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Procedure, An [article]
Temple Law Review
62 Temp. L. Rev. 1211 (1989)
Amodio, Ennio; Selvaggi, Eugenio;
+(,121/,1(
Citation: 62 Temp. L. Rev. 1211 1989
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AN ACCUSATORIAL SYSTEM IN A CIVIL LAW
COUNTRY: THE 1988 ITALIAN CODE OF
CRIMINAL PROCEDURE
Ennio Amodio*
Eugenio Selvaggi**
1211
1212 TEMPLE LAW REVIEW [Vol. 62
Precisely because of such a critical approach, the new Italian criminal pro-
cedure has by no means resulted in a mere transplantation of Anglo-American
patterns. Any procedural institutions that the Italian drafters borrowed from
British or American models were modified and adjusted to the continental tradi-
tion, which has retained substantial weight in the new Code. In particular, some
of the most significant peculiarities of the nonadversary system have been pre-
served to such an extent that it can be fairly stated that the new Italian criminal
process exhibits an accusatorial soul in a European body.
This article attempts to focus on the outcome of this fascinating merger of
two traditions. To illustrate how the 1988 Italian Code stands out as a historical
turning point in the headway towards the adversary system, we need to describe
the inquisitorial criminal procedure as administered under the repealed 1930
Code.
The Italian system under the 1930 Code should be conveniently set in the
European context, as it was a reflection of the essential features of the continen-
tal criminal procedure patterned after the French code d'instruction criminelle of
1808, from which Germany also borrowed her own procedural framework.
Such a review will be equally useful to help grasp the extent to which the inquisi-
torial legacy from past historical occurrences has been screened and strained in
other European countries.
This subject will be discussed here in three parts. First, an outline of the
Italian inquisitorial criminal proceedings will be presented in contrast with dif-
ferent European systems (a comparison among civil law countries) in sections II
and III of this article. The peculiarities of the 1988 Italian code will be pointed
out in contrast with the structure of the 1930 inquisitorial pattern (a comparison
in domestic history) in sections IV and V. Finally, the procedural legislation
recently enacted in Italy will be outlined in parallel with the American adversary
procedure (a comparison between adversary patterns) in section VI.
This three-tier approach will certainly add some complexity to our reason-
ing. Yet, such an overview will hopefully help the American reader, who may
be willing to have a better look at the differences between the implications of the
American criminal process and the potentials of a civil law system like the one
that has been just set up in Italy. Unquestionably, one of the most important
goals of such a comparative approach is to disclose the reasons and roots of an
otherwise unexplained diversity of procedural choices.
the inquisitorial pattern, whereas the criminal process in common law countries
is fashioned after the accusatorial tradition.
No doubt, the system implemented in Italy under the 1930 Code reflected
the typical inquisitorial model. The pretrial examining phase (istruzione)
showed a rather marked concentration of functions in the hands of one official.
Furthermore, it was a stage deeply interlocked with the adjudication
proceedings.
The entire inquisitorial setting was one in which the figure of the giudice
istruttore was responsible for inquiring into criminal cases, charging the accused
with offenses, and determining whether there was enough evidence to bind over
the defendant to appear before the court for trial. It is not by chance that the
American scholars use the term "investigating magistrate" to stress the concen-
trated roles this judicial officer has had to play since France first created thejuge
7
d'instruction, imported into Italy soon afterwards.
True, a prosecuting officer has always worked hand in hand with the inves-
tigating magistrate since the very beginning, when the figure of the public prose-
cutor was established under the 1808 code d'instruction criminelle (the
Napoleonic Code) in France. It is a figure also known to the Italian system in
the so-called "formal examination" (istruzioneformale), as it was known in the
Voruntersuchungpractice in the Federal Republic of Germany until 1974. Yet,
if we look beyond the law in the books to consider the law in action, the conti-
nental system in actual operation reveals the presence of a public prosecutor
who is almost entirely deprived of power vis-A-vis the investigating magistrate's
8
dominance.
The same was true of the role an Italian public prosecutor had to play
when, under the 1930 Code, he or she conducted an inquiry in the so-called
"summary examination' (istruzionesommaria). Here, we had a prosecuting of-
ficer who investigated and then, as a judge, made an assessment of findings is-
sued from his own inquiry. In this respect, the tendency to concentrate the
different functions of the pretrial phase in the hands of one official alone had no
equal in the rest of continental Europe. In France, the procureur de la Rdpub-
lique may conduct an enquete prdliminaireinto minor offenses (misdemeanors),
without, however, enjoying the powers accorded to the Italian public prosecutor
at the summary examining stage; in French prosecutorial investigations, a
search of premises and seizure can only be performed with the consent of the
7. See Mueller & Le Poole, The United States Commissioner Compared with the European In-
vestigating Magistrate, 10 CRiM. L.Q. 159 (1967-68).
