The Frustrated Turn to Adversarial Procedure in Italy (Italian Criminal Procedure Code of 1988)
17 Pages Posted: 1 Nov 2005
In 1988, Italy adopted a new Code of Criminal Procedure that was meant to introduce an accusatorial system. This marked a clear departure from the inquisitorial civil law tradition, inherited from the French Napoleonic Code.
An accusatorial process does not necessarily imply a full adversarial procedure-trial where the parties determine the issues to be decided and the evidence to be presented. The accusatorial system can be viewed as the one that strictly separates the investigative stage from the trial, so that only the evidence presented in a public hearing granting the right of confrontation may be used as a basis for the judge's decision, while hearsay evidence is strongly restricted.
In any case, the 1988 reform was not supported by a corresponding evolution of the legal culture. In 1992 the Constitutional Court issued a series of decisions that invalidated some of the basic provisions that sustained the accusatorial process. The Court held that restrictions and limitations to the duty of the judge to seek the truth were unreasonable and violated the constitutional equality clause. As a consequence, Parliament passed a bill that allowed the substantive use of out-of-court statements of witnesses, taking back the accusatorial choice.
The re-establishment of the original system began in 1999, when an amendment to the Constitution was approved that made the right of confrontation mandatory in the criminal trial. In the end (2001) the Code of Criminal Procedure was once again modified, and the principle that evidence should be heard in front of the parties in a public hearing is now in force, with the only exceptions expressly provided for by law.
This paper (which was delivered at the conference "Lawyers and Jurists in the 21st Century", St. Louis, Missouri, November 12-13, 2004) goes over the events that took place since the 1988 reform, and explains the structure of the Italian criminal process through the modifications of the past fifteen years.
Keywords: code, criminal procedure, adversarial system, reform, Italy
JEL Classification: K14, K42
Suggested Citation: Suggested Citation