The True Crime Weblog Message Board

Another idea, which came to me while reading TLC's most recent post on the latest open thread: how about collaborating on a brief overview of criminal process in Italy and/or a comparative study of code versus case law? I've found a number of long treatments on the Web, and TLC clearly has loads of information on the subject.
Maybe we could find a way to put all of it together in a user-friendly format. It would serve the dual purpose of providing a perspective for those whose experience is limited to Anglo-Saxon case law and cutting down on the frequency of pointless discussions based on a basic misunderstanding of the process.
This is as far as my thinking has evolved. I was just thinking it would be nice to have something very simple, like a ppt presentation or a brief word document, that I could recommend that somebody read before launching into questions of due process, bail, presumption of innocence and so on.

Hi Skep,

I think that's a good idea. How about posting up the actual Italian Statutes up as a Sticky...I know Nicki and TLC amongst others have posted up a number of those on Haloscan...then disussion could take place below with the statutes above for reference?

EDIT: For Typo, 14 April 2008, Michael.

Good idea, Michael. A translated version would be ideal. TLC and Nicki, if you want to send me rough tranlsations of this material, I can put it in polished form.

Skep, Nicki, Michael (others),


I'll put the links I can find here, then you'll know better to edit what you think is relevant and to the point, I think.
Hope you think that's a good idea Skep, Michael, Nicki.

This first link was very useful. It was compiled for the American department of justice. They take no responsibility for its content as is normal when not having written it. It was wriiten by two Italians, and is reliable. They are both academics and have written a lot together. This is a sketch of what Italian justice contains. It is found then too, on the CIA website, where factual data is found about every country, factual and not written by anyone from the CIA.
1/
http://www.ojp.usdoj.gov/bjs/pub/ascii/wfbcjita.txt

2/
Comparitave Aspects - Adjudication (adversarial and inquisitorial law systems)

http://law.jrank.org/pages/901/Criminal ... ation.html

3/
International Criminal Court

http://www.iccnow.org/

4/
Field Listing - Legal Systems (World Factbook CIA)

https://www.cia.gov/library/publication ... /2100.html

5/
Liberty - Protecting Civil Liberties contains report on pre-detention rules on terrorism but as goes normal circumstances, it was a debate that triggered this report focussed on what an acceptable pre-charge length of detention is, in Britain it is already 28 days, which is longer than anywhere else, and they wanted to lengthen that time length because of the threat of terror. In this way, all countries in Europe and further afield are compared, including Italy where the maximum pre-charge detention length is but 4 days. Not 1 year. It is the understanding of various concepts, the charge concept as understood in Britain and America does not exist in the same way in Italy, France, Germany, Spain, the Netherlands and many other places, 'CHARGES' is an ENGLISH word and an English concept too.

a)
http://www.liberty-human-rights.org.uk/ ... ries.shtml

b) Comparative Law Study from Liberty

http://www.liberty-human-rights.org.uk/ ... -study.pdf

6/
Recommendation No.R (80) 11 of The Commitee of Ministers to Member States Concerning Custody Pending Trial

http://www.legislationline.org/legislat ... less=false

7/
European Prison Recommendations (including rules for untried prisoners as regards communication, visits, education, et cetera).

http://www.legislationline.org/legislat ... 0&lid=4905

8/
Codice Penale I II and III

Part II (part 2) is the part where the crimes committed against Meredith Kercher are all coded.


http://it.wikisource.org/wiki/Codice_Penale

____________________________________

CRIMES COMMITTED AGAINST MEREDITH KERCHER FOR WHICH CHARGES MAY BE BROUGHT INCLUDE THE FOLLOWING

Titled: Crimes Against People (1 Titolo XII: DEI DELITTI CONTRO LA PERSONA)
Header: Crimes Against The Life and Unscatched Individual (1.1 Capo I: DEI DELITTI CONTRO LA VITA E L'INCOLUMITA' INDIVIDUALE)

Homicide (1.1.1 Art. 575 Omicidio) Punishable by not less than 21 years imprisonment.