8. AMODIO, Uguaglianzadelle armi nel processo, presunzione di innocenza e ruolo del giudice
istruttore, L'INDICE PEN. 237 (1981). The investigating magistrate also fully absorbs the accusatory
function of the public prosecutor in the French practice. See CHAMBON, LE JUGE D'INSTRUCTION
123 (1981).
1989] ITALIAN CODE 1215
case. '5 He or she may either order to open the trial (Eroffnungsbeschluss)or to
dismiss the case (Einstellung), although the latter solution appears to be
seldomly applied. 16
As for the concentration of roles, it should be remembered that the pretore
survived in Italy under the 1930 Code as an actual inquisitorial judge of old,
whose responsibility was to investigate and try minor offences in a combination
of prosecutorial and adjudicative functions. In fact, there was not even a prose-
cutor's office to take action before a pretore.
Over and above the many normative choices that are available, the entire
continental system of criminal procedure is beginning to exhibit a tendency to
separate these roles in practice. Thus, law enforcement bodies frequently prevail
even as a public prosecutor is formally responsible for the dnquete or the
Vorverfahren.
In summary, the concentration of functions in the hand of only one body,
tendentiously symbolic of the continental pattern in the pretrial phase, has been
corrected in two ways. First in the legislation, which requires the functions of
the investigating body to be separated from those of the judge sitting to screen
dossiers in the French and German systems. Then in legal practice, where the
public prosecutor is only involved in the charging process after the law enforce-
ment bodies have collected the relevant evidentiary elements.
The other of the two features, identified above as peculiar to the pretrial
stage in the Italian criminal procedure, equally applies to every continental sys-
tem. In France and West Germany, the preliminary investigation and the trial
procedure are unbroken links in the same chain of activity. The stage before the
adjudication proceeding is already a form of trial, and becomes the trial as soon
as the investigatory work products of the public prosecutor, the magistrate, and
the police come together to form a dossier, a file which is made known to, and
reviewed by, the trier of fact, who makes an almost unlimited use of it in reach-
ing his decision. 17 This file provides the umbilical cord that joins the two phases
together into one body to the point that the adjudication exercise is "a trial of
the dossier, rather than of the accused" 18 because of the degenerations that have
come about in practice in both the Italian and French systems.
19. CODICE Dl PROCEDURA PENALE [C.P.P.] art. 405 (Italy). Hereinafter, references to arti-
cles of criminal process legislation are designed to point to sections of the 1988 Code of Criminal
Procedure, effective January 1, 1990.
20. C.P.P. art. 526.
21. Id. art. 431.
1218 TEMPLE LAW REVIEW [Vol. 62
tions by the accused, and the like. 22 Only the first of the two sections is handed
over to the trial judge who will review it before the hearing. The new legislation
requires the public prosecutor to keep the second section (the public prosecu-
tor's file) in his office, and to make it available to the defense attorney for
inspection.
When viewed in light of its basic principles, the working of the 1988 Code
of Criminal Procedure may look quite simple. The responsibility for prelimi-
nary investigations vests in the public prosecutor, who applies to an entirely new
23
judicial officer, the pretrial judge, to issue warrants of arrest or wiretapping.
Yet, the prosecutor retains authority to issue search warrants and orders for
holding and questioning suspects in the event that the police investigate major
offences and when there are reasonable grounds to believe the suspect might
flee. 24 As a general rule, the 1988 Code requires the police to operate under
specific orders from the prosecutor, and are only entitled to collect evidence on
their own motion until the prosecutor has taken over and issued his directions
25
for the inquiry.
The pretrial judge's position is crucial to the proper functioning of the new
system. Unlike the now superseded giudice istruttore, the investigating magis-
trate in the inquisitorial pattern, the new judge plays a passive role during the
preliminary investigations. The judge, in a strictly impartial position, supervises
the prosecution of the case at every crucial step.
The new Code requires the prosecutor to apply to the judge when he or she
wants to obtain an order to allow investigations to extend beyond the deadline
provided for under the law. 26 Moreover, the pretrial judge may permit either
the public prosecutor or the counsel for defense to examine promptly any wit-
ness whenever there are reasonable grounds to believe that the prospective wit-
ness might not be heard at trial because of illness or threats designed to prevent
him or her from appearing in court.2 7 This special procedure, called incidente
probatorio,is an anticipation of the trial itself, a piece of the adjudication stage
exceptionally taking place in the pretrial phase. Obviously, in such instance the
same law implemented in the courtroom, when the judge hears evidence as pro-
duced by direct and cross-examination of the witness, governs the anticipated
proof-taking process.
