Italy - OHRH
Transcription
Italy - OHRH
ITALY INTRODUCTION 1. Overview of the system: Italy is traditionally a civil law system, but in the recent decades its criminal procedure has been the subject of a series of legislative reforms which have introduced numerous aspects of the adversarial process typically associated with the common law. In 1988, a new Code of Criminal Procedure ( Codice di Procedura Penale or CPP)—inspired, among others, by the principles of equality of arms, impartiality of judges, and audi alteram partem admission of evidence—radically innovated the previous inquisitorial tradition, so that now the Italian system can be properly classified as a ‘mixed’ one. This system is characterized by a fundamental separation between the investigative phase and the trial phase. Criminal proceedings are initiated by a public prosecutor (Pubblico Ministero or PM) who is responsible for the conduct of the investigation and the presentation of the case at trial. His investigative activity is overseen by a judge (Giudice per le Indagini Preliminari or GIP), who is different from both the judge who decides on the confi rmation of charges and the judge(s) who sit at trial. Pursuant to Article 112 of the Italian Constitution, the exercise of prosecutorial powers is compulsory. This means that the PM has a duty to investigate the allegations brought to his attention and , normally within six months, decide whether to initiate proceedings or drop the charges (see infra para. 9). His decision is supervised by a judge (Giudice dell’Udienza Preliminare or GUP) in the course of a preliminary hearing (UP), which ensures that the du ty to prosecute has been complied with. Both at the pre-trial and trial stage, judges are typically triers of fact. However, the most serious crimes —primarily, those carrying a maximum penalty of 24 years of imprisonment or higher 1—are tried by a bench composed of two professional judges and six lay judges. In these cases, professional and lay judges decide together on both the fact s and the law. 2. Definition of victim: The 1988 Code of Criminal Procedure draws a clear distinction between victims of the crime stricto sensu and persons injured by the crime. The Code refers to the notion of ‘victim of the crime’ ( persona offesa dal reato) in various sections, but it does not provide a definition. The majority of scholars identify the victim as the holder of the interest(s) protected by the criminal provision that has allegedly 1 See Article 5 CPP. been violated. 2 This approach has been followed by the Supreme Court of Cassation. 3 The person injured by the crime (danneggiato dal reato), on the other hand, is the person who suffered physical or mental harm as a consequence of the crime. 4 The two notions may—and in most cases do—overlap, but they remain conceptually distinct and have different significance in the proceedings. The fundamental difference lies in the fact that only injured persons can bring their civil claims against the accused within the criminal proceedings. The choice between filing a lawsuit before a civil court and bringing the claim in the criminal proceedings rests freely on t he injured person. When the injured party decides to bring his claims before the criminal judge, he becomes a party to the criminal proceedings (parte civile) according to Article 76 CPP. Conversely, the status of victim in itself does not entail that the person concerned becomes a party to the proceedings. The law entrusts the victim with a number of passive and active rights, and Article 90 CPP provides for a general right to submit pleadings and show evidence to the prosecutor and the judge at any stage of the proceedings (with the exclusion of the proceedings before the Court of Cassation, where new evidence cannot be introduced). It has been highlighted that the role of the victim is particularly i mportant during the investigative phase, where it is additional and supporting to the role of the prosecutor. Its function, in particular, consist of overseeing and prompting the activity of the latter with regard to the conduct of the investigations, gath ering of evidence, and exercise of prosecutorial powers; however, the victim does not have autonomous powers to initiate criminal or civil proceedings. Therefore, its role is limited by that of the prosecutor and the parte civile. 5 Finally, Article 90(3) extends the status of victim to the immediate family of the person who deceased as a consequence of the crime for the purpose of exercising the related rights. 3. Lodging a criminal complaint: Pursuant to Article 330 CPP, the prosecutor and a specialised police forces (polizia giudiziaria) acquire notice of the commission of crimes (notitia criminis) autonomously or through complaints brought by third parties. Public officials have a duty to report the crimes of which they become aware while discharging their functions; such report must be in written form and it is handed in to the prosecutor or polizia giudiziaria ‘without delay’ (Article 331 CPP). Private Spangher, La pratica del processo penale (Vol. 3, CEDAM 2013) 150; Gaito, Codice di procedura penale ipertestuale commentato (UTET 2012) 475. 3 Cass. Sez. Un. 21.4.1979, Pelosi; Cass. Sez. Un. 25.10.2007, Pasquini. 4 Gaito, 477. 5 Spangher, ‘I soggetti’ in Conso and Grevi (eds), I profili del nuovo codice di procedura penale (3rd ed, Padova 1993) 80. 