Homicide With Aggravated Circumstance *Capital Punishment *replaced by life imprisonment (1.1.2 Art. 576 Circostanza aggravanti. Pena di morte) Punishable by 24 to 30 years to life imprisonment.
Aggravated circumstance means, amongst other things, premeditated murder.

Sexual Violence (1.3.2.6 Art. 609 bis Violenza sessuale)
Sexual Group Violence (1.3.2.12 Art. 609 octies Violenza sessuale di gruppo)

The other offence is theft. Breaking into a house is an invasion of someone's privacy and is punished much more severely than a crime like snatching a wallet on the street, or stealing a car.

Thanks, TLC.
I'll look at this as soon as possible.
Any ideas you have about how to present it succinctly would be most appreciated.
I was thinking about doing it in the FAQ format. We could come up with a bunch of questions that people not familiar with the system might ask and provide short answers, plus links to helpful online sources.
What do you think about that?
What does anyone think about that?

Hi Skep,

The FAQ format might be good I can't say I'm a hero in that idea department but I think Kermit might be.

Can you start thinking about good "dumb" questions? Lord knows we have seen many statements that betray a total lack of knowledge. They would be a good starting point.
I'll do the same.
You know, like:
Why are the three suspects sitting in prison when no charges have been filed?
Joe Taco said that in Italy people can be held as suspects when there is very little evidence against them. Is this true?
Can suspects be interviewed by the police without a lawyer being present?
And so on....

Yes will think about that, because reading how evening so-called journalists write, "They were not given bail" and that tells me they haven't a clue what they are saying because they are not even aware that the law doesn't work that way outside their own homeland there is no bail as such in Italy. It means they are not specialists in law.

Anyway a break now because it took about 3 hours to post.

ciao tutti

Justice for Meredith and peace for her family.

skeptical bystander wrote:Thanks, TLC.
I'll look at this as soon as possible.
Any ideas you have about how to present it succinctly would be most appreciated.
I was thinking about doing it in the FAQ format. We could come up with a bunch of questions that people not familiar with the system might ask and provide short answers, plus links to helpful online sources.
What do you think about that?
What does anyone think about that?

I think the FAQ is a very good idea Skep...rather then lots of posts containing various statutes or one post containing them all just thrown in together.

TLC - Thanks for the links

How about if we just start by compiling the questions?
Anyone can just submit them and I'll keep a master list.
How does that sound?

Codice Penale (2006)
"61. Circonstanze aggravanti comuni.
1. l'avere agitto per motivi abbieti o futilli.
2. l'ave commesso il reato per eseguirne od occultarne un'altro ovvero per conseguire o assicurare a se' o ad altri il prodotto o il profitto o il prezzo ovvero la impunita' di un altro reato.
4. l'avere adoperato servizie o, l'aver reagito con crudelta' verso le persone.
5. l'avere profittato di circostanze di tempo, di luogo o di persona tali di ostaculare la pubblica o privata difesa.
8. l'avere aggravato o tentato di aggravare le consequenze del delitto commesso.
11. l'avere commesso il fatto con abuso di autorita' o di relazione domestiche, ovvero con abusi di relazione di ufficio, di prestazione d'opera, di coabitazione, o di ospilita'."

Here are some other 'aggravante' from the Italian Penal Code. My legal english speak is not so good, sorry.
Clearly, we won't know for a while which may be relevant.

Codice Penale (2006)
"61. Circonstanze aggravanti comuni.
1. l'avere agitto per motivi abbieti o futilli.
2. l'ave commesso il reato per eseguirne od occultarne un'altro ovvero per conseguire o assicurare a se' o ad altri il prodotto o il profitto o il prezzo ovvero la impunita' di un altro reato.
4. l'avere adoperato servizie o, l'aver reagito con crudelta' verso le persone.
5. l'avere profittato di circostanze di tempo, di luogo o di persona tali di ostaculare la pubblica o privata difesa.
8. l'avere aggravato o tentato di aggravare le consequenze del delitto commesso.
11. l'avere commesso il fatto con abuso di autorita' o di relazione domestiche, ovvero con abusi di relazione di ufficio, di prestazione d'opera, di coabitazione, o di ospilita'."

