The Italian Judicial System: an anomaly unto itself!

Italy’s justice system has long been one of the most dysfunctional in Europe, especially when it comes to putting away alleged mafia or white-collar criminals.

Prosecutors say it is all but impossible to reach a definitive sentence for a multitude of financial crimes within the prescribed time frame, which is seldom more than eight years. That’s partly because legal cases take so long in Italy. But it is also because Italy is unique in Europe, even among the other civil law systems:

Its statute of limitations starts from the moment an alleged crime is supposed to have been committed rather than from the point it is discovered, and the time limit is not extended when a defendant is put under investigation, indicted or judged. No other country has both rules!

In 1988 the Italian criminal process underwent substantial reform modeled on what done in common-law jurisdictions to bring Italy’s outdated inquisitorial system more in line with modern legal thought and practice. Indeed, Italy’s criminal law judicial system and process was rooted in long-standing legal tradition heavily biased in favor of the state’s virtually unlimited financial resources (if compared to those of individual suspects) and absolute monopoly of law enforcement, including police, public prosecutors and judges. What the reform did or tried to do was to increase those institutions that make a trial “adversarial” as opposed to “inquisitorial” among the “parties” (to a trial), i.e., the public prosecutor, the accused or defendant and judge. Today such “parties” thanks to the reform have theoretically been placed on an equal footing with equal access to the evidence gathered by the police and prosecution.

Notwithstanding the reform of 1988, Italy remains light years away not only from common-law criminal trials but from civil law criminal trials of other EU jurisdictions as well! Despite the Italian Constitution, heralded by comic Roberto Benigni as the “the most beautiful in the World” the concept of a speedy trial is virtually unknown. The Constitution, which Benigni swears by, talks of a “reasonable duration” (art. 111). That, in a country where case law does not have the same place, authority or purpose as it does in common-law jurisdictions and where the principle of stare decisis is non-esistant, “reasonable duration” is practically meaningless, as are other institutions known to Italian law but either defined differently or applied “loosely” as opposed to “strictly” such as, habeas corpus, ne bis in idem (latin for double jeopardy) or what under Italian law constitutes a legal search and seizure by the police, just to name a few.

Having said that, what does exist much like in common-law or other civil law jurisdictions are “statutes of limitations” known in Italian by the term “prescrizione” (i.e., prescription [of crimes]. Despite generous time limits provided as a matter of Italian law in respect of more serious crimes known as “delitti” (i.e., felonies), the slow pace of the Italian justice system winds-up favoring defendants accused of complex mafia-like and white-collar, financial crimes that often take more than eight years to “try”. Here, one must remember that in Italy a judgement does not become final or “res-judicata” until all three instances have been exhausted, i.e., “trial, appeal and a second appeal to the highest criminal court.” Having constitutionalized a citizen’s right to “three degrees of jurisdiction” effectively means that what constitutes a trial in this Country includes a first appeal and a second appeal to the highest court, which have become practically automatic. This explains why civil law cases can last a lifetime. The criminal justice system is quicker but ten years or better are not unusual in the case of complex felonies. It is probably for this reason that Italy’s Government for Change proposes freezing (or suspending) the statute of limitations at the end of the “trial” or processo di prima istanza upon the Court’s issuance of its first judgement.

In common-law jurisdictions, the first, and often only instance, is the trial. Once a court starts a proceeding such court remains in session for the duration until a final judgement is rendered, which judgement is said to be “dispositive”, meaning the judgement becomes immediately enforceable. With that an accused begins to serve his time if found guilty. And, if found not guilty, the person is immediately set free and such facts (determined in the verdict rendered not by a court but by a jury of twelve peers) are almost impossible to overturn, especially a verdict of not guilty!

Defendants found guilty immediately begin serving their sentence and, if entitled thereto, may lodge an appeal. Defendants are the only ones who may appeal a verdict of guilty. Public prosecutors may not appeal a guilty verdict, for example, to increase the jail-term decided by the trial judge, as in civil law countries, much less verdicts of “not guilty”. Common-law systems bar public prosecutors from appealing verdicts of not guilty for lack of interest and verdicts of “guilty” because barred by the principle of double jeopardy strictly applied. Remember in the Italian system double jeopardy (of Roman origin) exists but is neither defined, nor applied strictly but relatively, which means, ‘as conveniently as possible for the state’, hence, the lesser degree of impartiality and fairness in Italian criminal proceedings.

There are those that would like to confuse the ideas of the Government of Change. These people know or should know that even in comm-law jurisdictions there are three (possible) known degrees of jurisdiction (the trial, an appeal and a possible second appeal to a higher or highest court equivalent to the Italian Court of Cassations). The difference is that in common-law jurisdictions the trial or processo di primo grado is often dispositive and final, lightning quick by Italian standards. The Government for Change seems intent on completing the reform of the Italian criminal law process begun in 1988. But how?

Well, it may take changing the Constitution and a number of legal definitions and procedures and of course, key to the whole conundrum is a redefining of when the statutes of limitations begins to toll. No longer from the time a crime is presumed to have been committed to when such crime is effectively discovered to have been committed, for example, as ascertained by an official judicial act of accusation, indictment or arraignment as is the case in France. Furthermore, in Italy the statute of limitations are not suspended when an accused is investigated, arraigned or judged.

What can Italy do to remedy the situation? First, all efforts should be concentrated in the trial (of first instance), which judgement should remain firm in each successive phase of the proceeding, as least as far as the facts ascertained in the verdict of “guilty” or “not guilty”. Therefore, other than for the aforesaid “facts” pertaining to the defendant’s “guilt” or “innocence”, the appeal should only concern itself with possible error(s). If the purpose is to accelerate the time of Italian trials without any loss in accuracy, first instance Italian judges presiding the trial or processo di primo grado will need to remain “in session” until a final judgement is rendered, meaning once convened the hearing will continue every day for as many weeks as required to arrive at a final judgement. This will mean a major overhaul of current procedures and logistics. In fact one of the many aspects that distinguishes Italian proceedings from fellow proceedings in other civil law jurisdictions is the excessive fragmentation. If a civil law trial can be defined as a series of fragmented hearings as opposed to the continuous uninterrupted hearing of common-law trials, the Italian judge can and often does set hearings at intervals of one year. Obviously, such once-a-year hearings often lasting an hour or two, makes difficult the collection and production of documentary evidence, let alone remembering events by “witnesses” after so much time has elapsed. Another problem is Italian judges are subject to frequent changes. The end result is judges are rarely able to acquire a full and complete command of complicated cases.

The above changes would help make the Italian system a better one for honest citizens that do not have the economic resources to continue the uneven battle with the state all the way to the third and final phase of the present Italian criminal process, which by definition includes two appeals beyond the trial. Even now the length of Italian processes are unbearably long for creditors in commercial cases and for honest citizens caught up in the maze of Italian criminal proceedings.

If some or all of the above changes could be enacted, Italy would become more intelligible for other civil and common-law jurisdictions. Perhaps then the many friends of Italy around the World might consider once again investing in this amazing Country, helping the Government for Change to increase Italian GNP and to make Italy’s mammoth national debt manageable again!