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By Giulia Miraglia

The Italian Criminal Justice System is based on ancient Roman Law and French principles, which are all written laws. It is composed of courts and a body of judges. The judiciary and prosecutors are autonomous from the political— executive and legislative–power. Penal law defines which behavior is criminal and what are the penalties to be inflicted on the accused person. Article 27 of the Italian Constitution argues that no penalty can be inflicted without a law and “punishments may not be inhuman and shall aim at re-educating the convicted”.

Additionally, all citizens have the same human rights and criminals cannot be convicted without a fair trial. Finally, prisons should be a safe place for everyone who is involved in them.

 In the previous decades, this Criminal Justice System underwent a major reform known as the “fair trial”. In 1988, the old inquisitorial model, according to which the investigating judges had the duty to collect all the evidence and to issue a verdict, was partially replaced by Anglo-Saxon adversarial procedure elements. The new Code of Criminal Procedure (CCP), which came into force in 1989, was restructured along adversarial lines: it would be a “party-controlled fact-finding” model, in which the evidence is presented at trial in a partisan manner. The break with the inquisitorial continental tradition led the Italian Criminal Justice System to be the first civil law system in Europe effectuating a transplant of the Anglo-Saxon common law adversary model. The main goal was to make the criminal trial more consistent with the democratic principles of orality, immediacy and publicity.

The Italian criminal process is divided into two phases: the investigative phase (preliminary investigations)—during which the public prosecutor collects the evidence—and the trial phase, where contending parties put evidence before the judge. What is important to know is that the preliminary investigations start when the public prosecutor or a member of one of the law enforcement agencies discover sufficient elements to suspect that a crime has been committed (the notitia criminis) in accordance with Art.330 of the CCP.

The whole pre-trial phase is supervised by the judge for preliminary investigations, otherwise known as G.I.P., whose task is to control the work of the public prosecutor and guarantee the rights of the person under investigation.

Although the judiciary has a high level of autonomy (art.104 Italian Constitution), it is still limited due to the presence of political corruption. Additionally, Italy is the only country in Europe to have five different law enforcement agencies, each one with its own structure and status. The most important are the State Police (Polizia di Stato), part of the Ministry of the Interior; the Arma dei Carabinieri, a branch of the Armed Forces; and the Customs and Excise Police (Guardia di Finanza) that answers both to the Ministry of Defence and the Ministry of Economy and Finance for financial crime and smuggling. The last two law enforcement agencies are the State Forest Corps and the Penitentiary Police under the Ministry of Justice.

The complexity of the law enforcement's structure, the numerous legal procedures and extensive evidentiary rules are fundamental to understanding the weaknesses of the Italian Criminal Justice System. Thus, any law enforcement agency can be nominated judicial police, depending on judicial authorities and helpfulness for the public prosecutor in preliminary investigations.

It is important to say that in Italy a specific law against torture did not exist until 2017.  In fact, the European Court of Human Rights analyzed the human rights situation in Italy in 2015, and discovered that 2219 sentences, proclaimed by the ECHR for accusations of inadequate human rights protection, were not respected by the country. Hence, Strasbourg condemned Italy for inadequacy in the prevention and punishment of torture cases.

The problem is the abuse of power and authority, specifically aiding and abetting those that abuse their positions. The death in custody of Stefano Cucchi (2009), Giuseppe Uva (2008) and Federico Aldrovandi (2005) cases have put abuse of power under scrutiny in Italy by both the public and the Italian NGO Antigone.

Since Stefano Cucchi's death, the media, newspaper and people have talked a lot about this case, and it was even made into a movie based on the last seven days of his life “On My Skin” (2018).

The 31-year-old Stefano Cucchi died on 22 October 2009 in the detention ward of Sandro Pertini hospital, six days after his arrest by the Carabinieri for drug possession and dealing (20g of cannabis and 2g of cocaine). He received treatment for injuries including two fractured vertebrae and a broken jaw. His skinny appearance and bruised eyes shocked the public.

What happened the night of his arrest? He spent his first night in custody in a cell, and the day after he was taken to local general hospital with injuries to the legs, back pain and bruises on his eyes. On October 16th, he was taken to the court for a hearing to validate his arrest, and the judge ordered pre-trial detention in Regina Coeli prison. Six days later, he died in his hospital bed, though the young amateur boxer was in good health.

Family members rejected the assertion that Stefano died for natural causes, and a big campaign for justice began. This event opened a debate on the abuse of police power at national level. Ilaria Cucchi–Stefano’s sister–started eleven years of legal battles, becoming an admired human rights crusader.

At the first instance trial in 2013, five doctors and hospital staff members were convicted. The doctors were sentenced to two years of imprisonment and the others were acquitted according to the Assize Court. In October 2014, the Rome Court of Appeals acquitted all the accused people, from doctors, to nurses; from Prison Service to Carabinieri.

In December 2015, the Supreme Court of Cassation ordered the partial annulment of Appeal sentence (2014). After years of legal battles, the case was reopened in 2017 due to investigations on police attitude and abuse of power during Cucchi’s custody. Francesco Tedesco, one of the three policers charged with the murder of Stefano, admitted to the Courtroom in Rome that his colleagues had punched and kicked Cucchi in the face, causing fatal injuries. Since this moment, the unclear story became more and more transparent.

10 years after Cucchi’s death, on the 14th of November, 2019, five Italian Carabinieri officers were found guilty and two of them have been sentenced by the Court of Assizes to 12 years in jail for involuntary manslaughter, misdirection, forgery and slander.

Although Article 13, paragraph 3 of the Italian Constitution states that “Any acts of physical or moral violence against persons subject to restrictions of personal liberty are to be punished”, officers cannot be found guilty of torture. This is because crimes for torture and such legislation were not in effect at the time of the offense.

Stefano Cucchi’s case highlights the routine abuses occurring in Italian prisons and police stations, the lack of accountability of those responsible and impediments to the right to a fair hearing.

Finally, the Code of Criminal Procedure per se is a machine that should work effectively. It is not a fault of the system, but rather of the individual behavior belonging to different bodies. Moreover, it should not be forgotten that, like any other public apparatus, the police reflect the society in which it is born and operates. This is a society where authority is increasingly less respected and violence, in its several shapes, is increasingly present. The rules of the Italian Criminal Justice System are continuously decayed by tainted trees protecting rotten apples.

Giulia is a political writer for La Tonique. You can follow Giulia on Twitter ⁦@gm_miraglia⁩.