Course Program
0. INTRODUCTION
Structure and mode of operation of the criminal proceeding; sources (National and European); models (inquisitorial and accusatorial).
1. THE BEGINNING OF THE CRIMINAL PROCEEDING: THE ACQUISITION OF A NOTITIA CRIMINIS.
Exploratory purpose of preliminary investigations.
Subjects of preliminary investigations: the Public Prosecutor and the criminal police; investigative activities conducted by the lawyer, especially after the reform by the law n. 397/2000; preliminary investigation judge's role.
Obligation of secrecy on investigative activities.
Notitia criminis: acquisition of a notitia criminis; report; medical report; register of notitiae criminis.
Notitia criminis and requirements for prosecution: report and complaint; other requirements for prosecution: petition for criminal proceedings, request for prosecution, authorisation to proceed.
2. INVESTIGATIVE ACTIVITIES
Activities upon initiative of criminal police: obligation to forward a notitia criminis; securing sources of evidence; identity check of the suspect and other persons; investigative questioning of the suspect and other types of investigative questioning; searches; gathering of parcels or mail; urgent checks of the scene, objects and persons; seizure; records of criminal police activities.
Activities off the Public Prosecutor: investigative activities on the facts and circumstances against the suspected person and in favour of him; technical ascertainments of the Public Prosecutor; informal identification of persons and objects; gathering information; questioning a person accused in joined proceedings; actions during which the lawyer has the right to be present; notice of investigation; notice to the suspect about his right of defence; spontaneus appearance before the Public Prosecutor and summons to appear; relations between different offices of the Public Prosecutor; relations between offices of the Public Prosecutor and of the criminal police (difference, in particular, between direct actions and delegated actions); coordination activities of the National Anti-Mafia Prosecutor.
Defence investigative activities: interview, taking of statements and information by the lawyer; request for documentation to the public administration; access to places; technical ascertainments by the lawyer; power of secrecy of the Public Prosecutor; preventive investigation; records of defence investigative activities.
3. GATHERING OF EVIDENCE DURING PRELIMINARY INVESTIGATIONS: SPECIAL EVIDENTIARY HEARING.
Cases of special evidentiary hearing; request of special evidentiary hearing; arguments; decisions on request for special evidentiary hearing; rules for the hearing; extension of the special evidentiary hearing; use at trial of evidence gathered during special evidentiary hearing; effectiveness of the special evidentiary hearing against the civil party.
4. LIMITATIONS TO PERSONAL FREEDOM DURING INVESTIGATIVE STAGE.
Nature and role of precautionary measures; general conditions of applicability of precautionary measures (serious indications of guilt and precautionary needs); principles of gradualness, suitability, proportionality; classification of precautionary measures (coercive measures and disqualifying measures).
Precautionary proceeding: request; order of the judge; enforcement requirements; questioning of the person subject to a personal precautionary measure; unsuccessful searches; absconding; calculation of the time limits of measures.
Expiration of precautionary measures: revocation and substitution of measures; expiration of measures due to the issuing of specific judgments; expiration of measures ordered for evidentiary purposes; expiration due to failure to question the person; expiration due to termination of time limits.
Appellate remedies de libertate: re-examination of orders directing a coercitive measure; appeal; appeal to the Court of Cassation.
Provisional application of a security measure.
Compensation for unfair detention.
Precautionary measures on property: conservative seizure; preventive seizure; appellate remedies.
Arrest in flagrante delicto and temporary detention: arrest; temporary detention of person suspected of a crime; urgent injunction to stay away from the family home; request and confirmation hearing.
5. CONCLUSION OF PRELIMINARY INVESTIGATIONS.
Maximum time limits of preliminary investigations.
Dropping the case: request to drop the case; formalities of the decisions of the judge on the request to drop the case (and so, formalities of the decisions of the judge: decrees, orders and judgments); opposition to the request to drop the case; dropping the case for tenuity of the fact; advocation; re-opening of investigation.
Notice to the suspect of the conclusion of preliminary investigations.
6. CRIMINAL PROSECUTION.
Concept of "criminal prosecution".
Features of prosecution: pubblicity, compulsorieness, no possibilities to withdraw, abstract nature.