2 citizens, including victims of the offences, have the right to lodge a complaint concerning the crimes of which they have knowledge. In this case, the criminal complaint can be lodged orally or in written form , in person or through an agent ; if presented in written form, this must bear the signature of the person who files the complaint or a representative (Article 333 CPP). Irrespective of the person who files the complaint, this must include a description of the essential facts and state the date on which the notitia criminis has been acquired, together with the sources of evidence which are known at the time. To the extent that it is possible, the complaint must also include the personal details of the person who files the compl aint, any elements concerning the person to whom the facts are ascribed , and those who can give information on any relevant circumstances (Article 332 CPP). No use can be made of anonymous complaints, except for very limited cases provided for under Article 240 CPP. 4. The complaint lodged by the victim of the crime has a special significance in relation to those crimes for which criminal proceedings cannot be initiated ex officio by the prosecutor. Indeed, the complaint of the victim (here known as querela) is sometimes a necessary condition for an action to be brought against the accused due to: (i) the small significance of the interest protected by certain criminal norms (e.g. breaking and entering), (ii) the additional harm that the exposure determined by the proceedings can cause to the victim (e.g. sexual offences), or (iii) the special relationship between the victim and the author of the crime. 6 According to Article 120 of the Criminal Code (Codice Penale or CP) and Article 336 CPP, every person who has been the victim of such crimes has the right to file a querela. Unless otherwise stated, the querela can be lodged within three months since the commission of the crime, but this right can be waived if the victim acts in a way that is incompatible with it (Article 124 CP). The querela is subject to the formalities of a standard criminal complaint and, if there is a plurality of victims, it is sufficient that it comes from one of them (Article 337 CPP and Article 123 CP). Slightly different from the querela, is the so-called istanza di procedimento, which is an act through which the victim of a crime committed outside the Italian territory demands that criminal proceedings be initiated before the Italian judiciary. Pursuant to Article 341 CPP, the istanza is lodged following the same formalities of the querela. 5. No specific conditions are set out in relation to international crimes. 6 Mantovani, Diritto Penale (7th ed, CEDAM 2011) 238. 6. Private prosecution: A mechanism of purely private prosecution is absent in the Italian system and would reasonably collide with the PM’s duty to prosecute enshrined in Article 122 of the Constitution. However, the Decreto Legislativo 28 agosto 2000 n. 274 (d.lgs. 274/2000) has introduced a limited power for private parties to initiate criminal proceedings in relation to minor offences before the Justice of the Peace (Giudice di Pace). The Giudice di Pace is an honorary judge that has a special jurisdiction on matters that pertain to small controversies between privates, including minor offences of limited social concern (Article 15 Legge 24 novembre 1999 n. 468 and Article 4 d.lgs. 274/2000). In the light of this particular competence, victims of crimes whose proceedings are contingent upon the submission of a querela (v. supra) can bring their action directly against the accused by summoning him before the Giudice di Pace. This action, which closely resembles private prosecution, is in fact a mixed procedure. Firstly, direct summoning of the accused remains alternative—and cumulative—to the standard filing of a criminal complaint in the forms of a querela. If the victim decides to bring his claims directly against the accused, he must file his summons to appear before the registry of the Giudice di Pace within three months since the moment the alleged criminal facts became known (Article 22(1) d.lgs. 274/2000). According to Article 21, the summons to appear must contain: (i) the identification of the elected judge; (ii) personal details of the plaintiff (victim) and his legal counsel; (iii) the identification of other victims—if any; (iv) personal details of the accused summoned; (v) a clear description of the facts and the charges brought against the accused; (vi) documents and other exhibits which are tendered into evidence; (vii) a request for the initial hearing to be set; (viii) the signature of the victim. However, prior to filing the summons, the victim must give notice of it to the office of the public prosecutor. This allows the PM to oversee the proceedings and intervene in them—within 10 days—if he so deems appropriate (Article 25 d.lgs. 274/2000). Nonetheless, the PM’s intervention is not necessary and proceedings can commence upon the exclusive initiative of the victim. If injured by the crime, the victim can also bring his civil claims against the accused by requesting to become parte civile in the proceedings (Article 23). The costs of the proceedings is regulated by the general rules; if found guilty of the charges against him, the accused is convicted to pay for the costs of the proceedings (Article 535 CPP). T he victim will bear the costs of his legal assistanc e—unless entitled to legal aid—but if the civil claims brought as parte civile are upheld, he can be awarded compensation for such costs together with damages (Article 541 CPP). 