Defendants (criminal proceedings)


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A. If I am a foreign national, does that affect the investigation?

Yes, essentially because some additional rights and guarantees are relevant (see also below).

B. What are the stages of an investigation?

i. Evidence-gathering stage/powers of investigators

The activities of the police in criminal investigations are provided for in Articles 347 to 357 of the Code of Criminal Procedure; the activities of the public prosecutor are governed by Articles 358 to 378 of the Code of Criminal Procedure.

ii. Police custody

Under Article 384 of the Code of Criminal Procedure, other than in flagrant cases - in which the criminal police carry out compulsory arrest or optional arrest of a suspect while in the act of committing an offence - where there are specific factors which, even in relation to the impossibility of identifying the suspect, suggest that the risk of absconding is well founded, the public prosecutor orders the provisional arrest or, before the public prosecutor has taken over the investigation, the criminal police carry out the provisional arrest on their own initiative of a person on serious suspicion of an offence for which the law imposes a sentence of life imprisonment or imprisonment of a minimum of two years and a maximum of six years, or of an offence involving weapons of war and explosives, or of an offence committed for the purposes of terrorism, including international terrorism, or the subversion of the democratic order.

iii. Questioning

The person under investigation, even if taken into custody or detained for another reason, participates voluntarily in the questioning, subject to the necessary safeguards to prevent the risk of absconding or violence; methods or techniques capable of influencing the freedom of self-determination or altering the ability to remember and assess the facts may not be used, even with the consent of the person questioned.

iv. Provisional custody

Pre-trial detention and other personal supervision measures are provided for in Articles 272 to 315 of the Code of Criminal Procedure. The system of personal supervision measures is governed by the principles of appropriateness and proportionality, on the basis of which, as a general rule, when ordering the measures the judge must take into account, on the one hand, the specific suitability of each measure in relation to the nature and degree of the precautionary requirements to be met in the specific case and, on the other, each measure must be proportionate to the magnitude of the facts and to the penalty which has been or may be imposed.

C. What are my rights during the investigation?

i. Am I entitled to an interpreter and translations?

Yes, in accordance with Article 143 of the Code of Criminal Procedure.

ii. What are my rights to information and access to the case-file?

In this regard, it should be noted, in general, that the notice of completion of the preliminary investigations notified to the suspect and their chosen defence counsel contains a brief statement of the facts in respect of which the proceedings are brought, the legal provisions which are alleged to have been infringed, and the date and place of the act, pointing out that the documents relating to the investigations carried out have been lodged with the public prosecutor's office and that the suspect and their counsel are entitled to inspect and take a copy of them; in addition, specific rules on the right to be informed and the right of access to documents in the case-file are laid down, in particular in relation to the conduct of the questioning or the imposition of a personal protective measure.

iii. Am I entitled to a lawyer and to inform a third party of my situation?

The suspect/accused person is entitled to appoint no more than two defence counsel; a suspect/accused person who has not appointed or has no defence counsel is assisted by an officially appointed counsel. Specific provisions including, for the person concerned, the right to be assisted by a representative, as long as readily available and suitable, apply to inspections and searches.

iv. Am I entitled to legal aid?

Yes, where the conditions laid down in the relevant provisions in force are met.

v. What is important to know regarding:

a. Presumption of innocence

Article 27 of the Italian Constitution provides that accused persons are not to be considered guilty until final judgment is delivered.

b. Right to remain silent and not to incriminate oneself

In this regard, it should be noted inter alia that, before questioning begins, persons must be informed that their statements may always be used against them and that - subject to the obligation to provide their particulars - they are entitled not to answer any questions, but the procedure will continue; failure to comply with these provisions renders any statements made by the person questioned unusable.

c. Burden of proof

In general, the burden of proof in respect of the facts relating to the indictment, criminality liability and determination of the penalty or preventive measure lies with the public prosecutor.

vi. What are the specific safeguards for minors?

The rules relating to criminal proceedings against children and young people are set out in Presidential Decree No 448 of 22 September 1988 which, in general, sets out a system more beneficial to the suspect/accused person, in both the preliminary investigations and the court proceedings.

vii. What are the specific safeguards for vulnerable people?

As a general rule, the ordinary rules on the protection of the relevant individual rights apply.

D. What are the legal time limits of the investigations?

In general, if the public prosecutor does not request dismissal of the case, it must bring criminal proceedings within six months of the date on which the name of the person to whom the offence is attributed is entered in the register of reported offences; this deadline is extended to one year for any of the offences set out in Article 407(2)(a) of the Code of Criminal Procedure (organised crime, terrorism, offences relating to firearms or drugs and other serious offences). In any event, the public prosecutor may, before the deadline expires, ask the judge responsible for the preliminary investigations to extend the period referred to above on justified grounds; further extensions may, as a rule, be requested by the public prosecutor in cases of particularly complex investigations or where it is objectively impossible to conclude them within the extended period; any extension may be authorised by the judge responsible for the preliminary investigations for a period not exceeding six months. As a rule, the duration of preliminary investigations, also taking into account any extensions, may not however exceed 18 months. Nevertheless, the maximum duration is two years if the preliminary investigations concern the offences referred to in Article 407(2)(a), or in other limited specific cases laid down by law.

E. What measures are taken at the investigation stage, including alternatives to provisional custody and possibilities for transfer to the home state (European Supervision Order)?

In addition to pre-trial detention, the following coercive personal supervision measures may be imposed: prohibition on leaving the country, obligation to report to the criminal investigation police, removal from the family home, prohibition on going to places regularly attended by the victim, prohibition and obligation to reside at a specified address, house arrest, provisional detention in institutions with relaxed detention arrangements for mothers, provisional detention in a medical treatment facility.

Last update: 21/03/2023

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