Here are some other 'aggravante' from the Italian Penal Code. My legal english speak is not so good, sorry.
Clearly, we won't know for a while which may be relevant.

Thanks Damian.
I'll do a Q&D translation of this and check it with you.

Hi Damian,

Thanks for the bits about law.

I think the thing to do now is not to confuse what is relevant.

The bits I extracted are relevant to this set of crimes.

Those who are going to translate will not be able to translate the entire codice penale in a very short time.

If the extra bits you added here with regard to aggravated circumstances play a part or may play a part then it is good. Maybe Nicki, Traduco or Sparrow can translate what is what including the aggravated codes you added to see what they cover.

I will add another post after this with an overview of how the two main categories of crime in Italy are categorized, then the main headers of the different types/categories of crime. With that it is easier to see where one needs to be in relation to the sexual violence crimes, murder, etc, involved in this case.

Damian,
That's okay.

OK TLC. I've got a suspicion this thread here may get a bit tricky soon. (wink)

damian wrote:OK TLC. I've got a suspicion this thread here may get a bit tricky soon. (wink)

I hope not though, if we keep it as concise and ordered as possible, uncluttered and your help is definitely needed, because you can seek, like you did, things in Italian and translate it to yourself in your head and thatway look for any relevant parts, as regards the codes or other procedures in Italy, others can translate because your English is definitely good enough (is very good I thought) to see whether a bit is useful or not.

Once the work is done then I don't reminding removing posts so as to unclutter the total.

Anyway, I've put the list of main titles found in the Penal Code.

There is the homicide
The sexual violence
The crimes against property which burglary falls under. If a person is alreaduy in someonés house then that is not the same as burglary.

Anyway, it is a few main headers that the chief crimes fall under, I think.

CRIME


1. Classification of crimes.

*Legal classification. All criminal offenses
(reati) are divided by the Penal Code (Codice
Penale) into two broad categories: delitti, which
are serious offenses and contravvenzioni, which
are less serious offenses.

The two categories (The crime categories are described in the second and third books of the Italian Penal Code entitled, Libro Secondo: Dei Delitti in Particolare and Libro Terzo: Delle Contravvenzioni in Particolare, respectively) are also used to help to classify special law statutes (drugs, prostitution, weapons, bankruptcy, pollution,
hunting, traffic, customs, tax evasion, Military Code in wartime and in peacetime).

The distinction between delitti and contravvenzioni crimes is based on the seriousness of the crime and on the severity of punishment.

Although they are both punishable by imprisonment and/or fine, the sentences for delitti are more severe than those for the contravvenzioni.

For delitti crimes, the penalty is 15 days to 24 years imprisonment, and as much as 30 years or life imprisonment in special cases.

For contravvenzioni crimes, the penalty is 5 days to 3 years imprisonment.

As a rule, sentences for contravvenzioni are served in different types of prison facilities than those used for delitti.

Fines vary considerably and can amount to 500,000 U. S. Dollars for serious drug offenses. (Penal Code, Art.22,23.25).

The Penal Code generally classifies each crime under a specific heading which follow in the next post hereunder.

a)
Crimes against the Nation (delitti contro la personalita` dello Stato), (for example, espionage, assassination of the President, armed bands, terrorism).

b)
Crimes against public authority (delitti contro la pubblica amministrazione), (for instance, corruption, bribery, embezzlement of public property by an officer).

c)
Crimes against judicial authority (delitti contro l'amministrazione della giustizia), (for example, Perjury, to suborn a witness).

d)
Crimes against religious feelings and against the feelings of pity towards the dead (delitti contro il sentimento religioso e contro la pieta`dei defunti), (profanation of a tomb, offenses against religion).

