Explainer: how does the Italian criminal justice system work?
The Italian constitution and acts of parliament set out a system whereby criminal prosecutors are fully independent; in particular, they have “external independence” from all the other constitutional powers. This means that they are not subject to external pressure of any kind when they execute their functions. Their independence is protected because prosecutors are part of the judiciary, which in Italy is fully separated from the other constitutional powers. In addition, the Italian constitution provides for the legality principle, which means that every case must be prosecuted: there is no judicial discretion. As the Constitutional Court has stated, this principle is intended to guarantee equality before the law within the penal process.
External independence does not just apply to the moment when the prosecutor decides upon penal action: the prosecutor is fully independent even during the investigation phase, during which he or she directs the police. This is a very important legal power. While it does not mean that prosecutors control the police during the investigation, prosecutors rely on the police and interact with them constantly. If the case is serious, in particular, they are effectively in charge of the investigation.
This does not mean that in Italy investigations are routinely conducted and structured like in England, because the police consider prosecutors as their superiors during the investigation. And even if the direction of the investigation is bureaucratic and reactive, prosecutors are still in a position to take very important decisions. Although this is a very short summary, it should help clarify why during the investigation the prosecutor becomes the key figure, and why prosecutors have so much influence over political decisions about responses to crime in Italy.
This should also help clarify some of the questions posed by non-academic writers and journalists during the Kercher case: prosecutors were not abusing their power, they were in fact asserting their legally defined central role in the justice system. There are obviously some questions about how this particular investigation was conducted, but they must be separated from any analysis or evaluation of the Italian system.
Trial and appeal
The trial of Knox and Sollecito was standard, meaning no special rules were used; on the other hand, Rudy Guede’s lawyers decided to use one of the special procedures that are aimed to speed up the criminal process, in this case a giudizio abbreviato or fast-track trial. This is something that individuals who are facing a trial can freely opt for. This is why Knox and Sollecito went through a much more complex and lengthy judicial procedure than Guede.
One aspect of the Knox-Sollecito case that most coverage omits to mention is that it is has now been analysed by three prosecutors (at least), a preliminary investigation judge, a preliminary hearing judge, a first instance court, two courts of appeal, the Italian Supreme Court and a significant number of skilled police officers. The context around the case is obviously very complicated, but from a legal point of view it is simply wrong to say (as some have) that it was artificially pushed along by an obsessive, tyrannical prosecutor.
The Court of Cassation
The Sollecito and Knox case has, however, demonstrated a major problem with the Italian CJS: the criminal process takes far too long to reach a final decision. In this case, a second appeal procedure was necessary because of the decision of the Court of Cassation (Corte di Cassazione).
In Italy there is a constitutional right to appeal on points of law to the Court of Cassation, which can agree with the Court of Appeal’s decision or can disagree with its interpretation of the law. This is a very important point: the Supreme Court in Italy does not review the facts of a case, so if the judges are unhappy with the previous decision, the case must be sent back to the Court of Appeal to be re-examined.
In this case, the Supreme Court decided that the March 2013 acquittal was “illogical” because the judges had not fully considered all the evidence. This is a difficult decision to interpret, but the criteria to make an appeal on points of law and the limits to the court’s jurisdiction are flexible. In essence, this means that many decisions taken by the Supreme Court in fact straddle the border between points of law and facts.
This is what happened in this case, where the Court of Appeal was told to review all the evidence and issue a verdict on the basis of a logical and legal evaluation of the facts; that is exactly what the court did in the run-up to Friday’s verdict. Knox and Sollecito have therefore not been tried twice for the same crime, because in Italy, all these decisions are legally speaking part of the same continuous criminal process. This will be an important point if and when the Italian government asks for the extradition of Amanda Knox, pending the confirmation of the most recent verdict by the Supreme Court.
The Italian criminal justice system is sometimes branded as semi-adversarial, but its legal culture and the Italian law in action in fact demonstrate an inquisitorial approach to fact-finding. Italian criminal procedure is a difficult concept to grasp for lawyers and citizens in other countries, who are used to adversarial systems. In Italy, procedural justice is part of the concept of justice: a decision is legally acceptable so long as it results from patterns of official activity that provide protection to the defendant’s rights and an opportunity to find the truth.
This obviously does not mean that the Italian system is infallible, and aspects of the case’s progress have certainly raised eyebrows: Amanda Knox’s statements are certainly difficult to accept as evidence, the media put a lot of pressure on prosecutors, and the police clearly acted to protect their credibility. These are certainly important problems – but they cannot be addressed without a clear understanding of how the Italian criminal justice system is set up to function.
We must remember that there is not a single common global ideal of justice, and that the imperfect Italian system complies with rules that are logical and rooted in a legal tradition – albeit one very different from what non-Italian audiences are used to.