This includes mobile phone crime, computer hacking, credit card fraud, and online crime.
The fast-track trial (giudizio abbreviato) is an option in which a defendant gives up some of his or her rights in exchange for a shorter sentence, if found guilty.
Under normal (non-fast-track) proceedings, when a preliminary investigation has been completed by a prosecutor, a Preliminary Hearing, is convened by a judge, to decide whether a case should proceed to trial. Under the fast-track process, however, the Judge of the Preliminary Hearing immediately convicts or acquits the defendant, based solely on the evidence gathered during the preliminary investigation.
This is a reduction of the defendant's rights to a full trial where he or she would otherwise be able to present their own evidence and witnesses. The defendant is therefore rewarded with a reduction in sentence.
By opting for a fast-track trial, a life sentence is automatically reduced to 30 years. Other prison sentences are reduced by one third of their duration.
Defendants who opt for a fast-track trial do not have to plead guilty and there is no element of plea-bargaining involved: the sentence reduction is fixed and automatic. As with any trials in Italy, both the defendant and the prosecution can appeal the judgement at two levels: at the Court of Appeal and at the Supreme Court (the Corte di Cassazione).
In Italy, the role of lay judges is somewhat akin to that of jurors in common-law jurisdictions, but there are some significant differences.
Lay judges are selected from the general public, but some categories of people are not eligible to serve. These are: members of the Judiciary; members of the armed forces; members of the police; and ministers of any religion. Eligibility of lay judges for the Assize Court (Corte d'Assise) is restricted to those older than thirty and younger than sixty-five, who must have completed their education to the level of Scuola Media (junior high school). Lay judges in the appeals court (Corte d'Assise d'Appello) have the same age restrictions but must have have completed their education to the level of Scuola Superiore (senior high school).
Lay judges are selected randomly from lists of eligible people, compiled at district level. When selected, they continue in office for three months, or until the trial in which they are serving ends. Theys are paid for every day of actual exercise of their duty. When on duty, they are considered as public officials and wear a sash in the national colours.
When appointed, lay Judges take the following oath:
Con la ferma volontà di compiere da persona d'onore tutto il mio dovere, cosciente della suprema importanza morale e civile dell'ufficio che la legge mi affida, giuro di ascoltare con diligenza e di esaminare con serenità prove e ragioni dell'accusa e della difesa, di formare il mio intimo convincimento giudicando con rettitudine ed imparzialità, e di tenere lontano dall'animo mio ogni sentimento di avversione e di favore, affinché la sentenza riesca quale la società deve attenderla: affermazione di verità e di giustizia. Giuro altresì di conservare il segreto.
Mitigating and aggravating factors
Italian judges have some leeway in the sentences that they impose, but this involves a documented consideration of aggravating factors (that would lead to an increased sentence) versus mitigating factors (that would lessen it). In the case of the Massei Trial, the judges considered such mitigating factors as:
- the lack of criminal convictions of the defendants;
- their previous good character;
- their young ages;
- the judges' view that the murder was a result of chance circumstances (rather than premeditation);
- the judges' view that there was some degree of remorse (covering the body with a duvet).
The same judges also considered aggravating factors: in particular, the sexual assault.
In Italy, judges must produce a written report, usually within 90 days of the end of a trial. This is referred to in English as a Motivations Report, Reasoning Report or Sentencing Report. It explains, in some detail, the judges' rationale for reaching their verdict and selecting an appropriate sentence. Any failure in the judges' logic and reasoning provides grounds for appeal against the verdict.
Eligibility for parole (libertà condizionata) is governed by Article 176 of the Italian Criminal Code. A prisoner becomes eligible for a grant of libertà condizionata if he or she satisfies all the following conditions:
- The prisoner has spent more than thirty months in prison, or 26 years, in the case of a life sentences;
- The prisoner has served more than half of their sentence, or if they have been imprisoned for another crime in the past, they have served three-quarters of the sentence;
- The prisoner has less than five years remaining on a sentence between 7½ years and life.
They must also meet conditions relating to such matters as their conduct in prison and likelihood of committing another crime.
Of the approximately fifty thousand inmates in Italian prisons, only twenty-one were granted libertà condizionata in 2006. It is much more common to be allowed to work outside the prison during the day (semilibertà, i.e. semi-freedom).
In Italy, plea bargaining (patteggiamento) is only available in cases where the penalty would be a fine or a prison sentence of less than five years. In such circumstances, the defendent may plea-bargain with the prosecutor. The defendent must agree to plead guilty, but will receive a lesser sentence. The bargaining is not about the charges, but about the sentence, which is reduced by one third. It is possible, however, that a prosecutor may agree to a lesser charge. The proposal must be submitted to a Judge, who may accept or reject the proposal. Plea bargaining is not relevant to charges of murder and would not have been a legal option in the Meredith Kercher case.
The Questura is a provincial police headquarters. There is a Questura in each of Italy's 103 provincial capitals, including Perugia. It is responsible for all the activities carried out by the Polizia di Stato within the province. They deal with the control, prevention and fighting of crime in their jurisdiction, and deal with administrative matters, such as requests for gun licences and passports.
Italy has several different police forces with separate roles. The State Police (Polizia di Stato) is Italy's principal municipal police force for the maintenance of public security and the keeping of public order. It is also responsible for highway patrol, railways, and airport security. It is distinct from the Carabinieri.
It includes some specialist branches such as the Communications Police (Polizia postale e delle comunicazioni), sometimes referred to as the Postal Police.
Semilibertà is a system of day release from prison, for the purpose of re-integrating the prisoner back into society. The prisoner is allowed out of prison to participate in work activities but returns to the prison at night. To be eligible for semilibertà, the offender must have served at least half of the sentence (or 20 years, in the case of a life sentence).
Summary Informations They are subject to the usual rules of evidence, namely, that the witness has to testify (rather than the statement is evidence on its own footing – except where the witness has died, etc). Police officers are provided with template forms for recording SIs.
Supreme Court of Cassation
The Supreme Court of Cassation (Corte Suprema di Cassazione) is situated in the Palace of Justice, in Rome. It is the court of last resort in Italy: both the defendant and the prosecution have the right of appeal to Cassation against decisions of the Appeal Court. Litigants may also appeal directly from the trial court. The Court of Cassation cannot rule on the interpretation of the evidence, only on the application of the law.
- Italian Criminal Procedure Code at Legislation on Line
- Articolo 368 Codice Penale, TestoLegge.com, accessed 24 October 2011
- Calunnia e simulazione di reato, La Stampa, 2 March 2010
- Main source: Introduction to the Italian Criminal Trial process at Studio Legale Canestrini
- The Massei Report translation, p.393
- Release from Prison: European Policy and Practice: Nicola Padfield, Dirk Van Zyl Smit, Frieder Dünkel (editors); Willan Publishing
- Il mio Primo Dizionario delle Materie Giuridiche, (2008) [Simone, 2008], p 546. ISBN 9788824469760.