e)
Crimes against the public order/breach of the peace (delitti contro l'ordine pubblico), (for instance, criminal association, particularly of the mafioso type).

f)
Crimes against public safety (delitti contro
l'incolumita` pubblica), (poisoning food, water and drugs, arson, provoking a railway or air disaster).

g)
Crimes against public faithfulness (delitti contro la fede pubblica), (forgery and counterfeiting).

h)
Crimes against public economy, industry and commerce (delitti contro l'economia pubblica,
l'industria e il commercio), (commercial fraud).

i)
Crimes against public morality (delitti contro la moralita` pubblica e il buon costume), (rape, indecent exposure).

j)
Crimes against the family (delitti contro la famiglia), (bigamy, incest).

k)
Crimes against the person/violent crimes(delitti contro la persona), (murder, assault, non-ransom kidnapping, defamation).

l)
Crimes against property (Delitti contro il
patrimonio), (theft, money laundering, robbery,
extortion, ransom kidnapping).

(The Penal Code considers the violent crimes of robbery, extortion, and ransom kidnapping as property crimes because their main intent is to gain
property.)


____________________________________

It is inside this choice of headers that the subheaders are found and from there the charges will be drawn against those accused of murdering Meredith Kercher.

wow now gotr the two posts together but how to delete the two separated ones? the first posts which are now double. I'll find it.

Oh just found out I can't delete but the administrator can.

Skep maybe when you have time you could delete the first two posts on this page, because now it's double, I wanted to have them running consecutively.

Hi Michael

Glad to be of some use.

TLC,
Hope I deleted the right ones!

Hi Skep, yes that was right.

Ideas about what people want to know.

1/ Is bail possible in Italy?
2/ If a person is released waiting for trial what possibilities for that release are there if there is no bail system as it is done under the USA, UK and other systems where money and property (bonds) are given by the suspect?
3/ Which types of courts exist in Italy?
4/ Is there a jury?
5/ Who decides who is guilty?
6/ Which system of law is used n Italy?
7/ Doed parole exist
8/ Who is eligible for parole
9/ What is the maximum panalty possible in Italy
10/ is a suspect innocent until proved guilty?
11/ Is there legal aid
12/ Can a prisoner be exhanged?
11/ Can a prioner be transferred nearer to his/her home country?
12/ What are the conditions that have to be met in order to be eligible for transfer back to yor home country if you are in prison in a foreign land?
13/ Can a person be tried again for the same crime(s)?
14/ Who runs a criminal investigaion in Italy?
15/ What is tye maximum amount of time a person can be held before being charged?
16/ How long may a preliminary investigation take?
17/ How long can suspects be held in custody waiting for trial?
18/ How long can suspects be held in custody waiting for trial if the prosecutor asks the judge for an extension?
19/ What are prisoners' rights?
20/ Who is in charge of the justice system in Italy?
21/ Is there capital punishment in Italy?
22/ Are defence counsel and prosecution equal in court before the judges?
23/ What procedure is there for appeal
24/ Which court(s) decide on appeal?
25/ Which supreme courts rule on matters of procedure (has law been carried out correctly?)
26/ What is the name of the system of law used to categorize types of crime?
27/ How old do you have to be to be triewd as an adult?
28/ What are your medical rights?
29/ What are your rights to education whilst in prison?
30/ What are your rights to visits if incarcerated?
31/ Who can visit you?
32/ How do criminal records work?
33/ What crimes will leave a convicted person with a criminal record?
34/ How am I protected in prison?
35/ What type of qualifications do law practitioners have to have?
36/ What qualifications do judges in Italy need to have?
37/ What qualifications do prosecutors in Italy need to have?
38/ Do laws change from one town to another?
39/ What different types of police departments exist in Italy
40/ Who investigates forensic evidence?
41/ Does contempt of court exist in Italy?
42/ What haoppens if it is proved that a suspect has tampered with evidence?
43/ What happens if it is proved that a suspect has perverted the course of justice?
44/ What happens if it is proved that a suspect has given false statements?
45/ How does libel and slander work in Italy and what can be done about it?


