The more laws the more offenders. ~Thomas Fuller, Gnomologia, 1732
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The basic statute in the field of substantive criminal law is the Criminal Code of 19 October 1930 (Codice Rocco). At the time it was passed, it contained all the characteristics of the criminal law philosophy of the time. The idea of deterrence had been prevalent and this could be seen in the system of penalties as well as in the ways the Code dealt with professional and habitual offenders. The Code has been amended several times. The amendment of 1975 broadened the possibilities of imposing probation; the amendment of 1981 decriminalized those minor offences that had been transferred to the category of petty offences or administrative infractions. The same amendment of the Code also introduced new substitutes for shortterm imprisonment. The amendment of 1984 modified the terms of pretrial detention and the competence of judges of first instance and appeal.
The basic operation and outline of the Italian criminal justice is determined primarily by the Code of Criminal Procedure enacted in 1930. The Code has been amended several times. One major amendment was passed in 1955. The police are charged with preliminary investigation of alleged offences and detection of their perpetrators, including the collection and holding of evidence. The defence counsel has the right to be present when the suspect is being questioned by the police. The police are obliged to report to the judicial authorities all offences involving ex officio prosecution which come to their attention.
If a suspect is arrested the defence counsel must be present at any interrogation. However, according to a provision introduced in 1978, the participation of the defence counsel is not necessary when the continuation of the investigation requires the urgent interrogation of a suspect. In such a case the police prosecutor and the defence counsel must be notified. The statements of the suspect may not be minuted for use in judicial proceedings.
The police can remand a suspected person in custody for 48 hours. The judicial authority must be informed of the decision within this period. During the following 48 hours the judicial authority must interrogate the suspect and decide on the legality of the deprivation of liberty and on the need for custody pending trial. The public prosecutor is bound by the legality principle in the presentation of formal charges.
Judicial proceedings begin with a preliminary judicial investigation. In the case of flagrant offences, offences admitted by the suspect or demonstrated by clear evidence, the investigation is conducted by a magistrate of the public prosecutor's office ("istruzione sommaria"). In all other cases, the investigation is carried out by an investigating judge ("istruzione formale"). It is the public prosecutor who decides which of the two procedures is to be followed, but a suspect may request that the investigating judge undertake the preliminary enquiry. If the suspect is in custody, the investigation must be carried out by the investigating judge if, after 40 days, the public prosecutor has not asked for discharge or trial.
The 1930 Code of Criminal Procedure was inspired by the principle of secrecy, and therefore the presence of the defence counsel was not allowed in all judicial acts of investigation. In 1955 a law granted the defence counsel the right to be present at certain stages. An extension of the stages in which the right of defence must be assured followed over the next years due to the intervention of the Constitutional Court. Today, the defence counsel has the right to be present during the following stages: the interrogation of the suspect, enunciation of a judicial view or expert judgement, and search.
The provisions regulating pretrial detention have changed frequently. A law enacted in August 1984 has considerably shortened the maximum term allowable. According to this law, the maximum period of custody pending trial is fixed at 6 years for the most serious crimes (those carrying a minimum period of imprisonment of twenty years or life) and at 5 months for the less serious offences (those carrying a maximum of three years).
Within these periods of time, the appeal procedure (on question of fact) and the cassation procedure (on points of law) in addition to the new judgment after a cassation decision, must have been completed. Furthermore, the various phases of proceedings carry their own maxima. For example the judgment of the first instance must be pronounced within thirty days for the less serious crimes and within one and a half years for the most serious ones, the period being measured from the end of the judicial investigation. During investigation the judge may discontinue the proceedings and discharge the accused.
The minimum age of criminal responsibility is fourteen for minors and eighteen for adults. Between the ages fourteen and eighteen, the judge must establish whether the minor has reached a sufficient level of maturity to be considered responsible for his or her acts.
Because the Code of Criminal Procedure was enacted under different social and political conditions and it has often been amended, work was undertaken on a new draft during the 1970s. The new Code of Criminal Procedure has been passed and will come into force in October 1989. It will be designed to accord with the demands laid down by the Italian Constitution and relevant international agreements. It should guarantee greater rights to the defendant and transform the socalled mixed procedure into a primarily adversarial procedure.
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