1. finance
2. personal finance
3. financial planning
4. retirement and pension

ITALY
INTRODUCTION
1.
Overview of the system: Italy is traditionally a civil law system, but in the recent
decades its criminal procedure has been the subject of a series of legislative reforms
which have introduced numerous aspects of the adversarial process typically
associated with the common law. In 1988, a new Code of Criminal Procedure ( Codice
di Procedura Penale or CPP)—inspired, among others, by the principles of equality of
arms, impartiality of judges, and audi alteram partem admission of evidence—radically
innovated the previous inquisitorial tradition, so that now the Italian system can be
properly classified as a ‘mixed’ one. This system is characterized by a fundamental
separation between the investigative phase and the trial phase. Criminal proceedings
are initiated by a public prosecutor (Pubblico Ministero or PM) who is responsible for
the conduct of the investigation and the presentation of the case at trial. His
investigative activity is overseen by a judge (Giudice per le Indagini Preliminari or GIP),
who is different from both the judge who decides on the confi rmation of charges
and the judge(s) who sit at trial. Pursuant to Article 112 of the Italian Constitution,
the exercise of prosecutorial powers is compulsory. This means that the PM has a
duty to investigate the allegations brought to his attention and , normally within six
months, decide whether to initiate proceedings or drop the charges (see infra para. 9).
His decision is supervised by a judge (Giudice dell’Udienza Preliminare or GUP) in the
course of a preliminary hearing (UP), which ensures that the du ty to prosecute has
been complied with. Both at the pre-trial and trial stage, judges are typically triers of
fact. However, the most serious crimes —primarily, those carrying a maximum
penalty of 24 years of imprisonment or higher 1—are tried by a bench composed of
two professional judges and six lay judges. In these cases, professional and lay judges
decide together on both the fact s and the law.
2.
Definition of victim: The 1988 Code of Criminal Procedure draws a clear distinction
between victims of the crime stricto sensu and persons injured by the crime. The Code
refers to the notion of ‘victim of the crime’ ( persona offesa dal reato) in various sections,
but it does not provide a definition. The majority of scholars identify the victim as
the holder of the interest(s) protected by the criminal provision that has allegedly
1
See Article 5 CPP.
been violated. 2 This approach has been followed by the Supreme Court of Cassation. 3
The person injured by the crime (danneggiato dal reato), on the other hand, is the person
who suffered physical or mental harm as a consequence of the crime. 4 The two
notions may—and in most cases do—overlap, but they remain conceptually distinct
and have different significance in the proceedings. The fundamental difference lies
in the fact that only injured persons can bring their civil claims against the accused
within the criminal proceedings. The choice between filing a lawsuit before a civil
court and bringing the claim in the criminal proceedings rests freely on t he injured
person. When the injured party decides to bring his claims before the criminal judge,
he becomes a party to the criminal proceedings (parte civile) according to Article 76
CPP. Conversely, the status of victim in itself does not entail that the person
concerned becomes a party to the proceedings. The law entrusts the victim with a
number of passive and active rights, and Article 90 CPP provides for a general right
to submit pleadings and show evidence to the prosecutor and the judge at any stage
of the proceedings (with the exclusion of the proceedings before the Court of
Cassation, where new evidence cannot be introduced). It has been highlighted that
the role of the victim is particularly i mportant during the investigative phase, where
it is additional and supporting to the role of the prosecutor. Its function, in
particular, consist of overseeing and prompting the activity of the latter with regard
to the conduct of the investigations, gath ering of evidence, and exercise of
prosecutorial powers; however, the victim does not have autonomous powers to
initiate criminal or civil proceedings. Therefore, its role is limited by that of the
prosecutor and the parte civile. 5 Finally, Article 90(3) extends the status of victim to
the immediate family of the person who deceased as a consequence of the crime for
the purpose of exercising the related rights.
3.
Lodging a criminal complaint: Pursuant to Article 330 CPP, the prosecutor and a
specialised police forces (polizia giudiziaria) acquire notice of the commission of
crimes (notitia criminis) autonomously or through complaints brought by third parties.
Public officials have a duty to report the crimes of which they become aware while
discharging their functions; such report must be in written form and it is handed in
to the prosecutor or polizia giudiziaria ‘without delay’ (Article 331 CPP). Private
Spangher, La pratica del processo penale (Vol. 3, CEDAM 2013) 150; Gaito, Codice di procedura penale ipertestuale commentato
(UTET 2012) 475.
3 Cass. Sez. Un. 21.4.1979, Pelosi; Cass. Sez. Un. 25.10.2007, Pasquini.
4 Gaito, 477.
5 Spangher, ‘I soggetti’ in Conso and Grevi (eds), I profili del nuovo codice di procedura penale (3rd ed, Padova 1993) 80.