This is a start then Skep.

Here are some more questions that I would like to know the answers to in relation to this case for adding to the list.

46.What happens if it is proved that the Proseuction has tampered with the evidence?
47. What happens if it is proved that that the Prosecution has perverted the course of justice ?
48. What happens if it is proved that the Prosecution coerced a false confession from a suspect ?
49. What happens if human rights are proved to have been violated during questioning ?
50. What happens if a Judge makes an incorrect assumption based on the Prosecutors report?
51. What if the theory, motive and much of the evidence against suspects used to incarcerate them turns out to be incorrect?
52. Are suspects legally charged of anything during this preliminery detention stage ? (There is a lot of confusion about this)
53. If not, at what stage are charges laid ?
55. Does the defence have any right of an informed reply at these preliminary hearings ?
56. If a Public Prosecutor is found guilty of charges brought against them from a previous case, would they then be removed from their current case ?
57. Does the defence just have to wait patiently for the Prosecution to announce what they are going to do ? Press charges, drop charges etc?
58. Is there compensation if someone has been wrongly imprisoned ?
59. Can the Prosecution be subsequently sued if gross miscarriage of justice is proven to have occured ?
60. What happens if it is proven that the Prosecution leaked information to the media ?
61. What happens if it is proved that the Prosectuion leaked false information to the media ?



These are a few questions I would really appreciate the answers to, Many thanks.

TLC:
Thanks for compiling these questions. Anyone who has anything to add or comments to make, please do so. I'll see if I can't subdivide them into categories....or if anyone else wants to, go ahead.

Oceania,
Many of your questions seem to be about this case, these suspects and this prosecutor. That was not really the spirit of the undertaking. The reason for setting up this specific topic area is to provide factual, non-polemical general information about criminal process in Italy.
If these questions and the person of Mignini really intrigue you, how about doing some research based on your issues and getting back to us with any factual data you uncover that might be of interest. There are one or two questions in your list that could be added to John's list.
I think the project will be more manageable if we avoid questions of the "what if" variety.
Again, if these issues intrigue you, go for it.

Naturally, this is just my opinion on how to proceed.
Other people's thoughts and ideas would be welcome.

My understanding was this part of the message board was to discuss the legal context and aspects of the Meredith Kercher case and not a general dicussion board solely about the law in Italy. Many people have questions they would like answered in relation to this case. The above is my list.
I feel if it is ok to have a question like 'What if the suspect has been found to have tampered with evidence', then surely "What if the prosecution has been found to have tampered with evidence' is equally as valid a question. I would like to know the answer to that question.

To my mind you cannot disconnect the public prosecutor and what they are doing on this case from any discussion about this crime, no matter how hard some people try to. Some people have observed strong indicators that things might not be as they should be in terms of the investigation. This does not mean there is some conspiracy theory going on, just intelligent observations. I do not understand the campaign to stamp out any disucssion about the man that is in charge of this investigation. It comes across as those who believe all the suspects are guilty agree wholeheartedly with the prosecution and will not enter any discussion otherwise. Others do not see it that way, surely it should be able to be discussed in relation to this case without setting off a tirade of 'conspiracist nut' etc.

The stated aim is to compile a document with general information about the legal system. If you want to pursue your specific aims and contribute them here, you are more than welcome to do that.
But right now, the goal is not to debate the merits of the prosecutor or the merits of the Italian system, or to answer your specific concerns.
Again, feel free to do any research you want to do on your specific concerns and then offer them to the board for inclusion in the final reference document. That would be great.

Actually, it would be great if you could do some research on the checks and balances on prosecutorial power in a case law system (like your own or the US or the UK) as well as a code based system. If you want to extend that out to include other issues you raise, that would be great as well.
Then you can submit that information and we can incorporate it. Please provide sources.
Thanks!

