Implementation of directive 2013/48/EU, judicial remedies under Italian law .. and beyond.

1. 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

2. Italian criminal justice system
investigation and prosecution
under prosecutors’
supervision (indipendent
from executive)
“semi-adversarial”
(inquisitorial approach)
double file system
(in trial)

3. “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

4. 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

5. 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)

6. 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

7. 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

8. 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)

9. 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)

10. 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).

11. www.canestriniLex.com
t @canestrinilex g+ +canestrinilex f canestrinilex