2
citizens, including victims of the offences, have the right to lodge a complaint
concerning the crimes of which they have knowledge. In this case, the criminal
complaint can be lodged orally or in written form , in person or through an agent ; if
presented in written form, this must bear the signature of the person who files the
complaint or a representative (Article 333 CPP). Irrespective of the person who files
the complaint, this must include a description of the essential facts and state the date
on which the notitia criminis has been acquired, together with the sources of evidence
which are known at the time. To the extent that it is possible, the complaint must
also include the personal details of the person who files the compl aint, any elements
concerning the person to whom the facts are ascribed , and those who can give
information on any relevant circumstances (Article 332 CPP). No use can be made
of anonymous complaints, except for very limited cases provided for under
Article 240 CPP.
4.
The complaint lodged by the victim of the crime has a special significance in relation
to those crimes for which criminal proceedings cannot be initiated ex officio by the
prosecutor. Indeed, the complaint of the victim (here known as querela) is sometimes
a necessary condition for an action to be brought against the accused due to: (i) the
small significance of the interest protected by certain criminal norms (e.g. breaking
and entering), (ii) the additional harm that the exposure determined by the
proceedings can cause to the victim (e.g. sexual offences), or (iii) the special
relationship between the victim and the author of the crime. 6 According to Article
120 of the Criminal Code (Codice Penale or CP) and Article 336 CPP, every person
who has been the victim of such crimes has the right to file a querela. Unless otherwise
stated, the querela can be lodged within three months since the commission of the
crime, but this right can be waived if the victim acts in a way that is incompatible
with it (Article 124 CP). The querela is subject to the formalities of a standard criminal
complaint and, if there is a plurality of victims, it is sufficient that it comes from one
of them (Article 337 CPP and Article 123 CP). Slightly different from the querela, is
the so-called istanza di procedimento, which is an act through which the victim of a
crime committed outside the Italian territory demands that criminal proceedings be
initiated before the Italian judiciary. Pursuant to Article 341 CPP, the istanza is
lodged following the same formalities of the querela.
5.
No specific conditions are set out in relation to international crimes.
6
Mantovani, Diritto Penale (7th ed, CEDAM 2011) 238.
6.
Private prosecution: A mechanism of purely private prosecution is absent in the
Italian system and would reasonably collide with the PM’s duty to prosecute
enshrined in Article 122 of the Constitution. However, the Decreto Legislativo 28 agosto
2000 n. 274 (d.lgs. 274/2000) has introduced a limited power for private parties to
initiate criminal proceedings in relation to minor offences before the Justice of the
Peace (Giudice di Pace). The Giudice di Pace is an honorary judge that has a special
jurisdiction on matters that pertain to small controversies between privates, including
minor offences of limited social concern (Article 15 Legge 24 novembre 1999 n. 468
and Article 4 d.lgs. 274/2000). In the light of this particular competence, victims of
crimes whose proceedings are contingent upon the submission of a querela (v. supra)
can bring their action directly against the accused by summoning him before the
Giudice di Pace. This action, which closely resembles private prosecution, is in fact a
mixed procedure. Firstly, direct summoning of the accused remains alternative—and
cumulative—to the standard filing of a criminal complaint in the forms of a querela.
If the victim decides to bring his claims directly against the accused, he must file his
summons to appear before the registry of the Giudice di Pace within three months
since the moment the alleged criminal facts became known (Article 22(1) d.lgs.
274/2000). According to Article 21, the summons to appear must contain: (i) the
identification of the elected judge; (ii) personal details of the plaintiff (victim) and
his legal counsel; (iii) the identification of other victims—if any; (iv) personal details
of the accused summoned; (v) a clear description of the facts and the charges brought
against the accused; (vi) documents and other exhibits which are tendered into
evidence; (vii) a request for the initial hearing to be set; (viii) the signature of the
victim. However, prior to filing the summons, the victim must give notice of it to
the office of the public prosecutor. This allows the PM to oversee the proceedings
and intervene in them—within 10 days—if he so deems appropriate (Article 25 d.lgs.
274/2000). Nonetheless, the PM’s intervention is not necessary and proceedings can
commence upon the exclusive initiative of the victim. If injured by the crime, the
victim can also bring his civil claims against the accused by requesting to become
parte civile in the proceedings (Article 23). The costs of the proceedings is regulated
by the general rules; if found guilty of the charges against him, the accused is
convicted to pay for the costs of the proceedings (Article 535 CPP). T he victim will
bear the costs of his legal assistanc e—unless entitled to legal aid—but if the civil
claims brought as parte civile are upheld, he can be awarded compensation for such
costs together with damages (Article 541 CPP).