Finally, under the new Code the pretrial judge is responsible for determin-
ing whether or not probable cause exists for filing a criminal charge at the end of
the investigation. As a result, the prosecutor cannot dismiss a case on his or her
own authority, and may file a request for dismissal (archiviazione) only if the
prosecutor believes that there is inadequate evidence to pursue the case. Under
the constitutional rule of compulsory prosecution, 28 the judicial scrutiny of the
"trial on stipulated facts" 33 in that it allows the judge to rule about the case
upon findings from the preliminary investigations.
Obviously, the above alternative procedures in the new Italian system are
designed to reduce case load pressure. Undoubtedly, the new approach to a
trial-centered model will create a great deal of difficulty, because proof-taking
will be the parties' responsibility and they will have to produce evidence through
painstaking direct and cross-examination efforts. Unlike the trial hearing under
the 1930 Code, in which the judge had the lion's share of the responsibility to
conduct hasty examinations based on the "dossier," the adjudication will be
more time-consuming in the new system. The ultimate goal pursued by the au-
thors of the new Code has been to set the trial phase as the main step in the
procedure, while still providing for alternative procedures to bypass it in most
instances.
33. On this special procedure, see W. LAFAVE & J. ISRAEL, CRIMINAL PROCEDURE 822
(1985).
34. C.P.P. art. 190.
35. Id. art. 422.
1989] ITALIAN CODE 1221
than that deeply rooted in the Anglo-American tradition. But the new Code
retains the fundamental adversary character of the latter-the prosecution's evi-
dence (prove a carico) is distinguished from exculpatory evidence (prove a discar-
ico). 36 The burden of introducing evidence as well as the burden of persuasion
have become the cornerstones of the new Italian system of criminal justice.
It is worth observing that the adversary structure of the adjudication phase
in the new system does not force the judge to play an entirely passive role. The
new Code grants the fact-finder the power to question the witness after the par-
ties have completed their own examination. Furthermore, the judge retains the
authority to call witnesses on his or her own motion should an absolute need
arise to get additional evidence after the prosecution and the defense have closed
their cases. 37 It is clear, however, that these judicial powers are designed to
operate only if the parties fail to produce adequate evidence in presenting their
cases. In other words, the narrow scope of the fact-finder's active role surviving
in the new Code by no means impairs the full operation of the burden of evi-
dence placed on the prosecutor.
The progress towards the accusatorial model could not be extended beyond
the evidentiary domain. The rule of compulsory prosecution provided for under
the Italian Constitution has prevented the system from being entirely reshaped
in the area of party disposition of cases. The common law enables prosecutors
to dispose of the criminal action as they are free either to decline prosecution or
to enter a nolle prosequi after filing a charging document in court. Likewise,
defendants may enter a plea of guilty, thus discharging the prosecution from the
burden of proving the facts at issue.
Under the new Italian Code, however, it is still outside the power of the
parties to enter, jointly or severally, a disposal of a criminal case as if it were a
private law suit. This provides a link with the European tradition and a depar-
ture from the pure adversary model. Discretion in prosecuting or pleading
guilty has not been taken up, but the new Code does provide for party presenta-
tion of evidence. That is why one can talk about the 1988 Code of Criminal
Procedure as having an accusatorial soul in a continental body.
True, a tendency towards reducing the scope of the compulsory prosecution
rule clearly emerges from the new legislation. The pretrial alternative proce-
dures discussed above play a crucial role in allowing both the prosecution and
the defense to weigh heavily on the judicial disposition of cases. Neither settle-
ments reached under the new Italian bargaining process nor consent given by
the prosecutor and the defendant as to the pretrial summary adjudication pre-
vent the court from refusing to approve any such agreement. Yet, any decision
delivered in such special procedures leaves a very narrow scope for judicial scru-
tiny with respect to the way of adjudicating cases that is rooted in the continen-
tal criminal procedure. As a result, both prosecution and defense have acquired
a prominent function which is entirely unknown to the structure of the inquisi-
torial system.
We can now compare the new Italian system with the American criminal
justice process. Quite beyond any similarity to be found in the separation of the
investigative and supervisory roles, the pretrial phase under the 1988 Code ex-
hibits the same measure of difference when contrasted with the setting provided
for by pretrial law and practice in the United States. An Italian prosecutor will
be an investigator with, so to speak, "limited sovereignty," in that his or her
activity will be conducted under the pretrial judge's close supervision. At least
in the view of the drafters of the new Code, judicial control shall shield the
defendants, and shall protect their fundamental guarantees (such as freedom and
privacy in communicating), and procedural rights (such as a speedy trial and the
right not to be unduly sent to trial) against any law enforcement agency or
prosecutorial abuse. Furthermore, judicial scrutiny seeks to prevent any ille-
gally managed screening of complaints by the prosecutor- something which
would result in a violation of his duty to treat any citizen equally before the
38
law.
