I am also baffled by Italy's appeal system. Here, in E & W, we basically have 'review' and 'rehearing'. The latter is simply a re-trial of the same case in a higher court. Convictions of criminal charges in the magistrates court (the lowest criminal court) are appealable as of right to the crown court where the whole thing is 'reheard' as if the earlier trial had never taken place. There is a similar corresponding civil appeal from the lowest level (trial by District Judge) to the next one up (Circuit Judge) when, again, the whole thing is heard afresh.
An appeal by way of review will generally address itself to the question: did the lower court go wrong? It is an examination of the lower court's handling of the claim and rarely involves consideration of new evidence or hearing live testimony.
Italy's appeals, from Assize Court to the Court of Appeal, seem to be neither one thing nor the other. The appeal court judges seem to be able to pick and mix whatever they want without heeding defence points of appeal. One consequence seems to be that whole areas of enquiry end up getting ignored. The 'remand' to Nencini was not a re-run of Hellman either but a sort of directed hearing within parameters set by the ISC. You would think Nencini would have come right out and said as much when rejecting all those defence requests at the outset, but he didn't, which leaves me puzzled as to quite what is going on.
For the Italian system, the confusion may arise because the
de facto trials deviate from
de jure constitution and laws.
My (imperfect) understanding is that in the Italian judicial system, for a serious criminal case there are three trial levels:
1. First-level trial before two judges (one of whom is the senior, presiding judge) and six "lay judges". The lay judges are randomly-chosen citizens with at least a middle-school education who are not examined for bias nor otherwise vetted. The facts of the case are heard according to law and procedure.
1.1 By law and constitution, the trial is adversarial before an impartial judge who is independent ("third party position"), defense and prosecution are to have equal conditions, and the defense is entitled to cross-examine all witnesses and to bring forth all evidence in its favor; guilt cannot be established from a witness who legally refuses to be cross-examined [Italian Constitution, Article 111].
1.2 A defendant shall be considered not guilty until a final sentence has been passed [Italian Constitution, Article 27].
1.3 Reality may differ regarding the statements in (1.1) and (1.2) based on the whims of the judge and the influence of the prosecution.
1.4 There is no attention to precedent as the civil-law system is used.
1.5 Following the verdict, either the defense or prosecution or both may appeal. (Note that in common-law systems, only the defense may appeal, with certain unusual exceptions.)
2. The appeal is heard in a Second-level trial. The structure of two judges and six lay judges is maintained, but the lay judges in the second-level must be high-school graduates.
2.1 Although called an appeal, the trial may be a full trial of facts and review of the application of law and procedure. (Note that this differs from an appeal trial in the US, which consists of a review of the application of law and procedure conducted in a previous "fact" trial.) The judge apparently is free to decide to what degree new evidence may be heard or previously introduce evidence reviewed.
2.2 Again, all the defense rights of statements 1.1 and 1.2 apply.
2.3 Again, all the arbitrary abuses permitted by judge are allowed, as in statement 1.3.
2.4 Again, precedent is ignored in accordance with the civil-law system.
2.5 Following the verdict, either the defense or prosecution or both may appeal.
3.0 The appeal from the second-level trial is directed to the Corte Suprema di Cassazione (CSC), the Italian Court of Cassation, sometimes called the Italian Supreme Court (ISC). (Note that the CSC is not a Supreme Constitutional Court; that is a different institution in Italy.) The CSC consists of about 400 judges divided into Criminal and Civil Divisions. Each Division is divided further into a number of functional sections (for example, and approximately, such sections may include one for crimes against the state, another for financial crimes, and another for serious crimes against persons). An appeal trial is conducted by a panel of five judges from the relevant section. For certain complex cases, the appeal trial is held by a United Section panel of nine judges, who are selected from several relevant sections.
3.1 The CSC claims that its sole judicial responsibility is to review the application of law and procedure, and not to review facts.
3.2 In reality, the CSC may review facts in certain cases when its panel of judges actually do so. There is apparently no higher review of their action.
3.3 The CSC may accept as final or reject the second-level verdict. If it rejects it, and there is no previous second-level trial, it will order a new second-level trial.
3.4 If there is a previous rejected second-level trial, and the CSC rejects the new second-level trial, the CSC has the option to adopt the previously rejected second-level trial as final.
3.5 For any case, the CSC may reject each second-level trial verdict and order a new second-level trial indefinitely, until the statute of limitations runs out. For some crimes, such as murder, which have no statute of limitations, the CSC can thus indefinitely delay reaching a final verdict. The advantage of this may be to satisfy all political sides among the judiciary, and in principle to avoid the case being brought to the European Court of Human Rights. The ECtHR is in principle allowed to review only finalized cases.
3.5 The verdict is not final until the CSC finalizes a second-level trial verdict.
