Understanding the Italian judicial system and its dysfunctions is critical to following the odd twists of this case.
The following discussion is based upon an article published in the Washington University Global Studies Law Review, Vol 4, Issue 3 (2005):
The frustrated turn to adversarial procedures in Italy (Italian Criminal Procedure Code of 1988), by Giulio Illuminati, Professor of Criminal Procedure, Head of the Dept. of Law, University of Bologna
Italy has historically relied on an inquisitional judicial system similar to that used in Continental Europe rather than the adversarial system as used in the UK, US, Canada, New Zealand, and Australia. In the inquisitorial system, the judge is not a referee, but the primary seeker of truth; prosecution and defense attorneys have secondary roles. The prosecutor or investigating judge conducts an investigation, gathers the evidence into a file, and presents the file to the judge for use at the trial.
While Italy adopted an adversarial system by law (changes to the Criminal Procedure Code) in 1988, there was resistance to the new system from the Constitutional Court and elements of the judiciary. In the 1988 reform, only parts of the prosecution file was presented to the judge, to enable the prosecution and defense the role of presenting opposing lines of evidence at trial to the judge unbiased by full knowledge of the prosecution file and emphasizing cross-examination. The arguments against these changes by the prosecutors and judges was that it was inefficient and denied the judges the full power to seek truth, as they understood it. Opposition, including changes forced by the Constitutional Court, was such that the adversarial system was abandoned in 1992.
The Italian parliament, [perhaps responding to ECHR judgements], passed new reform laws starting in 1997 and, in 1999, a new Constitutional Law, modifying Article 111 of the Constitution to specify, among other new provisions, that evidence in criminal cases may only be heard in front of the parties, with cross-examination allowed, and before an impartial judge. Also added was the provision that guilt can not be proven by declarations of an accuser who had not undergone cross-examination by the defense.
....
Some of my own interpretation:
Some of the Italian judges continue to act, in part, as though the inquisitorial system were still in place. They assume themselves to be extensions of the prosecution, accepting the case file and discounting the defense. Since they are "seeking the truth", they see no reason not to invent their own "truths" which others see as speculation. Thus, they have no issue with plausible guilt rather than guilt beyond a reasonable doubt. The judges thinking may be: If the defendant weren't guilty in some way, why would they be in my court; guilt, not innocence is presumed in this dysfunction of the inquisitorial system. And if the CSC orders a finding of guilt, so much "truer" this guilt must be; evidence is simply to be cherry-picked to support creative speculation to produce a seemingly but falsely "reasoned" motivation report.
Again, my interpretation (not stated by Professor Illuminati):
The changes in Italian law & constitution were obviously motivated by ECHR rulings and the E Convention of HR. The inquisitorial system did not allow significant confrontation (cross-examination) of witness, and relied too much on the judgement of the prosecutor and judge - tending to the presumption of guilt. One ECHR case at the time changes were made is Luca v. Italy, ECHR final judgement 27-02-2001. The following is from the Netherlands Institute of Human Rights:
Publication: 2001-II
Title: Lucà v. Italy
Application No: 33354/96
Respondent: Italy
Referred by:
Date of reference by Commission:
Date of reference by State:
Date of Judgment: 27-02-2001
Articles: 6-1
6-3-d
41 Conclusion: Violation of article 6-1
Violation of article 6-3-d
Compensation awarded
Keywords: FAIR TRIAL / EXAMINATION OF WITNESSES
Summary:
Article 6(1) ECHR: Right to a fair hearing; Article 6(3)(d) ECHR: Right to hear witnesses
Facts:
The Criminal Court sentenced the applicant to eight years and four months' imprisonment for drug-trafficking. His conviction, which was upheld by the court of appeal in November 1994 and by the Court of Cassation in November 1995 was based solely on statements made to the public prosecutor during the investigations by a co-accused in connected proceedings. Despite the fact that neither the applicant nor his representative were ever given an opportunity to examine the maker of the statements, either at the trial (the co-accused exercising his right to remain silent in accordance with Article 210 of the Italian Code of Criminal Procedure), or at any other stage of the proceedings, the statements were nonetheless admitted in evidence and formed the main basis for the applicant's conviction. Article 513 of the Code of Criminal Procedure, as worded at the material time and construed by the Italian Constitutional Court in its judgment no. 254 of 1992 (which contained no references to the guarantees of a fair trial set out in article 6 or to the criteria established by the Court's case-law in that connection) enabled the trial court to use statements made by a co-accused in connected proceedings where the co-accused had exercised his right to remain silent and refused to repeat them at the hearing, even if the person against whom the statements were apt to be used had been given no opportunity of examining the maker at any stage in the proceedings. In that connection, the Court referred to the amendment of article 111 of the Italian Constitution that had been adopted after the events in issue. It noted that by virtue of Law no. 35 of 25 February 2000, which set out the extent to which the amended Article 111 of the Constitution applied to pending proceedings, the former rules continued under certain circumstances to apply to such proceedings.