By contrast, the American police and prosecutors are much more free in
their actions. Even where law and practice provide for judicial supervision, as in
the issuance of warrants of arrest or case screening in preliminary hearings, it
works as an ineffective filter in actual operation. This is a result of the imbalance
of the forces colliding at the pretrial stage: the prosecutor is a strong actor who
plays his role before a weak magistrate, which envisages the charging process as
a task fully pertaining to the government.
In addition, it should be observed that, in the Italian criminal process, the
police and the prosecutor are restricted in their investigating activities by the
attendance of the defense attorney, whose scope is much broader than that
emerging from the American pretrial practice-the working of the exclusionary
rule notwithstanding. The suspect must be assisted by a counsel, whether re-
tained or assigned, during police interrogation even when he or she has not been
arrested or held for questioning. 39 The right to counsel's assistance is also pro-
vided for at some of the crucial stages of the investigations conducted by the
prosecutor, such as the interrogation of suspects or their confrontation with wit-
nesses or codefendants, 4° scientific tests carried out when any danger may result
from delayed action 41 or, finally, when physical examinations, searches, or
seizures are required.
It should be also remembered that, in the anticipated proof-taking process
before the pretrial judge, the new Code grants the counsel for the defense the
right of cross-examining any codefendants, experts appointed by the court, or
42
witnesses, even when called for identification parades.
As for the actual trial phase, the new Italian criminal process is patterned
after the Anglo-American model. The clear cut split between pretrial proce-
dures and adjudication has led to the adoption of a law of evidence framed on
the hearsay rule. As a general rule, out-of-court statements are inadmissible in
evidence and can be used for impeachment purposes only during direct or cross-
examination. 43 According to the common law tradition, an exception to the rule
is only provided when the party has been given a chance to cross-examine the
witness at the hearing for the anticipated proof-taking process. 44 At trial, even
statements the accused may have made out of court are inadmissible. Neverthe-
less, the new Code extends full probative value to statements the suspect made to
either the prosecutor or the pretrial judge after the prosecutor has impeached
45
the defendant in the courtroom.
The working of the hearsay rule will let the judge go fresh to trial. As a
consequence, an entirely new form of courtroom communication will develop in
actual operation. 46 Under the 1930 Code, the fact-finder received a great deal of
information about the case from the dossier, which provided him or her with a
logical plot of the facts in issue well in advance of the trial. By contrast, in the
new system, the opening speech and witness examination are the necessary tools
for informing the judge about facts with which he or she is not yet acquainted.
Like the common law criminal procedure, the 1988 Italian Code sets a privilege
to the parties with respect to the court as to the reconstruction of the facts mak-
ing up the alleged offence. The trier of fact relies on party presentation to get
acquainted with the case, as they know what the judge has to perceive promptly
in the courtroom.
A last point should be made, however, to show a marked difference between
the two systems. The Italian Code requires mandatory pretrial discovery of the
entire police and prosecution work product.47 Such an expansive defense dis-
covery reflects the purpose of rejecting the sporting theory of justice. To Italian
lawyers, a trial by surprise would be an unbearable violation of the constitu-
48
tional provision on due process of law.
In closing our discussion, a very plain conclusion may be drawn. The Ital-
ian criminal justice system has adopted a model which broadens the rights of the
accused and makes the prosecution's burden for conviction heavier. By con-
trast, the United States's criminal procedure seems to have gradually shifted in
these few years towards a slight erosion of its accusatorial structure to the extent
to which it accepts the risk of impairing the community's security in setting
suspects at liberty as a ground for pretrial detention or restricts the scope of
exclusionary rules.
Such strikingly different trends can be easily explained through compara-
tive tools. While the American procedural policy reacts to the excesses of adver-
sariness, the Italian reforming steps reflect a willingness to reject any
shortcomings that inquisitorial patterns framed on the judge's pivotal position
may bring about. It would be then mistaken for continentals to borrow correc-
tive tendencies from the American legal system instead of echoing the real
framework of its accusatorial structure.
In Italy, there was a need to cure the ailments of a "de-lawyerized" system
by developing a new scheme to compensate the parties for the powers deprived
of them so far by a dominant decisionmaker. Likewise, if the Americans are to
solve their own problems, they should look less at the inquisitorial patterns we
have rejected than at the new structure the 1988 Italian Code of Criminal Proce-
dure has envisaged, thus paving a European road to the accusatorial system.