7.
No specific conditions are set out in relation to international crimes.
QUESTION 1: IN LIGHT OF RELEVANT LEGISLATION, CASE LAW
AND POLICY DOCUMENTS, DOES YOUR JURISDICTION PROVIDE
FOR VICTIM PARTICIPATION IN CRIMINAL PROCEEDINGS FOR
ALL ALLEGED VICTIMS IN ANY OF THE FOLLOWING FORMS?
8.
The supranational framework: On 25 October 2012, the Parliament and Council
of the European Union approved the Directive 2012/29/EU establishing ‘minimum
standards on the rights, support and protection of victims of crime ’. According to
Article 1, the purpose of the Directive is ‘to ensure that victims of crime receive
appropriate information, support and protection and are able to participate in
criminal proceedings’. Its content is profoundly innovative from an Italian
perspective, in that it assigns a primary role to an actor that the 1988 Code of
Criminal Procedure has been left in a rather marginal dimension. The Directive
provides an autonomous definition of ‘victim’ 7 and, where a person’s death was
directly caused by the criminal offence, it extends the relevant rights to its family
members (Article 1). As to the rights set out in the Directive, these include a great
variety of substantial and procedural prerogatives, such as : (i) the right to receive
information from the first contact with a competent authority and to obtain free
interpretation and translation (Articles 4 and 7); (ii) access to confidential victim
support services (Article 8); (iii) extensive rights of participation in the proceedings,
including the right to be heard and to object the decision not to prosecute (Articles
10 and 11); (iv) right to legal aid (Article 13); and (v) right to protection (Article 18).
To date, Italy has not given implementation to the Directive . The Italian Parliament
has commenced the relevant legislative process and approved the Legge 6 agosto 2013,
n. 96 (Legge di delegazione europea 2013 ). The Legge delegates the power to implement
the necessary acts to the Government; however, this legislation is yet to be enacted.
The deadline for the transposition of the Directive is 16 November 2015.
9.
Duty to investigate: As mentioned above, the constitutional duty to prosecute
implies that the PM and the police forces have the duty to investigate each notitia
Article 1 (a)(i): ‘a natural person who has suffered harm, including physical, mental or emotional harm or economic
loss which was directly caused by a criminal offence’.
7
criminis of which they receive notice or become aware autonomously. These notitiae
are ‘immediately’ recorded by the PM in the Official Registry of the Reported
Offences (registro delle notizie di reato) which is regularly updated throughout the
investigations (Article 335 CPP). The rec ord of this information can be kept
confidential for investigative purpose only for a period of three months by means of
a motivated decree of the PM (Article 335(3 -bis) CPP). The PM has normally six
months to complete his investigation; this term is longer for particularly serious
offences and can in any case be extended every six months upon request of the PM
to the GIP, for a maximum period of 18 months (Article s 415-416 CPP). Once the
term is expired, the PM must decide whether to prosecute the alleged offender or to
apply for dismissal of the case to the judge of preliminary investigation ; the victim
has the power to intervene at this stage (see infra). The fact that the investigation
commenced upon a complaint being filed by the alleged victim does not affect the
conduct of the proceedings. These being a compulsory activity, there is no general
means to enforce investigation as such. The victim, however, has the duty to receive
copy of his complaint, which includes a Protocol Number that can be used by the
victim to contact the authorities and track at any time the status of his complaint.
The victim is then entrusted with a number of rights that allow him to oversee the
activity of the prosecutor and promote the performance of specific acts.
10.
Failure to report: Failure to report a criminal offence of which a public officer had
become aware while discharging his function is a crime under Article 361 CP. When
the public officer is a member of the police for ces, he can be sentenced up to oneyear imprisonment, unless criminal proceedings require the special complaint
(querela) of the victim. The agent who is responsible for thi s omission is also subject
to disciplinary action pursuant to Articles 16 -19 of the Decreto Legislativo 28 luglio
1989, n. 271 (‘disp.att.’); such action is promoted by the general prosecutor before
the Court of Appeal of the district where the agent is in service. The victim of this
omissions can therefore lodge a separate complaint to the prosecutor or other police
forces, according to the general rules.
11.
Rights of the victim during the investigation phase : As mentioned above,
according to Article 90 CPP, the victim has the right to file pleadings and provide an
indication of relevant evidence at any stage of the proceedings. In the investigation
phase, pleadings are generally filed before the GIP , while indication of evidence is
given to the PM. However, when the judge and prosecutor receive these submissions,
they are in no duty to take any specific actions in their regards. 8 The victim has a
number of rights relating to the acquisition of evidence in the pre -trial phase.
