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Court (nn. 26 e 320/2007), that allowed the appeal of the public prosecutor against the acquittal (this power had just repealed by the statute n. 46), it is strictly necessary to reform in an organic way the appellate system.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 >>>

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 >>>

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 >>>

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 >>>