Access to a lawyer in Italy. Implementation of directive 2013/48/EU .. and beyond

Nicola Canestrini Fair Trials LEAP Judicial remedies Woking Group Lisbon, 27 January, 2017

Italian criminal justice system

investigation and prosecution under prosecutors’

supervision (indipendent from executive)

“semi-adversarial”

(inquisitorial approach)

double file system (in trial)

“Defense is an inviolable right at every stage and instance of legal proceedings”mandatory technical-legal defense (court appointed lawyer IS NOT legal aid lawyer) no self-defense in criminal proceedings protection against self incrimination right to silence lawyer client privilege (private consultation) Miranda warnings accused and suspects have same rights

minor changes in It. criminal procedure

lineup

change in EAW law

double representation

remedies?

no “sanctions” in directive (relying on ECHR GC 2008, Salduz vs. Tukey? .. Ibrahim 2016?)

It. criminal procedure code

directive 2013/48/EU implemented with law 184/2016,

n. 184, effective since october 2016

remedies (investigation) access to a lawyer is granted under Italian law since the very first contact with the police

exclusionary rule applies (no utilization in trial, strongest sanction: ex officio, every instance and stage; no police witness statements allowed)

exception: “spontaneous statements” can be used in summary trial and plea bargaining (bothe presume consent of defendant)

double file system (but in practice: seizure records with statements)

“fruit of the poisonous tree” is not poisonous itself

trial by media (may a point for FT)

Veronica Panarello case murder of her child 11/2014

12/2014 mother was heard by prosecutor as witness

12/2014 arrested on same day after her statements

TV showed her interrogation in 6/2016

remedies (trial) lack of participation, assistance and representation of the accused person (art 178 left (c) It. criminal code)

general nullity

effect (art. 185): invalidation of the subsequent acts which depend on the null act; renewal of same act; return of the proceedings to the stage or instance in which the null act was performed

remedies (trial/2) lack of partecipation of the defense lawyer is absolute nullity

“The nullities (..) deriving from (..) the absence of his lawyer in cases where his presence is compulsory, shall not be regularised and shall be raised of the court’s own motion at any stage and instance of the proceedings.” (art 197)

remedies (triAl/3)

lack of assistance and representation is a relative nullity can be raised also of the court’s own motion, but shall neither be raised nor advanced after deliberation of the first-instance judgment or, if they emerge during the trial, after deliberation of the judgment of the next instance (art. 180)

When the presence of the lawyer of the accused is required and the retained or court-appointed lawyer (..) have not been found or have not appeared or have left the defence, the court shall appoint an immediately available substitute lawyer.

Under the same circumstances, the Public Prosecutor and the criminal police shall request (another Court appointed lawyer), except for urgent cases in which another lawyer who is immediately available is appointed by a reasoned decision specifying the reasons for urgency. (art 97/4)

ineffective right?“The Convention is intended to guarantee rights that are practical and effective”

(ECHR, CASE OF S. v. SWITZERLAND, application no. 12629/87, 28 November 1991).

www.canestriniLex.comt @canestrinilex  g+ +canestrinilex f canestrinilex