7. No specific conditions are set out in relation to international crimes. QUESTION 1: IN LIGHT OF RELEVANT LEGISLATION, CASE LAW AND POLICY DOCUMENTS, DOES YOUR JURISDICTION PROVIDE FOR VICTIM PARTICIPATION IN CRIMINAL PROCEEDINGS FOR ALL ALLEGED VICTIMS IN ANY OF THE FOLLOWING FORMS? 8. The supranational framework: On 25 October 2012, the Parliament and Council of the European Union approved the Directive 2012/29/EU establishing ‘minimum standards on the rights, support and protection of victims of crime ’. According to Article 1, the purpose of the Directive is ‘to ensure that victims of crime receive appropriate information, support and protection and are able to participate in criminal proceedings’. Its content is profoundly innovative from an Italian perspective, in that it assigns a primary role to an actor that the 1988 Code of Criminal Procedure has been left in a rather marginal dimension. The Directive provides an autonomous definition of ‘victim’ 7 and, where a person’s death was directly caused by the criminal offence, it extends the relevant rights to its family members (Article 1). As to the rights set out in the Directive, these include a great variety of substantial and procedural prerogatives, such as : (i) the right to receive information from the first contact with a competent authority and to obtain free interpretation and translation (Articles 4 and 7); (ii) access to confidential victim support services (Article 8); (iii) extensive rights of participation in the proceedings, including the right to be heard and to object the decision not to prosecute (Articles 10 and 11); (iv) right to legal aid (Article 13); and (v) right to protection (Article 18). To date, Italy has not given implementation to the Directive . The Italian Parliament has commenced the relevant legislative process and approved the Legge 6 agosto 2013, n. 96 (Legge di delegazione europea 2013 ). The Legge delegates the power to implement the necessary acts to the Government; however, this legislation is yet to be enacted. The deadline for the transposition of the Directive is 16 November 2015. 9. Duty to investigate: As mentioned above, the constitutional duty to prosecute implies that the PM and the police forces have the duty to investigate each notitia Article 1 (a)(i): ‘a natural person who has suffered harm, including physical, mental or emotional harm or economic loss which was directly caused by a criminal offence’. 7 criminis of which they receive notice or become aware autonomously. These notitiae are ‘immediately’ recorded by the PM in the Official Registry of the Reported Offences (registro delle notizie di reato) which is regularly updated throughout the investigations (Article 335 CPP). The rec ord of this information can be kept confidential for investigative purpose only for a period of three months by means of a motivated decree of the PM (Article 335(3 -bis) CPP). The PM has normally six months to complete his investigation; this term is longer for particularly serious offences and can in any case be extended every six months upon request of the PM to the GIP, for a maximum period of 18 months (Article s 415-416 CPP). Once the term is expired, the PM must decide whether to prosecute the alleged offender or to apply for dismissal of the case to the judge of preliminary investigation ; the victim has the power to intervene at this stage (see infra). The fact that the investigation commenced upon a complaint being filed by the alleged victim does not affect the conduct of the proceedings. These being a compulsory activity, there is no general means to enforce investigation as such. The victim, however, has the duty to receive copy of his complaint, which includes a Protocol Number that can be used by the victim to contact the authorities and track at any time the status of his complaint. The victim is then entrusted with a number of rights that allow him to oversee the activity of the prosecutor and promote the performance of specific acts. 10. Failure to report: Failure to report a criminal offence of which a public officer had become aware while discharging his function is a crime under Article 361 CP. When the public officer is a member of the police for ces, he can be sentenced up to oneyear imprisonment, unless criminal proceedings require the special complaint (querela) of the victim. The agent who is responsible for thi s omission is also subject to disciplinary action pursuant to Articles 16 -19 of the Decreto Legislativo 28 luglio 1989, n. 271 (‘disp.att.’); such action is promoted by the general prosecutor before the Court of Appeal of the district where the agent is in service. The victim of this omissions can therefore lodge a separate complaint to the prosecutor or other police forces, according to the general rules. 11. Rights of the victim during the investigation phase : As mentioned above, according to Article 90 CPP, the victim has the right to file pleadings and provide an indication of relevant evidence at any stage of the proceedings. In the investigation phase, pleadings are generally filed before the GIP , while indication of evidence is given to the PM. However, when the judge and prosecutor receive these submissions, they are in no duty to take any specific actions in their regards. 8 The victim has a number of rights relating to the acquisition of evidence in the pre -trial phase. Evidence are normally admitted at trial, but where there is concrete risk that a piece of evidence may be lost or tampered if its acquisition is postponed at a later stage, the prosecutor may request that the evidence be admitted during a particular pre trial hearing called ‘incidente probatorio’ (Article 392 CPP). 