RICERCA ITALIANA     

Legal Remedies in Criminal Procedure through the Prism of Due Process Clause

Università degli Studi di Bologna

Abstract

The main goal of the project is the formulation of a concrete reform proposal of the appellate system (including the remedies against the preventive measures).
The need of this analysis derives from the circumstance that the the appellate system was not, substantially, modified by the reform of 1988: notwithstanding the favor for the adversarial model, it remained the same as in the previous code. As a consequence, beside the problems linked to nature, aim and use of the remedies, a contrast arose between the trial, regulated by the adversarial principles, and the appeal, that allowed (and nowadays allows) the use of written evidence, whereas the debate principle regards only exceptional cases. The conflict has increased after the reform enacted by the statute n. 46/2006 and the following pronounces of the Constitutional Court (nn. 26 e 320/2007), that allowed the appeal of the public prosecutor against the acquittal (this power had just repealed by the statute n. 46), it is strictly necessary to reform in an organic way the appellate system.
The aim of the reform should not be confined to solve the present problems, caused by the partial modifications laid down by the statute n. 46 and the following pronounces of the Constitutional Court, but that one to find a balancing between the defendant's guarantees, the efficiency and the speedy trial principle.
The goal of the research is to outline the guidelines' for a reform of the appellate system. The research will be based on: the analysis of the domestic law, in order to find out, also considering the jurisprudence and the daily running of the tribunals, the points that need to be modified; the study of solutions, elaborated also on the basis of a comparative approach and the principles provided for the European Convention on Human Rights.
There will be two steps: on one hand, each research unit will singularly deep a remedy; on the other, the results of the analysis carried on by each unit will be discussed in a meeting. It is important to underline that the University of Bologna unit takes the responsibility in order to ensure the coordination of the research and to guarantee a complete “collegiality” in each discussion.
The final result will be a draft of reform. It will be thought, by a side, as an incentive to stimulate a new scientific debate among the academics and, by another , also as a concrete act developed for the lawmakers in order to facilitate the presentation of a draft legislation in this matter. <<<

Principal Investigator

Renzo Orlandi Università degli Studi di BOLOGNA

Research Objectives

The main goal of the project is the formulation of a concrete reform proposal of the appellate system. Specifically, we wish to elaborate a draft legislation structured in single articles. At the end of the research this draft will be showed to institutional actors in order to facilitate the presentation of an official law proposal.
In the last years the Parliament has often made an effort in order to reform the appellate system but it has ever failed for several reasons (f.i., among the others, for technical problems and political divisions). Even if, when the lawmaker has discussed the new Criminal Procedure Code, it had the idea to renovate this part of discipline, successively it hasn’t modernized these remedies. So, today we have a Code inspired by “accusatory principles” and an appellate system founded on “inquisition basis”; consequently, the first instance it is characterized by an oral trial, the second and third on writing.
During the 90’s it is developed an interesting debate on these problems and a lot of proposals are been formulated in order to achieve a reform of the appellate system.
These proposals moved, substantially, in three directions: reforming the petition to the Corte di cassazione, abolishing the appeal and, finally, making executive the second instance sentences, although challenged.
These ideas had a common origin in the problem of the distortion use of the appellate system. In fact, very often, the remedies laid down by the Code are applied only to postpone the final verdict and to arrive to a “statud-barred” decision.
The remedies against preventive measures are been often part of political agenda too. In this sense it is interesting to observe several draft of statutes (since the middle of the ‘90s) putting forward the establishment of the guarantee of the “anticipated right of controverting” into the code discipline. It could be interested to analyse this proposal reform in the light of a broad renovation of the entire discipline of the appeal against the pre-trial measures.
Nevertheless the lot of proposals reform illustrated, nowadays it is necessary to observe the absence of a complete reform of the appellate system discipline.
Even if the statute n. 46/2006 has renewed the appeal and part of the petition to the Corte di Cassazione, this reform has been partial and not organic. Moreover, we have to mention that the more innovative part of reform has, successively, declared unconstitutional, losing their effect on the legal system.
The failure of this reform, also in its original formulation before the decisions of the Constitutional Court, underlines the difficulties linked with a structural updating of the entire system of appeal. Nonetheless these difficulties, the urgency of a new discipline of the appellate system in an “accusatory sense” require an intervention in a brief time. In this sense also the President of the Republic, opposing to the draft legislation on appeal to the Parliament, has underlined the opportunity of new discipline of the entire appellate system; in this sense, it is interesting also to mention the fact the Corte di cassazione and the tribunals are supplying the lack of the legislative intervention with new interpretations and new pronounce (f.i. see the recent decision on the execution of the conviction to the Italian State by ECHR).
For these reasons, at the end, the aim of the project has to be the overcoming of these difficulties through a complete proposal of reform focused on an organic approach to every single remedy. For this, setting up the final document, the team will take into account the non-stop questioning among the members of research teams, and among the teams too, in order to avoid discrepancy and contrast in the proposal. <<<

