Arrest of a U.S. Citizen in Italy

General information is available on the "Assistance to U.S. Citizens Arrested Abroad" webpage on the "travel.state.gov" website.

Information on Italian Criminal Laws and Procedures

The following information is provided as a general overview of Italian criminal laws and procedures, which can differ greatly from those in the U.S. It is not intended to substitute for advice from a lawyer licensed to practice in Italy. For definitive legal guidance and advice, victims of crime should consult a lawyer. For a list of English-speaking attorneys please see: http://italy.usembassy.gov/acs/professionals/lawyers/lawyers-main.asp

Italian criminal law is codified in the Codice Penale (Criminal Code), in special legislation, and in the Codice di Procedura Penale (Code of Criminal Procedure.) A fundamental principle of Italian law is that neither a citizen nor a foreigner can plead ignorance of the law as an excuse for not complying with the law. All people are equal before the law without privileges or exemptions, regardless of sex, social status, or race. There are no evidentiary rules under Italian law, and there is no writ of habeas corpus as protection against illegal imprisonment.

Criminal procedures begin with the "notizia di reato" (notification of a crime) at the Public Prosecutor’s Office by the "Polizia Giudiziaria" (Judicial Police) or by any citizen.

ARRESTS:

A person can be deprived of his liberty in order to compel his/her appearance before a court to answer a criminal charge. An arrest is mandatory in Italy when a law enforcement officer witnesses the commission of a crime (arresto in flagranza) or when a person is found in possession of tangible evidence of a crime. Arrest is compulsory when the offense carries a penalty of more than five years' imprisonment.

The Public Prosecutor can also ask for preventive detention (fermo di indiziato di delitto) while an investigation is pending, if there is very serious incriminating evidence against the accused or if there is a danger that s/he might flee the jurisdiction. In addition to the order of arrest, the district attorney (procuratore) must obtain the approval of the preliminary investigative judge within 48 hours of the arrest. During the 48-hour period thereafter, a hearing must be held to obtain the formal approval (convalida dell'arresto or del fermo) from the preliminary investigative judge. If this procedure is not followed or the formal approval is not granted by the preliminary investigative judge, the accused must be released.

At the preliminary hearing, the public prosecutor and the defense counsel present their cases and the preliminary investigative judge can either:

Disapprove the arrest or preventive detention and order the immediate release of the accused; or
Approve the arrest or the detention of the accused until trial.

Prisoners awaiting trial (or, if already convicted, awaiting the outcome of an appeal) are sometimes conditionally released (rimessione in libertà). The granting of a conditional release is completely at the discretion of the responsible judge. Conditional release generally will not be granted in the case of a prisoner deemed likely to commit another crime if released while awaiting trial, or if the charges are particularly serious. When granting a conditional release, the judge can limit the movement of the accused by ordering him/her to remain in Italy, to not reside in a certain area, or to stay in a hospital or other facility.

The accused has the immediate right to see his attorney, before being arraigned by a judge. If the accused does not have an attorney, the Public Prosecutor's office will select a public defender (difensore di ufficio) from an available list of attorneys.

The right to an attorney immediately after arrest can be suspended by written order of a judge for up to seven days, but only in the most serious of cases. The Public Prosecutor must establish, to the approval of the preliminary investigation judge, that total isolation of the accused is necessary to prevent any hindrance to the investigation.

Defense counsel's presence is mandatory during the interrogation of the accused and at the preliminary hearings to either dismiss the charges or set a trial date. The Public Prosecutor must give defense counsel at least 24 hours notice regarding any inquiry, hearing, disagreement, or substantiation of evidence that involves the accused.

An American consular officer will visit any U.S. citizen in jail as soon as possible after his/her arrest. Consular officers cannot obtain a prisoner's release. A consular officer's responsibility is to: ensure that the accused is receiving the same treatment that is accorded to anyone facing a similar charge in Italy, that the accused is receiving due process under Italian law, that he/she is not being discriminated against because he/she is American, that he/she is not being mistreated, and that he/she is being represented by an attorney of his/her choice. The consular officer will provide the accused with a list of attorneys from which the accused may select an attorney. It is the responsibility of the accused to reach agreement with the attorney over fees and conditions of the defense. The U.S. Government and its consular officers are not authorized to meet prisoners' expenses, including attorney's fees.

INVESTIGATIONS:

A preliminary investigation is conducted by the judicial police at the direction of the Public Prosecutor. In some cases, the Public Prosecutor personally investigates cases. A preliminary investigation may involve inquiries, examination of witnesses, identification of suspects, confrontations, sequestrations, telephone and mail intercepts, and other similar procedures.

The Public Prosecutor’s Office has a maximum of six months to a year (depending on the nature of the crime) to carry out an investigation of a suspect. If an investigation develops into a very complex case (e.g. if the investigation has to be carried out abroad or if the case cannot be concluded in the time allowed), the term for completing the investigation may be extended to between 18 months and 2 years. The average length of investigations carried out after the “notification of a crime” is approximately one year.

