Lucia La Rosa, Legislative Decree number 274 of 28 August 2000. The new criminal competence of the judge of peace
1. THE MAIN FEATURES.
The main features of the above mentioned Decree, which will take effect from 4 April 2001, are the following:
a. Awarding to the Judge of peace the new competence of judging some crimes
b. Simplification, for these crimes, of the preliminary investigations, committed, as a rule, to the police, without the formal supervision of public prosecutors
c. Simplification of the trial
d. Exclusion of the confinement in prison and introduction of the penalties “ work in the public interest” and the “stay at home for the week end”.
e. Strengthening of the settlement before the judge for unsubstantial crimes.
2. JUDGE OF PEACE’S NEW COMPETENCES
The judge of peace’s competence was extended, in particular, to the following crimes:
- battery
- bodily harm
- Malicious injuries to the person, negligently causing injuries, for which committal to trial supposes a private prosecution (no if the work safety laws are violated and/or the harm is continued for more then twenty days).
- failure to assist
- defamation , assault
- robbery in case of private prosecution needed
- forcible entry, trespass
- damage, vandalism
- killing or damaging other people’s animals
- supply of alcohol for minors or incompetent or already drunken persons
- offenses against the public decency
- sale for profit of one’s blood
The criterion applied awarded the judge of peace all of the crimes that both do not need a special interpretation or complicated investigations and may be settled before the court, by compensation.
3. THE NEW REGULATION OF PRELIMINARY INVESTIGATIONS
a. This phase will become “eventual”: the fulfillment of the preliminary investigations will be needed only for the crimes liable without a private prosecution, while for the crimes actionable only by a private prosecution, the victim may directly request to the judge of peace a decree of committal to trial. On the basis of the private prosecution the Judge will fix a hearing and will notify a decree for committal to trial to the accused and to the public prosecutor. All this without a preliminary phase of investigations led by the Prosecutor or by the police.
b. The figure and the rule of the judge of the preliminary investigation
(G.I.P.) will disappear. The leading rule will be performed, not by the
public prosecutor, but by the police, that will be charged with preliminary
investigation of alleged offences, including the collection and holding of evidence,
without any limit, both if the information on crime is disclosed to the police
and to the prosecutor. The direction by the public prosecutor will be only
eventual, depending on his or her decision to lead the police’ investigations
and/or to perform the investigations personally. This will effect also the
goal of the investigation. In fact. for his or her institutional duties, the
public prosecutor, as judge, must aim to establish the truth, which implies
the duty of verifying every event and fact, also the favorable ones for the
suspect. On the contrary, the police don’t have this aim nor this duty.
g. The ‘red handed’ arrest, the detention of the suspect, the pretrial confinement, may no longer be applied for the crimes within the competence of the judge of peace, since these don’t have any power to limit personal freedom. For the same reason, it may be deduced the exclusion, for incompatibility, of the summary speedy trial.
….e. The preliminary investigations can be forwarded for no more then 4 months from the recording of the crime’s information into the crimes’ general register. The term is calculated in the same way both when the information is received by the prosecutor and by the police. If the information will be transmitted directly to the prosecutor, he will immediately record it in the general register. On the other hand, if the information will be communicated to the police, the latter, as we already said, will not have to inform immediately the prosecutor, but may autonomously start the investigations. In this case, the only duty is to transmit to the prosecutor a report on the investigations’ conclusion within four months. When and only when the prosecutor receive this report he may record the crime in the general register. It means that, every time the information is received by the police, the investigations’ term may be not four, but eight months: four months to transmit the record to the prosecutor plus four months from the prosecutor’s registration of the crime.
f. When, and only when, the investigations are particularly complicated, the prosecutor may provide an extension of the investigations’ time, without requiring permission from the judge but with the only duty to inform him. Therefore, in case of extension, the investigations might last, theoretically, for almost six months, which has been the normal time, before the reform. Since, as it has been said, in reality, the investigations’ terms will be 8 months, the investigations, after being extended, may last until 10 months. However, ulterior extensions of investigations may not be authorized.