9 The victim has the right to be informed of the date and place where the hearing takes place and to participate in it (Article 398 CPP). With the assistance of a legal counsel, the victim is entitled to access part of the case file and prior statements of the individual to be heard during the pre-trial hearing; in this context, the victim’s counsel can also participate in the examination of such person (Article 401 CPP). If the subject of the hearing is the acquisition of an expert-opinion, the victim can nominate his own expert. 10 The victim can also submit a request for the PM to set up a pre-trial hearing for the acquisition of specific evidence. The PM is not obliged to grant this request, but if he rejects it, he must do so by means of a motivated decree (Article 394 CPP). 12. The victim is entitled to receive a numb er of additional communications on the development of the investigation. The prosecutor must give notification to the victim of copy of the document containing the charges that he serves to the accused during the investigation phase (Article 369 CPP). If he has previously so demanded, the victim must also receive notice of the prosecutor’s request for an extension of the time limit for the investigation. Upon receiving this communication, the victim has five days to submit pleadings to the investigative jud ge as to the denial of such an extension (Article 406). The most important communication, however, concerns the decision of the prosecutor to apply for the dismissal of the case against the suspect under Article 408 CPP (see infra para. 16). 13. In order to exercise their prerogatives, victims can appoint a legal counsel to assist them and participate in the proceedings (Article 96(2) CPP). As seen above, the performance of certain acts is permissible only through a counsel; therefore, although not compulsory at this stage, such an appointment broadens the ability of the victim to participate in the proceedings. While the right to counsel is always guaranteed, legal aid is provided only in some circumstances. Victims of certain offences (such Amodio, 550. The pre-trial hearing takes place in camera, before the judge of the preliminary investigations, in the presence of a prosecutor and counsel. Statements given at the pre-trial hearing count as evidence in subsequent proceedings. 10 C. Cost. 28.12.1990, n. 559, in CP, 1991, 131. 8 9 as mafia offences and sexual offences) are entitled to receive free legal aid (see infra para. 41). Otherwise, victims receive free legal aid and assistance only if their income is particularly low. 11 In order to render their rights more effective, victims are entitled to perform their own investigation, called ‘defensive investigation’ via counsel or private investigator aimed at collecting relevant evidence (statements of informants, documents from public administration, etc.) (Articles 391bis-391decies CPP). Such investigation may be used in special proceedings (such as summary proceedings or plea-bargaining) as evidence equal to the investigation by the prosecution. a) Are there provisions for support services (including counselling, use of interpreter, interim compensation and other measures) at the time of complaint? 14. The Italian system presents an evident lacuna in relation to support services for the victims of crime. Support centres are almost entirely non-existing, with only a few exception represented by private non-profit organizations. 12 No counselling service is provided for victims who approach the authorities to lodge their complaints. Even the right to use an interpreter and to obtain copy of the essential documents in a language that the individual can understand are rights recognized as such only in relation to the accused (Article 143 CPP). This gap is so evident that the Supreme Court of Cassation has recognized the admissibility of a special complaint ( querela) even where translated with the assistance of unqualified personnel at the time it was lodged. 13 The victim as such cannot request interim measures in the investigation phase. The status of the Italian discipline on the matter is therefore unsatisfactory and seems in contrast with the relevant obligations arising from the EU legislation. 14 b) 15. Are there provisions for witness protection during the investigation? Victims who give their testimonies during criminal proceedings can benefit from the witness protection programme established by the Decreto legge 15 gennaio 1991, n.8 as amended by the Legge 13 febbraio 2001, n. 45. According to Article 16bis of the Decreto, in order to qualify as a protected witness the individual must be either a victim of the crime or a person who has information on the crime, and must not be subject to any restrictions for public security reasons. Moreover, the information provided by According to Article 76 of the Testo Unico delle Spese di Giustizia (D.P.R. 30 maggio 2002, n. 115), in order to benefit from free legal aid, the victim’s family income must be lower than 11,369.24 euros per annum (plus 1,032.91 euros for each additional member). 12 See e.g. http://www.associazionelibra.com (25 March 2015). 13 Cass. Pen. Sez. V sent. n. 17967 del 19 aprile 2013. 14 Silvio Sau, Le garanzie linguistiche nel processo penale (CEDAM 2010) 171. 