New ‘times’ for prescription, transparent criteria for the exercise of criminal prosecution, rules for appeals, alternative measures, digitization. The amendments to the criminal reform bill, drafted by the Minister of Justice, Marta Cartabia, and which were given the green light by the Council of Ministers, intervene on many aspects of the process, with the aim of reducing time and ensuring efficiency, conditions for access to recovery funds.
Here are the main points in summary.
PRESCRIPTION. The current discipline is confirmed, which provides for the stop to the prescription after the first degree sentence (both in the case of conviction and in the event of acquittal). Furthermore, a maximum duration of two years is established for appeal processes and one year for those of the Supreme Court. There is the possibility of a further extension of one year on appeal and of six months in the Supreme Court for complex processes relating to serious crimes (for example simple criminal conspiracy, of the mafia type, drug trafficking, sexual violence, corruption, extortion). Once these terms have elapsed, the impossibility of proceeding occurs. Prescribable offenses (punishable with life imprisonment) are excluded.
DIGITIZATION AND TELEMATIC CRIMINAL PROCESS, DEPOSIT AND NOTIFICATIONS – The government is delegated to make criminal justice more efficient and quicker through digitization and information technologies. Among other things, it is envisaged that the filing of documents and notifications can be made electronically, with a considerable saving of time.
PRELIMINARY INVESTIGATIONS AND PRELIMINARY HEARING – It is established that the public prosecutor can request the indictment of the suspect only when the elements acquired allow a “reasonable forecast of conviction”.
TERMS OF DURATION OF INVESTIGATIONS AND DISCOVERY – The terms of maximum duration of investigations are reshaped in relation to the seriousness of the crime. Furthermore, upon expiry of the maximum duration of the investigations, without prejudice to the specific needs for the protection of investigative secrecy, a mechanism for the discovery of the documents is envisaged, to guarantee the suspect and the victim, also to avoid the prescription of the crime associated with an intervention by the investigating judge for preliminary investigations and in case of stagnation of the proceedings.
PRIORITY CRITERIA – The offices of the public prosecutor, to ensure the effective and uniform exercise of the criminal action, within the general criteria indicated by law by the Parliament, must identify transparent and predetermined priorities, to be indicated in the organizational projects of the Public Prosecutors and to be submitted for the approval of the Superior Council of the Judiciary.
EFFECTS OF THE REGISTRATION OF THE NOTICE OF CRIME – In line with the constitutional principle of the presumption of innocence, it is envisaged that the mere registration of the person’s name in the register of crime reports cannot cause prejudicial effects on a civil and administrative level.
PRELIMINARY HEARING – The provision of the preliminary hearing is limited to crimes of particular gravity and, at the same time, the hypotheses of direct summons to trial are extended. The judge will have to pronounce a sentence of no place to proceed when the elements acquired do not allow a reasonable prediction of sentence.
APPEAL – The possibility for both the prosecutor and the accused to appeal against the sentences of conviction and acquittal is generally confirmed. The jurisprudential principle of the inadmissibility of the appeal due to non-specific reasons is acknowledged. There are limited cases of non-appeal of first-degree sentences, for example in the event of acquittal for crimes punishable with a monetary penalty and conviction to work in the public utility.
CASSATION – A new extraordinary means of appeal is introduced before the Cassation, to execute the judgments of the European Court of Human Rights. Furthermore, the appeals will be dealt with with written contradiction, except for the request made by the parties for oral discussion in a public hearing or shared council chamber.
SPECIAL PROCEDURES. Plea bargain: it is envisaged that, when the custodial sentence to be applied exceeds two years (so-called extended plea bargain), the agreement between the accused and the public prosecutor may extend to accessory penalties and their duration, as well as to the optional confiscation and determination of its object and amount. Shortened judgment: among other things, it is envisaged that the sentence imposed will be further reduced by one sixth, in the event of the defendant failing to appeal. In the ordinary judgment it is envisaged that, in the event of a change in the judge or one or more members of the panel, the judge, in the case of testimony acquired by video recording, re-assumes the evidence only when he deems it necessary on the basis of specific needs.
COMPLAINT – The government is delegated to extend the prosecution of a complaint to specific crimes against the person and against property with a penalty not exceeding a minimum of two years, without prejudice to official prosecution, if the victim is incapable of age or infirmity.
PECUNIARY PENALTY – The aim is to rationalize and simplify the procedure for executing financial penalties; to review, according to criteria of fairness, efficiency and effectiveness, the mechanisms and procedure for converting the financial penalty in the event of non-payment due to the insolvency or insolvency of the offender; to provide for effective administrative procedures, which ensure the effective collection and conversion of the financial penalty in the event of non-payment.
PENALTIES IN PLACE OF SHORT DETENTIVE PENALTIES – The government is delegated to carry out an organic reform of Law 689 of 1981, providing for the application, by way of alternative sentences, of public utility work and some alternative measures to detention, currently the responsibility of the Surveillance court. The new substitutive sentences (home detention, semi-liberty, public utility work and pecuniary penalty) will be directly enforceable by the judge of cognition, within the limit of four years of sentence imposed. Conditional suspension is excluded. In this way, greater effectiveness is guaranteed in the execution of the sentence.
PARTICULAR TENUITY OF THE FACT – In order to avoid holding trials for bagatellar facts, the Government is delegated to extend the scope of the non-punishable case, referred to in Article 131 bis of the Criminal Code, to crimes punishable with a no higher legal penalty in the minimum of two years.
SUSPENSION OF THE PROCEEDINGS WITH PROOF OF THE ACCUSED – To enhance an institution that has had a successful application in practice (22,271 applications as of June 2021), the Government is delegated to extend the scope of application of art. 168 bis of the Italian Criminal Code to specific crimes, punished with a custodial sentence not exceeding 6 years, which lend themselves to remedial procedures. It is expected that the request for probation of the accused may also be proposed by the prosecutor. Testing involves the performance of public utility work and participation in restorative justice paths.
RESTORATIVE JUSTICE – The Government is delegated to regulate restorative justice in an organic way, in compliance with a European directive (2012/29 / EU) and in the interest of both the victim and the perpetrator of the crime. Access to restorative justice programs is envisaged at every stage of the procedure, on a voluntary basis and with the free and informed consent of the victim and the perpetrator and the positive evaluation of the judge on the usefulness of the program in the criminal field. The retractable consent, the confidentiality of the statements made during the restorative justice program and their unusability in the criminal proceedings are expected.
SANCTIONING DISCIPLINE OF CONTRAVENTIONS – The provisions of the draft law 2435 on the subject of extinction for fulfillment of the prescriptions of the administrative authority are confirmed.