Forms of commencement of criminal prosecution.
7. PRELIMINARY HEARING.
Request for committal to trial.
Nature and role of preliminary hearing.
Development of preliminary hearing: setting of the hearing; introductive actions; joining of the parties, in absentia proceedings of the accused; impediment and lack of knowledge of the proceeding (with particular regard to the rules before and after law n. 67/2014); debate; order to integrate investigations; supplementary evidentiary activities by the judge; changes to the accusation; judgment of no ground to proceed; decree for committal to trial; complementary investigative activities by the Public Prosecutor and the lawyer; principle of the double dossier and production of the trial dossier.
Preliminary hearing as the stage to choose special proceedings.
8. SPECIAL PROCEEDINGS
Summary trial procedure.
Application of punishment upon request of the parties.
Direct Trial.
Immediate Trial.
Proceedings by decree of conviction.
Probation.
9. TRIAL.
The judge: jurisdiction and competence; unification and separation of trials; lack of jurisdiction and lack of competence; conflicts of jurisdiction and competence; incompatibility, abstention and recusal; transfer for trial.
Private parties: accused person; civil party; person with civil liability and person with civil liability for financial penalties.
Victim; the victim after d.lgs. n. 212 del 2015; organisations and associations representing the interests affected by the offence.
The role of the lawyer.
Physiology of the judge's acts: formality of acts; records of acts; translation of documents; the role of the interpreter; service; time limits.
Pathologies of the acts of the proceeding: inadmissibility, exclusion, expiry, nullity.
Actions prior to trial: urgent actions; lists concerning witnesses, experts, technical consultant and persons referred to in article 210; dismissal prior to trial.
Actions introducing the trial: verification that all parties are regularly present; preliminary issues.
Evidentiary proceeding: introductive presentation and requests for evidence; admission of evidence; evaluation of evidence; the principle of free evaluation.
Static part about evidence: general provisions (facts in issue; moral freedom; evidence not regulated by law; right to evidence; unlawfully gathered evidence; evaluation of evidence); means of evidence (testimony, examination of the parties, confrontations, formal identifications, judicial simulations, expert evidence, documentary evidence); means for obtaining evidence (inspections, searches, seizures, interceptions).
Scientific evidence.
Dinamic part concerning evidence: evidentiary turns; cross examination; challenging witness statements; powers of the judge on the examination of witnesses and private parties; readings.
The special figure of collaborators of justice.
New accusations: changes to the accusation; correlation between accusation and judgment.
Final debate.
Judgment: immediacy of deliberation; evidence for the purpose of deliberation; judgment of dismissal; judgment of conviction; decision on civil issues; requirements of the judgment; publication and filing of the judgment.
Proceedings before a single judge
10. APPELLATE REMEDIES.
General rules: appellate remedy by the Public Prosecutor, the accused, the civil party and the victim, for civil interests only; form of appellate remedies; time limits for appellate remedies; appellate remedy extension; inadmissibility of the appellate remedy.
Ordinary appellate remedies: appeal and appeal to the Court of Cassation.
Extraordinary appellate remedies: extraordinary appeal in Cassation due to a clerical or factual error; recission of res iudicata and revision.
11. PRINCIPLES ABOUT ENFORCEMENT.
Res iudicata: irrevocability of judgements and criminal decrees; “ne bis in idem”; enforceability of criminal judgments and decrees; effects of the criminal judgment in civil, administrative and disciplinary trials.
Enforcement of judgments: functions of the Public Prosecutor; enforcement of custodial penalties; calculation of precautionary detention and penalties served without judgement; enforcement of security measures; enforcement of decisions of the Supervisory Penitentiary judge; enforcement of financial penalties, enforcement of substitute sanctions, accessory penalties and of other financial penalties.
Enforcement proceeding: judge with competence; enforcement procedure; issues concerning the enforceable decision; revocation of conditional suspension; application of the rules on the concurrent and continued offences; granting amnesty or pardon.
Proceeding of supervision: territorial competence of the Supervisory Penitentiary Magistrate; issues raised before the Supervisory Penitentiary Magistrate.
An introduction to criminal record office and costs.