Evidence are normally admitted at trial, but where there is concrete risk that a piece
of evidence may be lost or tampered if its acquisition is postponed at a later stage,
the prosecutor may request that the evidence be admitted during a particular pre trial hearing called ‘incidente probatorio’ (Article 392 CPP). 9 The victim has the right to
be informed of the date and place where the hearing takes place and to participate in
it (Article 398 CPP). With the assistance of a legal counsel, the victim is entitled to
access part of the case file and prior statements of the individual to be heard during
the pre-trial hearing; in this context, the victim’s counsel can also participate in the
examination of such person (Article 401 CPP). If the subject of the hearing is the
acquisition of an expert-opinion, the victim can nominate his own expert. 10 The
victim can also submit a request for the PM to set up a pre-trial hearing for the
acquisition of specific evidence. The PM is not obliged to grant this request, but if
he rejects it, he must do so by means of a motivated decree (Article 394 CPP).
12.
The victim is entitled to receive a numb er of additional communications on the
development of the investigation. The prosecutor must give notification to the victim
of copy of the document containing the charges that he serves to the accused during
the investigation phase (Article 369 CPP). If he has previously so demanded, the
victim must also receive notice of the prosecutor’s request for an extension of the
time limit for the investigation. Upon receiving this communication, the victim has
five days to submit pleadings to the investigative jud ge as to the denial of such an
extension (Article 406). The most important communication, however, concerns the
decision of the prosecutor to apply for the dismissal of the case against the suspect
under Article 408 CPP (see infra para. 16).
13.
In order to exercise their prerogatives, victims can appoint a legal counsel to assist
them and participate in the proceedings (Article 96(2) CPP). As seen above, the
performance of certain acts is permissible only through a counsel; therefore, although
not compulsory at this stage, such an appointment broadens the ability of the victim
to participate in the proceedings. While the right to counsel is always guaranteed,
legal aid is provided only in some circumstances. Victims of certain offences (such
Amodio, 550.
The pre-trial hearing takes place in camera, before the judge of the preliminary investigations, in the presence of a
prosecutor and counsel. Statements given at the pre-trial hearing count as evidence in subsequent proceedings.
10 C. Cost. 28.12.1990, n. 559, in CP, 1991, 131.
8
9
as mafia offences and sexual offences) are entitled to receive free legal aid (see infra
para. 41). Otherwise, victims receive free legal aid and assistance only if their income
is particularly low. 11 In order to render their rights more effective, victims are entitled
to perform their own investigation, called ‘defensive investigation’ via counsel or
private investigator aimed at collecting relevant evidence (statements of informants,
documents from public administration, etc.) (Articles 391bis-391decies CPP). Such
investigation may be used in special proceedings (such as summary proceedings or
plea-bargaining) as evidence equal to the investigation by the prosecution.
a)
Are there provisions for support services (including counselling, use of interpreter,
interim compensation and other measures) at the time of complaint?
14.
The Italian system presents an evident lacuna in relation to support services for the
victims of crime. Support centres are almost entirely non-existing, with only a few
exception represented by private non-profit organizations. 12 No counselling service
is provided for victims who approach the authorities to lodge their complaints. Even
the right to use an interpreter and to obtain copy of the essential documents in a
language that the individual can understand are rights recognized as such only in
relation to the accused (Article 143 CPP). This gap is so evident that the Supreme
Court of Cassation has recognized the admissibility of a special complaint ( querela)
even where translated with the assistance of unqualified personnel at the time it was
lodged. 13 The victim as such cannot request interim measures in the investigation
phase. The status of the Italian discipline on the matter is therefore unsatisfactory
and seems in contrast with the relevant obligations arising from the EU legislation. 14
b)
15.
Are there provisions for witness protection during the investigation?
Victims who give their testimonies during criminal proceedings can benefit from the
witness protection programme established by the Decreto legge 15 gennaio 1991, n.8 as
amended by the Legge 13 febbraio 2001, n. 45. According to Article 16bis of the Decreto,
in order to qualify as a protected witness the individual must be either a victim of
the crime or a person who has information on the crime, and must not be subject to
any restrictions for public security reasons. Moreover, the information provided by
According to Article 76 of the Testo Unico delle Spese di Giustizia (D.P.R. 30 maggio 2002, n. 115), in order to benefit
from free legal aid, the victim’s family income must be lower than 11,369.24 euros per annum (plus 1,032.91 euros for
each additional member).
