Appeal in the Italian Criminal Justice: how does the Italian criminal justice system work?
Appeal in the Italian criminal justice system is closely tied to the structure of the Italian judiciary system.
The expression "judiciary system" refers to all bodies endowed with judicial power, that is all bodies having the power to take decisions in order to solve disputes, as provided by the law.
In the narrow sense, the Italian criminal justice system deals with a specific branch of law, that is criminal law.
The following authorities are endowed with judicial power, even though in different matters:
- Justice of the Peace;
- Court of Appeal;
- Court of Cassation.
Starting from the idea that even a Judge can make mistakes, the Italian Judiciary System includes three degrees of judgement, thus giving the sentenced person the possibility to submit an appeal to a different Court, such as:
- The Court of first instance;
- The Court of second instance;
- The Court of third instance.
The functions of the Italian criminal justice are essentially divided in judicial functions (i.e. the power to make decisions) and prosecuting functions, which are peculiar to Public Prosecutors, that is magistrates, who carry on investigations.
The following authorities have first instance jurisdiction in criminal matters:
- Justice of the Peace, having jurisdiction on law-value cases and minor crimes, such as personal injury, insult and defamation;
- Ordinary Courts, having jurisdiction on residual cases, that is those cases, on which the Justice of the Peace or the Court of Assizes have no jurisdiction;
- Court of Assizes, having jurisdiction only on criminal cases, and dealing with major crimes, punishable by a sentence of at least 24 years of conviction. It is a collegiate body, consisting of two magistrates and six judges and six popular judge chosen among persons meeting the requirements provided by the law.
The judgements of the above mentioned authorities can be appealed before second instance Courts, and in particular:
- Judgements of the Justice of the Peace can e appealed before Ordinary Courts;
- First instance judgements of Ordinary Courts, can be appealed before the Court of Appeal;
- The Court of Assizes of Appeal has jurisdiction on the judgements of the Court of Assizes.
The third degree of judgement in Italy is represented by the Court of Cassation, a body with legitimacy control function.
In proceedings before the Court of Cassation, prosecuting functions are carried out by the Prosecutor's general office by the Court of Cassation.
It must be pointed out, that in Italy judgements handed down by Ordinary Courts are not law, since they are binding only upon the parties to the dispute, while they have no binding effects upon the collectivity or upon other courts. On the contrary, they must adapt to the judgements handed down by the United Divisions of the Court of Cassation, which is the only authority entitled to provide jurisprudential orientation on specific matters.
Appeal in the Italian Criminal Justice System: what is the appeal deadline?
In the Italian Criminal Justice System appeal deadlines can vary. On penalty of inadmissibility the appeal must be lodged:
- within 15 days of the decision of the Court, in case this latter has given the grounds for its judgement, or within 15 day of the receipt of the notice of entry of judgement, in case the Court has decided in chambers;
- within 30 days of the decision of the Court, in case the Judge has drafted the reasoning behind the decision within 15 days of the judgement itself;
- within 45 days of the decision, in case the grounds of the judgment have been filed within 90 days of the judgement itself.
The defendant can always appeal:
- judgements ordering conviction or acquittal, but not those ordering full acquittal, acquittal on the grounds of no case to answer, or acquittal due to not having committed the fact;
- judgments which change the type of offence, exclude aggravating circumstances that entail an increase or reduction of the sentence by more than one-third, or establish a penalty other than the ordinary one.
Public Prosecutors can appeal conviction judgements only in particular cases, that is when the latter change the type of offence, exclude aggravating circumstances that entail an increase or reduction of the sentence by more than one-third, or establish a penalty other than the ordinary one.
Neither defendants nor Public Prosecutors can appeal decisions imposing fines or the alternative sanction of fine or imprisonment.
By means of an appeal it is possible to contest a fisrt-degree Court's decision which is deemed unjust.
The Court of Appeal is composed of three Judges (a President and two magistrates), who decide on the case only for the points contested by appeal. The Court of Appeal has thus no jurisdiction on the points which have not been raised in the appeal.
In case the appeal is lodged by a defendant, a second-degree Court cannot:
- order penalties more serious in kind or quantity;
- apply new or more serious measures;
- release an accused due to less favourable grounds that those given in the first degree decision;
- withdraw benefits.
In case the appeal is lodged by a Public Prosecutor, a second-degree Court can order more serious penalties.
Appeal in the Italian Criminal Justice System: presumption of innocence until proven guilty
The Italian Criminal Justice System is based on the principle of presumption of innocence until proven guilty, implying the Court's obligation to acquit the accused person where the evidence of guilt is not clear or in case there is no evidence of guilt at all.
This involves the prohibition to bring forward punishments, while it is allowed to apply precautionary measures. According to the Italian Constitutional Court, this provision should be interpreted as meaning that the accused person should not be considered as guilty or innocent, but only as an accused person.
Appeal in the Italian Criminal Justice System: our services
Arnone&Sicomo Law Firm is a team of experienced professionals in matters of criminal law.
We provide legal assistance before any Italian Court, including the Italian Constitutional Court. We assist both Italian and foreign citizen involved in criminal proceedings in Italy, so that the right to a fair trial is guaranteed
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.