….c. As for the phase of the investigations’ conclusions, the possible end is still or the exercise of the public prosecution or the request for dismissal. In the case of criminal prosecution, the prosecutor will allow the police to summon to trial. It would be in this phase that the prosecutor could control the police’s investigations.
c. Regarding the investigations’ conclusion, the legislative decree neither mentions the article 415 bis of the criminal proceeding code (which regulates the prosecutor’s duty of notifying the conclusion to the accused) nor provides a similar regulation. Therefore, it seems that it should be not correct to charge the prosecutor or the police with the duty to communicate the investigations’ conclusion to the accused. It means that the person will know about what the accusation is against him or her only in the moment in which he or she will be committed to trial.
d In conformity with article 3, the quality of person charged will be assigned with the committal to trial, made directly by the police, or with the Judge’s decree of committal to trial, pronounced on the basis of the private prosecution. The imprecision of this disposition can suggest that, in this new proceeding, the criminal prosecution will be no more an exclusive power and duty of the prosecutor. Since interpretation of a rule must examine and consider the context of the whole legal system, to which that rule belongs, the conclusion could be that an act of the prosecutor would still be necessary to become “accused”. In fact, even if the police commit to trial, it will happen on the basis of the prosecutor’s accusal. In the same way, in case of private prosecution, the Judge’s summoning decree shall be transmitted to the prosecutor, who may confirm or change the accusal of the private prosecution.
4. THE DISMISSAL
a. The new law prescribes that the prosecutor will have to require the dismissal not before the judge of the peace competent for the trial, but to the judge of peace having territorial jurisdiction. In this way it the problem has been resolved to prevent an overlap between the investigative functions and the juridical functions, which could have occurred as a consequence for the elimination of the judge of the preliminary investigations.
b. Regarding the cases in which the dismissal can be required, the new law considers the following possibilities: baseless information on the alleged crime, lack of a procedural condition, lack of criminal liability for the committed action, extinguishing of the offense, and unknown authors of the crime. The real innovations are: the prevision of the possibility of dismissal for special insubstantiality of the offense and the extinguishment of offense due to the compensation of damages.
c. As for the proceeding, the only innovation is the elimination of the hearing in case of the victim’s opposition to the dismissal’s request. In conformity with the aim to simplify the proceeding, the new law only prescribes that a copy of the dismissal’s request would be served to the victim, if she previously had asked to be informed. Within the following 10 days the victim might oppose to the dismissal, but only if the victim indicated the reasons and the proofs. If the judge rejected the dismissal’s request, the judge would send back the file to the prosecutor’s office. In addiction, the judge would indicate the needed new investigations and their final terms or would prescribe that the prosecutor would forward the prosecution within 10 days.
5. THE TRIAL
5.1 THE INTRODUCTORY ACTS OF THE TRIAL.
a. Police’ summons or private criminal action will be the introductory acts of the trial.
Article 20 regulates police’ summons. It is a combined act, since its structure is supported by the accusal, drawn down by the prosecutor and by the summons to trial, which is written and subscribed by the police. The summons is served to the accused, his or her defender and to the victim at least 30 days before the trial. After the serving, it is deposited, along with the investigation’s documents and acts, in the prosecutor’s office.
b. The provision of a private criminal action is the deepest innovation introduced by the new law. Persons allowed to forward a criminal action are the victims of those crimes, which might be punished only if there were a criminal private action. So, the victims could bring the complaint before the police, which would lead the investigations, or bring the action directly before the judge of peace, summoning the accused. In this last case, the private criminal action closed with the request to the judge of fixing the trial against the summoned accused. The only adjustment would be of the necessary notification of the action to the public prosecutor that, differently, could not have any information about the private prosecution.
c. The private criminal action may be forward within 3 months from the alleged offense. If it were forward later, it would be null and void The aim of making the process speedier is reflected by the regulation of the procedural dates: the victim may deposit his/her criminal action in the prosecutor’s office, that, in that moment, could be informed about the criminal action. Within and not later then ten days from the day of deposit the prosecutor may express his or her requests on the case before the judge of the peace. (For example, he or she may ask to differently qualify the crime or he or she may object that the offense may be not considered a crime). Within and not later then twenty days from the deposit of the private criminal action, the judge of peace must promulgate the decree of committal to trial, which will be served to the accused and to the public prosecutor within and not later then twenty days before the trial hearing. In the decree it will be fixed the trial hearing, which must be set within and not later then 90 days from the deposit of the criminal action. The decree will include the formal accusal, and the expressed and explicit request for the accused to report before the court. Every term is only regulative and even if they terms were not respected, the proceeding would be valid.
d. The victims, who did not forward a private criminal action but who have been served with the decree, may join the criminal private action before the trial setting. If the victim who has forwarded the criminal private action, as well as the victims who were served with the decree, did not appear at the trial hearing, the action is considered withdrawn or may not be forwarded more.
e. It could be easily foreseen that the victim will choose the private criminal action, instead of the complaint before the police, when his/her goal will be to obtain a shift compensation of damages. Therefore, it can be deduced that generally the private criminal action will be forwarded together with the claim for damages. It is reflected in the provision that claims for damage in the criminal proceeding must be included in the private criminal action. In other words, if one wanted to claim for the damages caused by the crime, these damages would be claimed by the private criminal action, without the possibility of a claim for damages in the criminal proceeding in a successive moment.