12 See e.g. http://www.associazionelibra.com (25 March 2015).
13 Cass. Pen. Sez. V sent. n. 17967 del 19 aprile 2013.
14 Silvio Sau, Le garanzie linguistiche nel processo penale (CEDAM 2010) 171.
11
the witness must be ‘reliable’. If the individual who provided such information to
the authorities is exposed to serious and imminent thr eat due to his testimony, the
witness, his close relatives, and those who are endangered by his declarations are
entitled to a number of protective measures. Pursuant to Article 16 ter of the Decreto,
these measures aim at both protecting the physical integrity of the witness and his
family and ensuring financial assistance in order to grant them a reasonable standard
of living. These measures may also entail the change of location and identities of
their beneficiaries. The protective measures are suggested by the prosecutor and
administered by a specialized administrative commission appointed by the Secretary
of State and Ministry of Justice (Commissione centrale per la definizione e applicazione delle
speciali misure di protezione). The Commission decides on the admission to the
programme, issues the measures, and determines their contents. The measures remain
in force even after the conclusion of the proceedings, until the threat has ceased.
c)
16.
Are the alleged victims consulted while deciding whether to prosecute?
At the end of the investigation, if the Prosecutor considers that he has not sufficient
elements to bring a case against the suspect, he must submit a request to the
investigative judge (GIP) and demand that the case be closed without trial. The
prosecutor reaches this determination autonomously, without consulting beforehand
with the victim. However, where the victim has made a specific request in this regard
(either in the complaint or in a sub sequent pleading), he must receive notice of the
PM’s request and has the right to access the case -file submitted by the PM to the
GIP (Article 408). If such notice is omitted, the victim has the right to appeal the
decision to close the case directly befo re the Supreme Court of Cassation (Article
409(6) CPP). Upon receiving notice of the PM’s request to close the case, the victim
is given a fundamental opportunity to challenge this determination by appealing
against such a request to the GIP (Article 410 CPP). The victim’s application must
contain an indication of the object on which further investigation is deemed
necessary and of the evidence that support his allegations. In order to exercise this
right, the use of the ‘defensive investigation’ is therefore of critical importance. If
the GIP considers this application inadmissible, he can uphold the PM’s request and
close the case. Otherwise, the GIP convenes a hearing pursuant to Article 409 CPP
in which he can instruct the PM to c arry out further investigation or bring charges
against the accused.
17.
Once the term for the investigation is expired, if the PM neither request s to close
the case, nor brings his charges against the accused, the victim may require the direct
engagement in the investigation of a Higher Prosecution office, which is the
prosecution office that is normally responsible for appellate proceedings (Article 412
CPP).
18.
Where the prosecutor, at the end of the investigation, decides to continue the
proceedings and bring a case against the accused, he must notify him of this decision,
giving also notice of the charges against him (Article 415 bis). A request is then
formulated for the judge of the preliminary hearing (GUP) to set up the trial (Article
416 CPP). At this point, the victim is informed of the date of the first hearing—20
days before a trial requiring a preliminary hearing, and 60 days before if a pr e-trial
hearing is not required (Article 419 CPP). The victim cannot influence the content
of the charges as notified to the accused.
19.
The rights of the victim at this stage ha ve been examined in the previous section.
d)
20.
What are the rights available to the alleged victims in relation to the trial?
The means by which victims can influence the conduct of the investigation have been
examined in the above section dedicated to the rights of the victims at this stage.
21.
Pre-trial detention: Alleged victims can exercise their general right to file pleadings
and provide an indication of relevant evidence pursuant to Article 90 CPP in the
context of decisions on pre-trial detention. Following a recent legislative amendment,
a number of measures can be taken at this stage in relation to domestic violence
offences (see infra para. 42). However, Article 299 CPP—which was amended by the
same act—now prescribes a duty to communicate any modification or withdrawal of
precautionary measures (including pre -trial detention) to the victim of offences
‘committed with violence against the bodily integrity’. This duty is directed at
enhancing the participation of victims in these decisions and was originally
introduced in combination with the provisions on domestic violence. However, the
broad formulation of the new norms has made unclear whether this duty exist in
broader terms. Recent decisions on the point are contradictory. 15
22.
The rights of the victim during the investigations have been examined above.
23.
Rights of the victim at trial: Following the conclusion of the investigat ion phase,
the rights of the victim as such become less and less significant. This is evident since
See Giovanni Zaccaro, Revoca o sostituzione della misura cautelare e coinvolgimento della persona offesa. Ambito di applicazione
del novellato art. 299 cpp, at http://www.questionegiustizia.it/articolo/revoca-o-sostituzione-della-misura-cautelare-ecoi_22-01-2014.php (25 March 2015).
15
the preliminary hearing where the GUP decides on the confirmation of the charges.
The victim as such has only the right to be informed of the date of the he aring, to
access the case-file, and make copy of the relevant documents (Article 419 CPP and
Article 131 disp.att.). The ‘mere’ victim cannot take part in the preliminary hearing .
