A Comparative Analysis of Pre-Trial Procedure in Europe: The Search for an Ideal Model
Pre-trial Procedure in ItalyFrancesco Rossı, Giulia Ducolı, Giuseppe Schena
The Italian Constitution obliges public prosecutors to conduct preliminary investigations to verify the validity of the notitiae criminis. Whenever the verification is positive, prosecution is mandatory regardless of any assessment of convenience and/or expediency. Mandatory prosecution under Article 112 of the Constitution is part of the DNA of the Italian criminal justice system, along with other fundamental principles such as equality, procedural legality, presumption of innocence, fair trial and ‘good administration’. However, mandatory prosecution is put to the test when being implemented due to the heavy workloads public prosecutors must handle. Prosecutors’ offices use guidelines, criteria and practices which end up mitigating mandatory prosecution at law enforcement level. Moreover, for minor offences, the Italian legislation grants the victim the power to influence the activity of the public prosecutor through the filing of a complaint. Finally, in order to prevent miscarriages of justice caused by prosecutorial choices, under the Italian Code of Criminal Procedure the victim is entitled to exercise specific supervising powers with regard to the judicial decisions of the public prosecutor.
This chapter provides an overview of the preliminary phase of the Italian criminal procedure, the fundamental principles and rules governing it, and the main issues that arise from a practical standpoint. The goal is to identify the characteristic features of the preliminary phase from both a normative and applicative perspective, paying particular attention to the work of public prosecutor’s offices. The goal is not only to provide an overview of the theoretical foundations of the Italian procedural model, but also to pinpoint the virtues and flaws of the exercise of the public prosecutor’s powers.