5.2. THE TRIAL.
a. The first hearing before the judge of peace is called “hearing of appearance
before the Court”or, as we will call it, “appearance’s hearing”.
This hearing is provided for promoting the conciliation between the accused
and the victim and preventing the trial. At least seven days before this hearing,
the police’summons or the criminal private action, their services of
process, the collected proofs and the lists of witnesses must be deposited in
the office of the judge of peace. In this way, he or she may know about the
alleged offense and its proofs. In the hearing the judge of peace should act
as a mediator and should reconcile victim and accused. In this way, on one
hand, the private criminal action would be withdrawn and, on the other hand,
the possible damages would be compensated by the accused. The judge’s conciliatory
rule would not be based on the investigations acts and documents and would not
imply a harbinger of his or her judgement. Therefore, during the conciliatory
phase the speech of the accused and/or of the victim and their acts may not
be considered and used as proofs. For helping the reconciliation, the appearance’s
hearing may be postponed until and not later than 2 months. During this period
the accused and the victim could examine the advantages of the mediation and
verify the real possibility of the damages’ compensation. If accused and victim
came to a conciliation, the victim would withdraw the action under possible
condition of a compensation and the agreement would be drawn up as a formal
document. If the conciliation were not settled, the judge would declare the
opening of trial.
b. After the trial has been declared opened, the judge has to admit the incriminating and the exculpatory evidences. In this phase the judge discretion is larger than in the past. In particular, the judge not only has to not admit the illegally secured evidence but he also could not admit the insignificant and not essential evidences. The possibility to settle the trial with a reconciliation let foretell that the witnesses will be not directly taken to the courtroom before the judge’s admission of evidences. Therefore, after that the judge has admitted the list of witnesses, the victim and the accused could summon them for a following hearing. If, after being admitted, the witnesses were not summoned, they could not be used as evidence again. In conformity with the general principles of the criminal proceeding, also the trial before the judge of peace will be public.
6. THE PENALTIES
a. The aim pursued by the law is the punishment of the offenses, considering their authors responsible but not criminal. For gaining this goal, as it has been already said, the new law introduces the penalties of “ work in the public interest” and the “stay at home for the week end”. As for the latter one, it seems to be the more afflictive penalty that the judge of peace might pronounce. In fact, it replaces the confinement in prison, either if it was previously prescribed alone and along with a fine, but only if the confinement previously was, in the maximum, not less then six months. The penalty of “stay at home for the week end” has to be graduated according with the gravity of the crime. However, its minimum is six days and its maximum is forty-five days. The execution is, normally, spreaded in the weekends, but, if the accused required it, the judge might decide a continuative execution of the penalty. In addition, the judge could prescribed that the execution of the penalty would set in days different then Saturday and Sunday, even if there were not an request from the accused. However, the modalities of execution must consider the accused’s needs to study and/or to work. For the execution of this punishment, hospitals, poor people’s home, charitable institutions are equalized to one’s home.
….b. The penalty of “ work in the public interest” may be pronounced for the minor crimes within the jurisdiction of the judge of peace. In addition, it may sentenced in place of the stay at home for the weekend, if there were a request either of the accused and his defender. In the latter case, the defender must have a special power of attorney.
The judge of peace has to describe specifically the content of the work in the public interest, so that the accused could choose between the two options in a conscious way. The request to work in the public interest, instead of staying at home for the weekend must be forwarded just after that the judge has declared the judgement. Either in case of stay at home and in case of work in the public interest, the judge may also forbid the accuseds to enter in indicated places.
c. The explained penalties and their regulation must be respected even if the trial is attracted in the jurisdiction of a superior judge, due to a consolidation of actions. In the same way, even if there is a consolidation of actions, it will possible either a dismissal for special insubstantiality of the offense and an extinguishment of the crime as a consequence of the damages’ compensation.
7. TEMPORARY REGULATIONS.
a. The new regulations are coming into force by 4 April 2001 (art.64/1) [now, by 2 January 2001].
Regarding the temporary phase, the law distinguishes between the crimes committed before 6 October 2000, the crimes committed after 6 October 2000 and recorded in the crimes’ register before 5 March 2001 and the crimes committed after 6 October 2000 and recorded in the crimes’ register after 5 march 2001.
b. As for the crimes committed before 6 October 2000 and for the crimes committed after 6 October 2000 but recorded before 5 March 2001, the proceeding will be regulated by the old dispositions but for the penalties, regarding which the new law must be respected. As for the crimes committed after 6 October 2000 and recorded after 5 March 2001, all the new regulations must be respected, so that the trials will be set before the judge of the peace.
- avv. Lucia La Rosa - Napoli - marzo 2001 -
(riproduzione riservata)