This is due to the fact that, starting from this moment, the victim wh o is also injured
by the crime—as it is normally the case—can decide to enter the proceedings as parte
civile by bringing his civil claims against the accused. The parte civile is entrusted with
almost all the prerogatives that would be reasonably exercised by the victim—whose
activities in the investigation phase are therefore ‘instrumental’ to this natural
evolution. 16 However, civil claims cannot be brought in criminal proceedings where
the accused is a minor, pursuant to Article 10 of the D.P.R. 22 settembre 1988, n. 448.
24.
The injured person becomes a parte civile by filing a declaration pursuant to Article
78 CPP. This declaration must be filed either during the preliminary hearing or at
the first hearing at the beginning of the trial; if the action is brought after this term,
the parte civile may not make use of the possibility of presenting witnesses, experts or
technical advisors. The declaration must include a formal indication of all the
subjective and objective requirements of the civil claim against the accused and may
be both filed with the registry of the judge who has jurisdiction or given directly in
court. Finally, the declaration must contain the signature of the legal counsel of the
parte civile; in order to exercise the relevant rights, the parte civile must therefore
receive legal assistance. If the parte civile meets the condition set out in the Testo Unico
delle Spese di Giustizia in relation to his income, he is entitled to receive free legal aid.
25.
Through his legal counsel, the parte civile can exercise a number of rights during the
trial. His activities are normally situated after the presentation of the case by the
prosecutor and prior to the beginning of the defence case, or in any case after the
prosecutor has intervened and before the couns el of the accused takes the floor.
These include:
16
-
Delivering oral statement during the preliminary hearing (Article 421 CPP);
-
Presenting evidence at trial (Articles 493 and 496 CPP);
-
Calling witnesses (Article 497 CPP);
-
Cross-examining witnesses called by other parties (Article 498 (2) CPP) ;
-
Delivering closing arguments (Article 523 CPP) .
Spangher, 157.
In the Italian system, the concept of objections is lacking, therefore the parte civile
does not have the right to raise them. As to the support to the victim during trial,
the same remarks made above about the existence of a gap in the investigation phase
remain valid at the trial stage. However, thanks to a decision of the Constitutional
Court in 2007, if a parte civile benefits from free legal aid and does not speak fluent
Italian, he has the right to appoint an interpreter free of charge, similarly to what is
recognized to the accused under Article 102 of the Testo Unico delle Spese di Giustizia . 17
26.
When a victim is called to testify in court, regardless of being a parte civile, the judge
can order that the testimony be given ‘behind closed doors ’—which means that the
only people authorized to remain in the courtroom are thos e who are entitled to
intervene—when it deems this measure necessary to ensure the safety of the witness
(Article 472(2) CPP). The testimony of the individuals who have been admitted to a
witness protection programme can also be obtained via videoconference (Article
147bis disp.att.). In this case, an assistant of the court must accompany the witness,
confirm his identity, and remain with him during the acquisition of the testimony.
e)
At the time of sentencing, are there any provisions for victim impact statements?
Is the reward of compensation allowed at sentencing? If yes, who bears this cost?
Are there any other forms of rehabilitation guaranteed to AVs? Do these depend on
a finding of guilt?
27.
Victim impact statements: The Italian system contains no provisions with regard
to victim impact statements.
28.
Compensation: If a victim has joined the proceedings as parte civile, his civil claims
will be decided together with the decision on the criminal responsibility of the
accused. Throughout the proceedings, the counsel for the parte civile must prove the
damages that his client has suffered as a consequence of the crime. In the concluding
statement, the counsel must also specify the amount of compensation required from
the offender in a written pleading (Article 523(2) CPP). The award of compensation
depends on the finding of guilt of the accused; provided this, the judge can order the
convicted person to pay compensation for the harm caused to the parte civile and for
the expenses that the latter has incurred in during the proceedings (Articles 538 and
541 CPP). If the amount of the compensation cannot be determined at that stage,
the judge can merely recognize the existence of such obligation and direct the parte
civile to seek its determination before a civil court (Article 539 CPP). However, if the
17
C. Cost., sent. n. 254 del 6 luglio 2007.
accused is found not guilty, the judge may order that the parte civile pay compensation
for the expenses that the accused has met while defending himself against the civil
claims (Article 541 CPP).
29.
Rehabilitation: The only form of reparation other than eco nomic compensation that
is recognized to the victim of the crime is the publication of the final judgement.
This is ordered by the judge upon request of the parte civile and must be paid for by
the convicted person (Article 543 CPP). Other forms of rehabilitation for the victims
are lacking.
f)
30.
What rights rest with the alleged victim in respect of the appeal?