First Results

As previously exposed, the project research has the main objective to outline the guidelines' of a reform of the appellate system and to suggest practical solutions in order to carry on the new discipline, tacking into account the current situation and the historical and comparative development.
The criminal procedure is a very complex machine and the functioning of every part is strictly connected with the others. For this reason, a proposal reform of a section of the Code must be considered under the light of its consequences and effects on entire system. Under this point of view, it becomes important to study the potential reform in the light of the main principles of the Code and tacking into account the current discipline of other parts. In fact, the measure of proposal success will be evaluated on the ground of the better functioning of entire criminal process and not only of one part.
In this sense, the first indicator used to assess the proposal of this project research is the “proceeding efficiency”. It will be important, for this reason, to draw the possible reforms with the main goal to reduce the duration of the entire procedure. The “reasonable duration”, in fact, is indicated by the Constitution (art. 111 par. 2) as a fundamental characteristic of the “fair trial”.
In the last ten years, in order to implement this important principle, some experts proposed a radical solution: to cut the appeal. In the opinion of these specialists, this fundamental Constitutional rule should impose to limit every not necessary guarantees (or guarantees not coherent respect the principles of the new procedure); consequently, the appeal, considered as part of this category, it should not be covered by a constitutional provision and, being a typical remedy of the inquisitorial system, it should be abolished because incoherent with new system.
Moreover, the “reasonable duration”, also in the past, was the main indicator used to evaluate the previous draft reform of the appellate system. For example, under this light it was assessed the proposal to limit the “object of appeal” as far as the proposal to introduce a new appeal with the only aim to quash the sentence of first instance, deferring the new decision to another tribunal (in this case this solution was rejected for its incompatibility with a fastening of the duration of the proceeding).
This criterion is been used to assess also the recent reform of the petition to the Corte di cassazione. The new hypothesis of error on the grounds of sentence emerging by proceedings acts, in fact, has been contrasted for its incompatibility with the reasonable duration. It iss clear that this new case could take to a dangerous “overload” of the Corte di cassazione.
Also the recent statute n. 46/2006 is been outlined with the main goal to improve the application of the “reasonable duration” principle. The promoter of the law, in fact, justified the limit to the appeal of the public prosecutor with the necessity of guarantee the speediness of the criminal proceeding. Strictly connected with the problem of the efficiency of the procedure and with its reasonable duration, it is the discipline of the “suspending” effect of the appeal. In our legal system, the presentation of the appeal determines the automatic suspension of the execution of the verdict. This effect is a natural corollary of not-guilty principle provided by article 27 of the Constitution: a fundamental prevision with an enormous practical and symbolic value.
Nevertheless this corollary, sometimes, especially regarding the appeal to Court of appeal, the suspension has not suitably used.
Under a first point of view the suspension determinate the main effect to postpone the execution of the pain: this becomes ever more problematic for the interminably duration of the procedure. It’s easy to understand that, in this condition, the simple appealing of a sentence postpone the execution to an undefined date, permitting to the condemned to continue his normal life. So, the appeal becomes, first of all, an instrument to defer the pain to an undefined date. For this reason, there is an an “overthrow of the scopes” having a negative impact on entire Criminal system, and with the consequence of the preventive custody.
Under another important point of view, the defendant use to appeal (and gaining the suspension of the execution) in order to earn proceeding benefits and to obtain a status-barred crime decision.
This is a really distortion of the system, a remedy, born to criticize the decision on the guilty or innocence of the defendant, becomes only an instruments to reach a proceeding sentence of discharge for prescription.
This is an historical problem of Italian legal system that frequently becomes part of political agenda but that has not been ever solved.
Of course, this question is not only a “procedure” problem but it is strictly linked with the discipline of prescription provided by the Criminal Code.
In every case, these problems will be taken into account by the researchers with the aim to try to define a new discipline capable to overcome them. Even if the suspension of the execution is a corollary of a Constitutional principle and is considered untouchable, during the research will be useful to study solutions to solve the distortions of the system connected with the implementation of this principle.
At the end, in order to define a structured and organic proposal reform of the appellate system, the fundamental guarantee of defensive right will have a primary consideration. The criminal procedure is the natural “place of the guarantee” and, for this reason, every reform, and in particular an appellate system reform, must be defined on this basis. <<<