11 the witness must be ‘reliable’. If the individual who provided such information to the authorities is exposed to serious and imminent thr eat due to his testimony, the witness, his close relatives, and those who are endangered by his declarations are entitled to a number of protective measures. Pursuant to Article 16 ter of the Decreto, these measures aim at both protecting the physical integrity of the witness and his family and ensuring financial assistance in order to grant them a reasonable standard of living. These measures may also entail the change of location and identities of their beneficiaries. The protective measures are suggested by the prosecutor and administered by a specialized administrative commission appointed by the Secretary of State and Ministry of Justice (Commissione centrale per la definizione e applicazione delle speciali misure di protezione). The Commission decides on the admission to the programme, issues the measures, and determines their contents. The measures remain in force even after the conclusion of the proceedings, until the threat has ceased. c) 16. Are the alleged victims consulted while deciding whether to prosecute? At the end of the investigation, if the Prosecutor considers that he has not sufficient elements to bring a case against the suspect, he must submit a request to the investigative judge (GIP) and demand that the case be closed without trial. The prosecutor reaches this determination autonomously, without consulting beforehand with the victim. However, where the victim has made a specific request in this regard (either in the complaint or in a sub sequent pleading), he must receive notice of the PM’s request and has the right to access the case -file submitted by the PM to the GIP (Article 408). If such notice is omitted, the victim has the right to appeal the decision to close the case directly befo re the Supreme Court of Cassation (Article 409(6) CPP). Upon receiving notice of the PM’s request to close the case, the victim is given a fundamental opportunity to challenge this determination by appealing against such a request to the GIP (Article 410 CPP). The victim’s application must contain an indication of the object on which further investigation is deemed necessary and of the evidence that support his allegations. In order to exercise this right, the use of the ‘defensive investigation’ is therefore of critical importance. If the GIP considers this application inadmissible, he can uphold the PM’s request and close the case. Otherwise, the GIP convenes a hearing pursuant to Article 409 CPP in which he can instruct the PM to c arry out further investigation or bring charges against the accused. 17. Once the term for the investigation is expired, if the PM neither request s to close the case, nor brings his charges against the accused, the victim may require the direct engagement in the investigation of a Higher Prosecution office, which is the prosecution office that is normally responsible for appellate proceedings (Article 412 CPP). 18. Where the prosecutor, at the end of the investigation, decides to continue the proceedings and bring a case against the accused, he must notify him of this decision, giving also notice of the charges against him (Article 415 bis). A request is then formulated for the judge of the preliminary hearing (GUP) to set up the trial (Article 416 CPP). At this point, the victim is informed of the date of the first hearing—20 days before a trial requiring a preliminary hearing, and 60 days before if a pr e-trial hearing is not required (Article 419 CPP). The victim cannot influence the content of the charges as notified to the accused. 19. The rights of the victim at this stage ha ve been examined in the previous section. d) 20. What are the rights available to the alleged victims in relation to the trial? The means by which victims can influence the conduct of the investigation have been examined in the above section dedicated to the rights of the victims at this stage. 21. Pre-trial detention: Alleged victims can exercise their general right to file pleadings and provide an indication of relevant evidence pursuant to Article 90 CPP in the context of decisions on pre-trial detention. Following a recent legislative amendment, a number of measures can be taken at this stage in relation to domestic violence offences (see infra para. 42). However, Article 299 CPP—which was amended by the same act—now prescribes a duty to communicate any modification or withdrawal of precautionary measures (including pre -trial detention) to the victim of offences ‘committed with violence against the bodily integrity’. This duty is directed at enhancing the participation of victims in these decisions and was originally introduced in combination with the provisions on domestic violence. However, the broad formulation of the new norms has made unclear whether this duty exist in broader terms. Recent decisions on the point are contradictory. 15 22. The rights of the victim during the investigations have been examined above. 23. Rights of the victim at trial: Following the conclusion of the investigat ion phase, the rights of the victim as such become less and less significant. This is evident since See Giovanni Zaccaro, Revoca o sostituzione della misura cautelare e coinvolgimento della persona offesa. Ambito di applicazione del novellato art. 299 cpp, at http://www.questionegiustizia.it/articolo/revoca-o-sostituzione-della-misura-cautelare-ecoi_22-01-2014.php (25 March 2015). 