Complaints:
The applicant complained that the criminal proceedings against him had been unfair and alleged that he had been convicted on the basis of statements made to the public prosecutor, without being given an opportunity to examine the maker of the statements, N., or to have him examined. He relied on article 6(1) and (3)(d).
Legal considerations:
Article 6(1) jo 6(3)(d)
As a general rule, paragraphs 1 and 3(d) of article 6 required that the defendant be given an adequate and proper opportunity to challenge and question a witness against him, either when he made his statement or at a later stage. In that regard, the fact that the depositions had been made, as here, by a co-accused rather than by a witness was of no relevance, since the term "witness" had an "autonomous" meaning in the Convention system. Thus, where a deposition could serve to a material degree as the basis for a conviction, then, irrespective of whether it had been made by a witness in the strict sense or by a co-accused, it constituted evidence for the prosecution to which the guarantees provided by article 6(1) and (3)(d) applied (on that point, the Court therefore did not consider pertinent the Court of Cassation's reason, based on a literal construction of article 6, for rejecting the applicant's ground of appeal based on that provision). As the Court had stated on a number of occasions, it could prove necessary in certain circumstances to refer to depositions made during the investigative stage (in particular, where a witness refused to repeat his deposition in public owing to fears for his safety, a not infrequent occurrence in trials concerning Mafia-type organisations). As such, their admission in evidence would not in itself contravene article 6(1) and (3)(d). However, where a conviction was based solely or to a decisive degree on depositions that had been made by a person whom the accused had had no opportunity to examine or to have examined, whether during the investigation or at the trial, the rights of the defence were restricted to an extent that was incompatible with the guarantees provided by article 6. Following its case-law on the subject, the Court said that it was furthermore clear that the cross-examination of prosecution witnesses in the wide sense of that term under the Convention system should necessarily always take place at the trial. Although the evidence, including the evidence for the prosecution, normally had to be examined at the hearing, certain special circumstances such as those referred to above could make it difficult, or even impossible, for depositions made at an earlier date to be repeated at a public hearing. In such cases, article 6 required only that the accused should have been given an adequate and proper opportunity to challenge the evidence concerned, even before trial. The Court also implicitly rejected the Government's argument based on the need to protect the right to remain silent of a co-accused called to repeat at a public hearing statements he had made previously. It was not the right to remain silent that was in issue. The co-accused retained his right to remain silent and not to incriminate himself. However, if he exercised that right, as in the case before the Court, his previous depositions could only be used against other persons as material evidence of guilt if the accused had had the opportunity of cross-examining him at some stage in the proceedings. In the case before the Court, the domestic courts had convicted the applicant solely on the basis of statements made by a co-accused before the trial in connected proceedings and neither the applicant nor his lawyer had been given an opportunity at any stage of the proceedings to question him. The Court therefore concluded that the applicant had not been given an adequate and proper opportunity to contest the statements on which he had been found guilty.
Article 41
The Court considered that it could not speculate on what the outcome of the proceedings would have been if they had complied with article 6(1) and (3)(d). It therefore made an award for non-pecuniary damage only. The applicant was also awarded a lump sum for the costs he had incurred before the Court.