The victim of a crime cannot appeal a decision on the criminal responsibility of an
accused because he is not a formal part to the proceedings. All he is left with is the
possibility to request that the prosecutor promote his own appeal. The prosecutor is
not bound to comply with such a request, but this not being the case, he must
communicate the reasons behind his rejection (Article 572 CPP).
31.
The parte civile can appeal against the acquittal decision, but only in relation to the
civil claims (Article 575 CPP). This appeal must be lodged within 30 or 45 days,
depending on the complexity of the case (Article 585 CPP). If the Appeal Court
uphold the request of the parte civile and the prosecutor has not filed an appeal on
the criminal matters, the Court can reverse the previous decision only in relation to
the civil aspects. In this case, the Court directs the parte civile to bring his claim before
the civil judge in order to determine the amount of the compensation due to him
(Article 622 CPP).
32.
The individual who becomes parte civile before the court of first instance maintains
this status also during the subsequent appellate proceedings (Article 76(2) CPP). The
parte civile therefore preserves the passive rights that he has held at the previous stage,
but his ability to introduce new evidence is limited by the general rules on appellate
proceedings.
g)
Are there any rights available to the alleged victim when it comes to enforcement?
33. After the final judgment, victims have no further prerogative in relation to its
enforcement. There is no system in place to ensure information to the victim after the
sentencing of the offender, nor is the victim entitled to be informed of the convicted
person’s release. No interp retation or translation of documents free of charge, no
further access to any documents and no further protection are provided to victims,
regardless of their previous role in the proceedings. In particular, they are not entitled
to access the proceedings before the Supervisory Magistrate in charge of controlling
the imprisonment regime of the convicted person. The only occasion where the victim
has some relevance in the context of enforcement is where the offender is placed under
the supervision of a social worker. Eligible inmates are indeed given a series of
‘behavioural’ orders by the Supervisory Courts. These orders may demand, where
appropriate, that the convicted person take positive action for the benefit of the
victim. 18
h)
Are there any other rights that facilitate alleged victim participation not covered in
the above chapter?
34.
All the relevant rights have been covered in the previous sections.
QUESTION 2: ARE THERE ANY SPECIAL CATEGORIES OF
ALLEGED VICTIMS (EG CHILD WITNESSES, WITNESSES WITH
INTELLECTUAL OR MENTAL DISABILITY, WITNESSES ALLEGING
SEXUAL ABUSE ETC) TO WHOM THE ABOVE RIGHTS ARE
AVAILABLE? IF YES, DEFINE THOSE CATEGORIES AND ANSWER
THE ABOVE QUESTION IN RESPECT OF EACH CATEGORY.
a)
35.
Child victims
The minors who are 14-year-old or younger exercise their victim rights through their
parents or guardians. The minors who are older than 14 can exercise their rights
directly, but parents and guardians maintain their rights to act on behalf of the minor,
even where he has objected to their intervention (Articles 90(2) CPP and 120 CP) .
36.
Numerous indications as to how to deal with child victims of sexual abuse can be
found in a collection of guidelines drafted by a joint commission of lawyers, judges,
professors, phycologists, neuroscience experts, and representatives of the police
forces. This document is known as Carta di Noto and its latest version was approved
on 12 June 2011.
37.
Measures to be taken during the investigation phase: where the minor is the
victim of child abuse, sex offences, juvenile prostitution, and enslavement, his
testimony can be acquired at any time through a specific pre -trial hearing (incidente
probatorio) pursuant to Article 392(1bis) CPP. This particular hearing seeks to protect
the child from the risk of additional harm caused by the traumatic contact with the
18
Article 47 of the Legge 26 luglio 1975 n. 354.
public authorities, in line with the guideline no. 15 of the Carta di Noto. To this end,
the investigative judge that order s the acquisition of the testimony can set out
particular modalities through which the deposition is to be acquired. In particular,
the judge can order that the examination take place outside the courtroom, in
specialised facilities or at the place where the child lives. In this case, the deposition
must be recorded in full by means of A/V devices (Article 398(5 bis) CPP). This
‘protected’ deposition has been extended by the Constitutional Court to the
examination of all the minors younger than 16, regardless of the crime of which they
have allegedly been the victims. 19
38.
Measures to be taken at trial: The examination of any minor at trial is conducted
by the president of the bench, upon requests and indications coming from the parties.
The parties cannot, however, examine the minor directly. In order to carry out this
inquiry, the judge can avail himself of a member of the child’s family or an expert
psychologist. Upon request by one of the parties, the testimony can be acquired
according to the modalities of the ‘protected’ pre -trial hearing (Article 498 CPP).