15 the preliminary hearing where the GUP decides on the confirmation of the charges. The victim as such has only the right to be informed of the date of the he aring, to access the case-file, and make copy of the relevant documents (Article 419 CPP and Article 131 disp.att.). The ‘mere’ victim cannot take part in the preliminary hearing . This is due to the fact that, starting from this moment, the victim wh o is also injured by the crime—as it is normally the case—can decide to enter the proceedings as parte civile by bringing his civil claims against the accused. The parte civile is entrusted with almost all the prerogatives that would be reasonably exercised by the victim—whose activities in the investigation phase are therefore ‘instrumental’ to this natural evolution. 16 However, civil claims cannot be brought in criminal proceedings where the accused is a minor, pursuant to Article 10 of the D.P.R. 22 settembre 1988, n. 448. 24. The injured person becomes a parte civile by filing a declaration pursuant to Article 78 CPP. This declaration must be filed either during the preliminary hearing or at the first hearing at the beginning of the trial; if the action is brought after this term, the parte civile may not make use of the possibility of presenting witnesses, experts or technical advisors. The declaration must include a formal indication of all the subjective and objective requirements of the civil claim against the accused and may be both filed with the registry of the judge who has jurisdiction or given directly in court. Finally, the declaration must contain the signature of the legal counsel of the parte civile; in order to exercise the relevant rights, the parte civile must therefore receive legal assistance. If the parte civile meets the condition set out in the Testo Unico delle Spese di Giustizia in relation to his income, he is entitled to receive free legal aid. 25. Through his legal counsel, the parte civile can exercise a number of rights during the trial. His activities are normally situated after the presentation of the case by the prosecutor and prior to the beginning of the defence case, or in any case after the prosecutor has intervened and before the couns el of the accused takes the floor. These include: 16 - Delivering oral statement during the preliminary hearing (Article 421 CPP); - Presenting evidence at trial (Articles 493 and 496 CPP); - Calling witnesses (Article 497 CPP); - Cross-examining witnesses called by other parties (Article 498 (2) CPP) ; - Delivering closing arguments (Article 523 CPP) . Spangher, 157. In the Italian system, the concept of objections is lacking, therefore the parte civile does not have the right to raise them. As to the support to the victim during trial, the same remarks made above about the existence of a gap in the investigation phase remain valid at the trial stage. However, thanks to a decision of the Constitutional Court in 2007, if a parte civile benefits from free legal aid and does not speak fluent Italian, he has the right to appoint an interpreter free of charge, similarly to what is recognized to the accused under Article 102 of the Testo Unico delle Spese di Giustizia . 17 26. When a victim is called to testify in court, regardless of being a parte civile, the judge can order that the testimony be given ‘behind closed doors ’—which means that the only people authorized to remain in the courtroom are thos e who are entitled to intervene—when it deems this measure necessary to ensure the safety of the witness (Article 472(2) CPP). The testimony of the individuals who have been admitted to a witness protection programme can also be obtained via videoconference (Article 147bis disp.att.). In this case, an assistant of the court must accompany the witness, confirm his identity, and remain with him during the acquisition of the testimony. e) At the time of sentencing, are there any provisions for victim impact statements? Is the reward of compensation allowed at sentencing? If yes, who bears this cost? Are there any other forms of rehabilitation guaranteed to AVs? Do these depend on a finding of guilt? 27. Victim impact statements: The Italian system contains no provisions with regard to victim impact statements. 28. Compensation: If a victim has joined the proceedings as parte civile, his civil claims will be decided together with the decision on the criminal responsibility of the accused. Throughout the proceedings, the counsel for the parte civile must prove the damages that his client has suffered as a consequence of the crime. In the concluding statement, the counsel must also specify the amount of compensation required from the offender in a written pleading (Article 523(2) CPP). The award of compensation depends on the finding of guilt of the accused; provided this, the judge can order the convicted person to pay compensation for the harm caused to the parte civile and for the expenses that the latter has incurred in during the proceedings (Articles 538 and 541 CPP). If the amount of the compensation cannot be determined at that stage, the judge can merely recognize the existence of such obligation and direct the parte civile to seek its determination before a civil court (Article 539 CPP). However, if the 17 C. Cost., sent. n. 254 del 6 luglio 2007. accused is found not guilty, the judge may order that the parte civile pay compensation for the expenses that the accused has met while defending himself against the civil claims (Article 541 CPP). 