After an investigation is completed and if the Public Prosecutor’s Office determines there is sufficient evidence to support the charge, he/she may ask the magistrate (judge) to proceed with an indictment and trial. If the prosecutor determines there is not enough evidence to support the charge or presumes the suspect is innocent, he/she can ask the magistrate in charge of the case to terminate the procedure. If the magistrate concurs, the case is closed.

HEARINGS AND TRIAL:

After an investigation is completed and if the Public Prosecutor’s Office determines there is sufficient evidence to support the charge, he/she may ask the magistrate (judge) to proceed with an indictment and trial. If the magistrate agrees with the Prosecutor, he/she sets a hearing date with the appropriate court. The “Tribunale Penale” (Penal Tribunal) has original jurisdiction in criminal cases. As with U.S. criminal law, Italian law recognizes a distinction between misdemeanors and felonies, with felonies carrying longer sentences.

If the preliminary investigation produces significant evidence against the accused, the Public Prosecutor specifies the charges in his/her request to set the case for trial. The preliminary investigation judge sets a date for a preliminary hearing (udienza preliminare) in which the accused can defend him/herself against the charges specified by the Public Prosecutor. If the judge determines that the evidence against the accused is sufficient, he/she will order the case to trial (rinvio a giudizio). The judge can, however, disagree with the Public Prosecutor and decide to close the case without proceeding to a trial.

ABBREVIATED TRIAL (Giudizio Abbreviato): The accused, with the concurrence of the Public Prosecutor, may ask the judge to render a verdict without the case going to a full trial. In the event of a guilty verdict, requesting an abbreviated trial entitles the accused up to a one-third reduction in the prison term for the crime. Abbreviated trial convictions may be appealed.

PLEA BARGAINING (Patteggiamento): The accused and the Public Prosecutor may agree to a reduced prison term in the event of a guilty plea. The conviction cannot be referred to in any civil or administrative case arising in connection with the criminal charge in question. There is no right of appeal and the conviction becomes final immediately. The right to plea bargain is also available in the courts of appeal.

EXPEDITIOUS TRIAL (Giudizio Direttissimo): When determined the accused is guilty because of indisputable evidence or is caught committing a crime, a trial can take place within fifteen days following the confirmation of the arrest. Alternatively, approval of the arrest and immediate trial can take place within 48 hours of the arrest.

DEPORTATION: Occasionally, a foreigner will be given a foglio di via by the police. This is an order to leave Italy by a specific date, rather than be arrested and stand trial. Deportation orders may also be issued after a foreigner has been convicted, given a suspended sentence, or has completed serving his/her sentence.

PENALTIES:

Penalties for crimes can range from a fine to up to 30 years imprisonment. Italy does not employ the death penalty.

Italian legislation offers a wide range of measures falling under the category of “community-based penalties and measures”:

“Measures alternative to detention”, for prisoners serving definitive sentences, include:

a probationary period of custody under the auspices of Social Services
house arrest
semi-liberty (e.g. work release)
early release (i.e. sentence reductions)

“Penalties replacing short prison sentences”, which are imposed by the presiding judge. When deciding on a prison term of up to one year, a judge may rule for semi-liberty or up to 6 months' supervised liberty. Prison terms of up to 3 months may be replaced with a corresponding fine.
“Conditional release”: A person sentenced to imprisonment whose conduct, while serving the sentence, shows evidence of rehabilitation, may be granted "conditional release" after having served at least one-half of the sentence, or at least three-quarters in the event of recidivism, and at least 26 years in the case of a life sentence.
“Victim-Offender Mediation”: Lesser offenses are prosecuted only on the basis of the action of the victim. In such cases, the prosecutor may call the victim and the offender to appear for mediation. If the parties reach agreement, the proceedings are dropped.

USEFUL TERMS:

THE POLICE FORCE (Polizia Giudiziaria): The judicial police force includes the State Police, the Carabinieri (military police), the Guardia di Finanza (fiscal police), the Polizia Municipale (municipal police), and special forces assigned to specific areas (e.g. harbor police.)

PUBLIC PROSECUTOR (Pubblico Ministero): Supervises judicial police investigations and in certain cases personally conducts investigations against the accused.

DISTRICT ATTORNEY (Procuratore della Repubblica): Files charges against the accused.

ASSISTANT DISTRICT ATTORNEY (Sostituto Procuratore): Handles cases as designated by the District Attorney.

ITALIAN CRIMINAL COURTS:

Tribunale Penale (Penal Court) has original jurisdiction over criminal cases.

Corte d'Assise (Assize Court) has primary jurisdiction over major felonies such as murder and manslaughter.

Corte d'Appello (Appeals Court) hears appeals from the Tribunale. The average length of proceedings before courts of appeal is generally from two to three years.

Corte d'Assise d'Appello (Assize Appeals Court) hears appeals from the Assize Court. The average length of proceedings before courts of appeal is generally from two to three years.

Corte Suprema di Cassazione (Supreme Court) is the highest court in the judicial hierarchy. Appeals before the Corte di Cassazione are heard only on questions of law; the facts established in any previous court’s rulings are not challenged.

Corte Costituzionale (Constituitional Court) has jurisdiction over constitutional matters which affect the distribution of the state's powers.

General information for prisoners in Italy can be found in the Prisoner’s Guide.