Hi SB, Unfortunately I don't have the time at present to do the research as you suggest, but maybe the suggestion could be left also to other posters who may have the time. I'm a bit confused I thought it was an area to discuss and learn more about the legal system, in particular, as it may relate to
this case. A place where people who were looking for legal answers could post their queries. I would be most appreciative of the time and effort of any poster that may be able to supply the answers to my questions.

I like being able to compartmentalise the various discussions like this. Do you think it is a good idea to encourage posts like the ones pertaining to Articles 576 and 577 be posted here rather than at
the general discussion at Halo ?

Also wondering if someone who posts here can then post a link back here onto the Halo thread, so people can link back to and read that post if they are interested ?

Hi O88,
That sounds a bit cumbersome and redundant. People will have to be responsible for checking both boards or not, as they see fit.
The idea at present for this particular topic is to put together a simple reference document.
Although anyone can contribute, I don't see this as a place to drop off reseach assignments for others to do. Most of us have day jobs!
The FAQ for legal questions will start as something short and sweet and hopefully grow over time.
If anyone reading here is interested in pursuing your questions, I'm sure he or she will come forward.

"in that case the prosecutor would never agree to the speeded up process, where the defendant saves the state money and a lot of trouble by simply agreeing with what the prosecutor has made of it in the preliminary investigation, the prosecutor would not agree to letting the defendant have the 1/3 off because the crimes are too severe and the prosecutor would want the accused to get the full and what is in the prosecutor's eyes, deserved punishment. " TLC

TLC. Are you using CPP from before 1999 as a source? If not, look out for the bits in brackets. CPP (2006) 439 Richiesta di giudizio abbreviato. At the end of this article, which is indeed as you describe it, there is (1) Art abrogato dalla 1. 16-12-1999, n.479(art 28) This means this article of Italian law has been superceded by another (repealed).

Hi Damian,

I'm looking for more info, do you have accurate up-to-date information on the laws relevant to this case?

If you do, would be much appreciated, to have latest with the possible changes made.

I know in 1991 it was ruled that the prosecutor wasn't able, under the constitution, to refuse a suspect's request for the abbreviato option, not unless the prosecutor had written down the reasons, in a very sound way, if later a trial went ahead and the judge felt that the prosecutor had no right to refuse the suspect the request of the shortened process, then the judge is legally entitled to let the suspect get a third off at sentencing time after all.

Please, if you have access to up-to-date rulings, can you provide what you have here?

Obviously a prosecutor is well within his/her rights to refuse a suspect the abbreviated option if he or she sees and feels that there is not enough gathered in the preliminaries to get to a so und outcome and so in that case proceedings will move forwarsd where more evidence obtained is admissable after the preliminary dossier is compiled, the judge might be the person, calling for certain evidence to be provided.

The judge might ask for a certain avenue to be sought out, examined, because in Italy those the system was changed drastically, the judges do still hold certain powers like that, like the one that sees the head judge of a trial calling for a certain element be examined.

Previously victims were riduiculed, their credibility was brought into question continuously and they were not able to defend themselves, they were not cross-examined but accusations were flung out continually, based on rumour and speculation. Now after the changes brought into force, such lines, may add to the case against the accused because victims are allowed to have lawyers and people blindly throwing out accusations in the court room can be cross-examined.

Cultural notions and traditional ideas still shape much of present day life in Italy, where men and women are still not on equal terms.

I'm still looking for facts on law but have to work.
Ciao

TLC, here you go. http://tinyurl.com/6jmncu
It's all here, somewhere or other. I guess there are hundreds of laws relevant to this case. If you tell me which specific things you are after, I'll see if I can navigate you there.

Thank you Damian, I will study up on it, later on, as need to get some work done here.

I'll get a list together of what I think is relevant and necessary to know in order to be able to offer any sound view on any angle as regards its validity according to law, as that is where it matters, without it there is no court and no trials.

Thanks

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[font=Comic Sans MS]Just winding things down on the board a bit now as we move over to the new forum. I am therefore locking this thread.

Michael (Moderator)[/font]