Timescale

24 months

National and international background

Although the original intention of lawmaker was a radical reform of the entire criminal procedure under the light of the “fair trial” principle, the appellate system was not, substantially, modified by the reform of 1988, and it remained the same as in the previous code. For this reason, at the present time there’s a contrast between the current discipline of appeal and other remedies having an “inquisitorial inspiration” and the trial to tribunals founded on accusatory principles. For this reason, it’s important to underline that, at this time, the trial of first instance is verbal, while the appeal system is characterized by a written evidence. The conflict between these procedure models has increased after the Constitutional reform of art. 111. The new text of this article, in fact, provides a “constitutional range” to the principles of “fair trial” and “cross-examination”, for this reason, some characteristics of Appeal appear more in contrast than before with the other part of the procedure.
Conclusively, we have to mention that the appellate system has remained the same of the old code and it has not substantially reformed.
By the way, a partial reform concerning the petition to the Corte di cassazione has been carried on under the reform of 1988. The lawmaker, in fact, provided a new hypothesis of petition for the “absence or insufficiency of the grounds of sentence”. This new case was, wherever, limited by a restrictive clause according to which the insufficiency should result directly from the text of the sentence. The logic of this reform was “to keep review on the level of legitimacy, avoiding excess (…) which, at times, has given rise to invasions by the Corte di cassazione, in the area reserved to the tribunals” (Preliminary Prog. Report C.p.c.). The Corte di cassazione, implementing this new rule, interpreted in a very restrictive sense, stating that there was an absolute prohibition to read proceeding’s files, such to present the review of elements on which the ruling issued by tribunals was based.
Recently, the entire discipline of the appellate system was submitted to a partial, but important, reorganization by the statute n. 46/2007. In this sense, concerning the appeal, the reform had strictly limited the faculties of the public prosecutor to appellate, providing the exclusion of the possibility to appeal the acquittal. In order to solve the problem linked with the appellate system, so, the Parliament approved the stronger solution with the consequence that the Constitutional Court declared unconstitutional the part of the statute n. 46, concerning the forbidden of appeal, for contrast with the equality of arms principle. A consequence of these events is that, by the point of view of defendant, the current situation is worst than before because nowadays he cannot challenge the discharge sentences to obtain a better pronunciation (with previous rules he could appellate them in order to achieve a totally acquittal sentences).
Concerning the petition to the Corte di cassazione the statute n. 46/2006 has guaranteed an easier access modifying the hypothesis of petition concerning the “insufficiency or absence” of the grounds. In fact, although the literal meaning of new article 606 lett. e CPC, could appear obscure for its formulation, the prevalent Jurisprudence seems oriented to an extensive interpretation (coherently with the spirit of the statute), opening the case of appeal without the restrictive clauses, connected with the text of sentences, before provided.
In the intention of the lawmaker it appeared clear the link between the reform of appeal and the reform of appeal to Cassation, if the first one was restricted, the second one was extended to balance the system but,nowadays, for the recent sentences of Costitutional Court, the landscape’s changed another time. The appeal to Court of Appeal practically maintain the same previous discipline, while the competence of Cassation is extended, coherently with the new art.606, also to the error caused by a distortion of the valuation of the evidence.
In this situation, the needs of an entire reform of the system is not possible to postpone. The system, under a lot point of view, has collapsed (among the others we can mention also the great problem connected with the interpretation of the current law on the appeal of the victim).
Even if for different reasons, also other parts of appellate system are needs of reformation.
The extraordinary review is in these days, object of the political agenda.
In the Parliament, in fact, there are some drafts of reform of this remedy, finalized to introduce a new case of review for the hypothesis of conviction of Italian State by the ECHR for violation of art. 6 of the Convention.
Moreover, also by a substantial point of view there are some proposals with the aim to introduce a new discipline of prescription. This fact could have an important impact on the appellate system because it could limit the appeal with the only scope of postpone the sentence.
Finally, there is also another important scientific discussion on the remedies against preventive measures. In a “de iure condendo” perspective there are a lot of proposals with the aim to introduce an “anticipated right of controverting” before the application of the measure. Also this hypothesis, if it will be approved, could have an important consequence on the appeal system of pre-trial measure and, more general, on appeal system in broad sense. <<<