29. Rehabilitation: The only form of reparation other than eco nomic compensation that is recognized to the victim of the crime is the publication of the final judgement. This is ordered by the judge upon request of the parte civile and must be paid for by the convicted person (Article 543 CPP). Other forms of rehabilitation for the victims are lacking. f) 30. What rights rest with the alleged victim in respect of the appeal? The victim of a crime cannot appeal a decision on the criminal responsibility of an accused because he is not a formal part to the proceedings. All he is left with is the possibility to request that the prosecutor promote his own appeal. The prosecutor is not bound to comply with such a request, but this not being the case, he must communicate the reasons behind his rejection (Article 572 CPP). 31. The parte civile can appeal against the acquittal decision, but only in relation to the civil claims (Article 575 CPP). This appeal must be lodged within 30 or 45 days, depending on the complexity of the case (Article 585 CPP). If the Appeal Court uphold the request of the parte civile and the prosecutor has not filed an appeal on the criminal matters, the Court can reverse the previous decision only in relation to the civil aspects. In this case, the Court directs the parte civile to bring his claim before the civil judge in order to determine the amount of the compensation due to him (Article 622 CPP). 32. The individual who becomes parte civile before the court of first instance maintains this status also during the subsequent appellate proceedings (Article 76(2) CPP). The parte civile therefore preserves the passive rights that he has held at the previous stage, but his ability to introduce new evidence is limited by the general rules on appellate proceedings. g) Are there any rights available to the alleged victim when it comes to enforcement? 33. After the final judgment, victims have no further prerogative in relation to its enforcement. There is no system in place to ensure information to the victim after the sentencing of the offender, nor is the victim entitled to be informed of the convicted person’s release. No interp retation or translation of documents free of charge, no further access to any documents and no further protection are provided to victims, regardless of their previous role in the proceedings. In particular, they are not entitled to access the proceedings before the Supervisory Magistrate in charge of controlling the imprisonment regime of the convicted person. The only occasion where the victim has some relevance in the context of enforcement is where the offender is placed under the supervision of a social worker. Eligible inmates are indeed given a series of ‘behavioural’ orders by the Supervisory Courts. These orders may demand, where appropriate, that the convicted person take positive action for the benefit of the victim. 18 h) Are there any other rights that facilitate alleged victim participation not covered in the above chapter? 34. All the relevant rights have been covered in the previous sections. QUESTION 2: ARE THERE ANY SPECIAL CATEGORIES OF ALLEGED VICTIMS (EG CHILD WITNESSES, WITNESSES WITH INTELLECTUAL OR MENTAL DISABILITY, WITNESSES ALLEGING SEXUAL ABUSE ETC) TO WHOM THE ABOVE RIGHTS ARE AVAILABLE? IF YES, DEFINE THOSE CATEGORIES AND ANSWER THE ABOVE QUESTION IN RESPECT OF EACH CATEGORY. a) 35. Child victims The minors who are 14-year-old or younger exercise their victim rights through their parents or guardians. The minors who are older than 14 can exercise their rights directly, but parents and guardians maintain their rights to act on behalf of the minor, even where he has objected to their intervention (Articles 90(2) CPP and 120 CP) . 36. Numerous indications as to how to deal with child victims of sexual abuse can be found in a collection of guidelines drafted by a joint commission of lawyers, judges, professors, phycologists, neuroscience experts, and representatives of the police forces. This document is known as Carta di Noto and its latest version was approved on 12 June 2011. 37. Measures to be taken during the investigation phase: where the minor is the victim of child abuse, sex offences, juvenile prostitution, and enslavement, his testimony can be acquired at any time through a specific pre -trial hearing (incidente probatorio) pursuant to Article 392(1bis) CPP. This particular hearing seeks to protect the child from the risk of additional harm caused by the traumatic contact with the 18 Article 47 of the Legge 26 luglio 1975 n. 354. public authorities, in line with the guideline no. 15 of the Carta di Noto. To this end, the investigative judge that order s the acquisition of the testimony can set out particular modalities through which the deposition is to be acquired. In particular, the judge can order that the examination take place outside the courtroom, in specialised facilities or at the place where the child lives. In this case, the deposition must be recorded in full by means of A/V devices (Article 398(5 bis) CPP). This ‘protected’ deposition has been extended by the Constitutional Court to the examination of all the minors younger than 16, regardless of the crime of which they have allegedly been the victims. 19 38. Measures to be taken at trial: The examination of any minor at trial is conducted by the president of the bench, upon requests and indications coming from the parties. The parties cannot, however, examine the minor directly. In order to carry out this inquiry, the judge can avail himself of a member of the child’s family or an expert psychologist. Upon request by one of the parties, the testimony can be acquired according to the modalities of the ‘protected’ pre -trial hearing (Article 498 CPP). Moreover, when the victim is a minor, the trial is always held ‘behind close doors’ for its entire duration (Article 472(3 bis) CPP). 