Moreover, when the victim is a minor, the trial is always held ‘behind close doors’
for its entire duration (Article 472(3 bis) CPP).
39.
All other victim rights are regulated by the general rules outlined above .
b)
Victims of sexual offences and domestic violence
40.
When the victim is also a minor, see section above .
41.
By virtue of the Decreto Legge 14 agosto 2013, n. 93 as amended by the Legge 15 ottobre
2013, n. 119, the victims of domestic abuse, stalking, and FGMs are entitled to receive
free legal aid regardless of their economic condition and income.
42.
Measures to be taken during the investigation phase: The testimony of the victim
of serious sexual offences can be acquired by means of the special pre -trial hearing
(incidente probatorio) pursuant to Article 392(1bis) CPP. Special precautionary measures
can also be taken in these circumstances, such as restraining orders that prevent the
suspect from living in the house that he shares with the victim or accessing places
that the victim visits on a regular basis. The investigative judge can also order the
suspect of these offences to pay a periodic allowance to th e victim or his close
relatives (Article 282bis CPP).
43.
Measures to be taken at trial: The victim of serious sexual offences can request th e
judge that the trial be held in whole or part ‘behind close doors’ (Article 472(3bis)
19
C.Cost., sent. 9 maggio 2001, n. 114.
CPP). In this context, no question on the private life or sexuality of the victim is
permissible if not necessary to prove the facts of the case. Moreover, according to
article 498 (4ter) CPP, the examination of victims of sexual violence, human
trafficking, and stalking offences may take place pursuant to the adoption of a
number of measures aimed at hiding the voice and face of the victim.
Videoconference, however, is still not a permissible means through which provide
testimony in this case.
44.
All other victim rights are regulated by the general rules outlined above .
c)
45.
Victims of mafia and terrorism
The right to participate in the proceedings are regulated accor ding to the general
rules.
46.
Since in cases of mafia and terrorism crimes it is unlikely, or difficult, to secure
compensation from the offender, victims can apply for compensation to state -run
Solidarity Funds. The victims must have brought their civil clai ms (as parte civile) in
a judgement against an accused which was subsequently convicted for one of these
offences. If they so did, the Legge 22 dicembre 1999, n. 512 and Legge 3 agosto 2004, n.
206 entitles victims of mafia and terrorism offences, respecti vely, to apply for a
periodical allowance proportionate to the harm they suffered.
CONCLUSION
-
The Italian system allows victims to participate in the proceedings to various degrees,
depending on the stage (investigation or trial) and on the qualification of the victim as
a parte civile;
-
Victims of the crime can file a complaint before the prosecuto r or the police forces,
which in minor offences is a necessary condition for the initiation of criminal
proceedings;
-
Private prosecution is only permissible as an option in minor proceedings before the
justice of the peace;
-
There is a duty to investigate all the complaints brought to the attention of the
authorities;
-
Public officers who fail to report a notitia criminis are liable of criminal prosecution a nd
disciplinary responsibility;
-
Victims have the right to file pleadings and provide an indication of relevant evidence
at any stage of the proceedings;
-
Victims have an important role during the investigations, in that the oversee and
prompt the activity of the prosecutor;
-
In this phase, victims receive a number of communication and can promote the
acquisition of evidence;
-
Victims can be assisted by a legal counsel and are entitled to receive legal aid if they
meet the conditions;
-
Support services for the victims are al most entirely lacking;
-
Victims can be admitted to protection programmes if their sharing of information puts
them or their families in danger;
-
If the prosecutor decides to close a case without trial, he must inform the victim who,
in turn, can appeal this determinati on to the investigative judge;
-
Victims of crimes against bodily integrity are informed of the decision to amend or
withdraw pre-trial detention measures;
-
At the first trial hearing, the victim can file a declaration to become parte civile;
-
Through his legal counsel, the parte civile can exercise a great variety of rights during
trial;
-
The victim can testify in court and special measures can be taken to ensure his safety;
-
The parte civile can ask compensation in relation to the damages suffered by the crime ,
which is awarded upon finding of guilt;
-
The parte civile can appeal a decision only with regard to the civil claims —otherwise,
victims must request the prosecutor to appeal the criminal section of the decision;
-
Victims have no rights in relation to the enforcement of a judgement;
-
Child victims are entitled to special protective measures when they give their testimony
at both pre-trial and trial phase—the relevant exam can take place outside the
courtroom;
-
Victims of serious sexual offences are entitle d to receive legal aid regardless of their
income;
-
Victims of domestic abuse can obtain protective measures which include restraining
orders;
-
Testimonies of victims of sexual violence must safeguard their private life;
-
Victims of mafia and terrorism can benefit from compensation from state -run
solidarity funds.