Key Takeaways

  • The Italian criminal justice system is governed primarily by the Codice Rocco and the Code of Criminal Procedure, both extensively amended over time.
  • Arrest procedures allow detention for 48 hours before judicial review, with rights for defense counsel, though urgent interrogations may occur without them.
  • Judicial proceedings involve either summary or formal investigations depending on the evidence, with evolving defense rights recognized by the Constitutional Court.
  • Pretrial detention has strict maximum time limits—up to 6 years for the most serious crimes—with deadlines for trial and appeals.
  • The age of criminal responsibility begins at 14, with special assessment for minors between 14–18.
  • Italy’s court structure is unified, headed by the Court of Cassation, with judges and prosecutors belonging to the same civil service.
  • Defendants benefit from constitutional guarantees—fair trial rights, prohibition of special courts, and protection under international agreements.
  • Investigation and prosecution are handled by public prosecutors, but judges act as safeguards to protect defendants’ rights.
  • Defendants have the right to appeal convictions, with appeals proceeding through courts of appeal and potentially to the Court of Cassation on points of law.
  • Italy emphasizes adversarial procedure reforms, especially since 1989, to align with constitutional and European standards.

Codice Rocco

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 offenses that had been transferred to the category of petty offenses or administrative infractions. The same amendment of the Code also introduced new substitutes for short term 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 offenses and detection of their perpetrators, including the collection and holding of evidence. The defense 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 offenses involving ex officio prosecution which come to their attention.

Structure of the Italian Court System

The Italian judicial system is unified, meaning all courts are part of a single national network. Judges and prosecutors belong to the same civil service, and their roles can be interchangeable. At the top of this structure sits the Supreme Court of Cassation, which ensures uniform interpretation of the law and hears appeals only on points of law. Below it are courts of appeal, courts of assize (handling the most serious crimes), tribunals, and justices of the peace. While the Constitution prohibits the creation of special courts, exceptions exist for administrative courts and military tribunals, and a long-standing network of tax courts continues to function.

Arrest Procedure

If a suspect is arrested, the defense counsel must be present at any interrogation. However, according to a provision introduced in 1978, the participation of the defense 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 defense 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.

Rights of the Accused

Italian law provides important protections to individuals under investigation or arrest. The accused has the right to remain silent, the right to an attorney from the earliest stages, and the right to have consular assistance if they are a foreign national. If the suspect cannot afford legal representation, the court appoints a defense attorney. Any confession obtained without respecting these rights can be challenged in court. Moreover, the European Convention on Human Rights, incorporated into Italian law, reinforces the right to a fair trial and to be informed promptly of the charges.

Judicial Proceedings

Judicial proceedings begin with a preliminary judicial investigation. In the case of flagrant offenses, offenses 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 inquiry. 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 defense counsel was not allowed in all judicial acts of investigation. In 1955 a law granted the defense counsel the right to be present at certain stages. An extension of the stages in which the right of defense must be assured followed over the next years due to the intervention of the Constitutional Court. Today, the defense counsel has the right to be present during the following stages: the interrogation of the suspect, enunciation of a judicial view or expert judgment, and search.

Role of the Public Prosecutor

Public prosecutors (Pubblico Ministero) play a central role in the Italian system. They are responsible for initiating criminal proceedings and are bound by the principle of mandatory prosecution, meaning they must pursue all crimes that come to their attention. However, their actions are subject to judicial oversight to prevent abuses of power. During investigations, the prosecutor collaborates with the police but must seek judicial authorization for measures that restrict personal freedoms, such as wiretaps, searches, or extended detention.

Pretrial Detention

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 offenses (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.

Appeals Process in Criminal Cases

After conviction, a defendant has the right to appeal to a Court of Appeal, which reviews both factual and legal issues. If the appeal fails, the case may proceed to the Court of Cassation, which rules strictly on legal interpretation rather than evidence. Appeals must be based on procedural errors, misapplication of law, or new evidence. Italy’s multi-tiered appeal system aims to provide strong safeguards against wrongful convictions, though it can lead to lengthy proceedings.

Age of Responsibility

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 so-called mixed procedure into a primarily adversarial procedure.

Constitutional and International Protections

The Italian Constitution of 1948 enshrines principles that deeply influence criminal justice. It guarantees equality before the law, presumption of innocence, and the prohibition of cruel or unusual punishment. Special emphasis is placed on rehabilitation rather than retribution, particularly for minors and young offenders. Italy is also bound by international agreements such as the European Convention on Human Rights, which ensures that criminal procedures meet international standards for fairness, due process, and the protection of human dignity.

Frequently Asked Questions

  1. What is the highest court in Italy’s criminal justice system?
    The Supreme Court of Cassation, which rules only on points of law, is the highest court in Italy.
  2. Can a conviction in Italy be appealed?
    Yes. Convictions may be appealed first to a Court of Appeal and, on legal grounds, to the Court of Cassation.
  3. What rights do suspects have during arrest in Italy?
    They have the right to remain silent, to legal counsel, to consular support if foreign, and to challenge unlawful detention.
  4. At what age can minors be held criminally responsible in Italy?
    The age of criminal responsibility starts at 14, but courts assess maturity for those between 14 and 18.
  5. Are special courts allowed in Italy?
    Generally, no—except for administrative and military courts. However, tax courts remain from an earlier period.

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