39. All other victim rights are regulated by the general rules outlined above . b) Victims of sexual offences and domestic violence 40. When the victim is also a minor, see section above . 41. By virtue of the Decreto Legge 14 agosto 2013, n. 93 as amended by the Legge 15 ottobre 2013, n. 119, the victims of domestic abuse, stalking, and FGMs are entitled to receive free legal aid regardless of their economic condition and income. 42. Measures to be taken during the investigation phase: The testimony of the victim of serious sexual offences can be acquired by means of the special pre -trial hearing (incidente probatorio) pursuant to Article 392(1bis) CPP. Special precautionary measures can also be taken in these circumstances, such as restraining orders that prevent the suspect from living in the house that he shares with the victim or accessing places that the victim visits on a regular basis. The investigative judge can also order the suspect of these offences to pay a periodic allowance to th e victim or his close relatives (Article 282bis CPP). 43. Measures to be taken at trial: The victim of serious sexual offences can request th e judge that the trial be held in whole or part ‘behind close doors’ (Article 472(3bis) 19 C.Cost., sent. 9 maggio 2001, n. 114. CPP). In this context, no question on the private life or sexuality of the victim is permissible if not necessary to prove the facts of the case. Moreover, according to article 498 (4ter) CPP, the examination of victims of sexual violence, human trafficking, and stalking offences may take place pursuant to the adoption of a number of measures aimed at hiding the voice and face of the victim. Videoconference, however, is still not a permissible means through which provide testimony in this case. 44. All other victim rights are regulated by the general rules outlined above . c) 45. Victims of mafia and terrorism The right to participate in the proceedings are regulated accor ding to the general rules. 46. Since in cases of mafia and terrorism crimes it is unlikely, or difficult, to secure compensation from the offender, victims can apply for compensation to state -run Solidarity Funds. The victims must have brought their civil clai ms (as parte civile) in a judgement against an accused which was subsequently convicted for one of these offences. If they so did, the Legge 22 dicembre 1999, n. 512 and Legge 3 agosto 2004, n. 206 entitles victims of mafia and terrorism offences, respecti vely, to apply for a periodical allowance proportionate to the harm they suffered. CONCLUSION - The Italian system allows victims to participate in the proceedings to various degrees, depending on the stage (investigation or trial) and on the qualification of the victim as a parte civile; - Victims of the crime can file a complaint before the prosecuto r or the police forces, which in minor offences is a necessary condition for the initiation of criminal proceedings; - Private prosecution is only permissible as an option in minor proceedings before the justice of the peace; - There is a duty to investigate all the complaints brought to the attention of the authorities; - Public officers who fail to report a notitia criminis are liable of criminal prosecution a nd disciplinary responsibility; - Victims have the right to file pleadings and provide an indication of relevant evidence at any stage of the proceedings; - Victims have an important role during the investigations, in that the oversee and prompt the activity of the prosecutor; - In this phase, victims receive a number of communication and can promote the acquisition of evidence; - Victims can be assisted by a legal counsel and are entitled to receive legal aid if they meet the conditions; - Support services for the victims are al most entirely lacking; - Victims can be admitted to protection programmes if their sharing of information puts them or their families in danger; - If the prosecutor decides to close a case without trial, he must inform the victim who, in turn, can appeal this determinati on to the investigative judge; - Victims of crimes against bodily integrity are informed of the decision to amend or withdraw pre-trial detention measures; - At the first trial hearing, the victim can file a declaration to become parte civile; - Through his legal counsel, the parte civile can exercise a great variety of rights during trial; - The victim can testify in court and special measures can be taken to ensure his safety; - The parte civile can ask compensation in relation to the damages suffered by the crime , which is awarded upon finding of guilt; - The parte civile can appeal a decision only with regard to the civil claims —otherwise, victims must request the prosecutor to appeal the criminal section of the decision; - Victims have no rights in relation to the enforcement of a judgement; - Child victims are entitled to special protective measures when they give their testimony at both pre-trial and trial phase—the relevant exam can take place outside the courtroom; - Victims of serious sexual offences are entitle d to receive legal aid regardless of their income; - Victims of domestic abuse can obtain protective measures which include restraining orders; - Testimonies of victims of sexual violence must safeguard their private life; - Victims of mafia and terrorism can benefit from compensation from state -run solidarity funds.