The Reforms Introduced in the Inquisitorial Criminal Justice System in Italy - Coursework Example

Name : xxxxxxxxxxx Institution : xxxxxxxxxxx Course : xxxxxxxxxxx Title : Issues In comparative Justice Tutor : xxxxxxxxxxx @2010 Introduction The criminal justice system in Italy is based on the modified Roman law which was formulated by the Napoleonic code in 1810. The principles of the code included taking the accused to trial before punishment, proportionality between punishment and crime, the eliminating secret accusations and clarity of the law. Although the original code served its purpose within the criminal justice system in Italy, there was need for reforms in the justice system. Italy has over the years experienced an increase in emergency crime that was sphere headed by worsening of organized crime and the mafia phenomenon (Nimmer 1978). This particular presentation seeks to evaluate the reforms introduced in the inquisitorial criminal justice system in Italy and how it has affected the fight against Mafia activities. Criminal justice reforms In Italy The Italian parliament in 1988 made new enactment of a criminal justice procedure code. The initial code also referred to as the codice Rocco was formulated by the Justice Minister who played a significant role in its existence. The initial code was based on the inquisitorial model or non-adversarial. Within the Inquisitional phase, evidence was collected to determine if a crime was committed, if the evidence proved so, the next question would be by whom. In addition the judge took full control of the pretrial examination by taking up the role of both investigator and judge. The defense had no legal rights to take part or even be notified concerning the proceedings of the investigation. Without the existence of the defense or the defendant council during the examination, interrogators were bound to put extensive pressure on any witness who appeared before the panel. After the examination a public trail was then conducted this acted as base for providing all the evidence for convicting the defendant. The principles of immediacy and orality were basically done away with and the materials and records collected during the investigation phase were used as the main reference of the sentence and verdict. The trial simply confirmed what had transpired during the examination phase (Nimmer 1978). Between 1965 and 1972 a series of decisions were made by the Italian constitutional Courts, the decisions increased the defense participation in the pretrial phase. However despite of the guaranteed greater protection provided for the defendant during the pretrial phase, there were no specific measures to tamper with the earlier systems exclusive focus. The Italian parliament considered making reforms on the criminal procedures in 1965 however it did not assign formal responsibility of drafting a new code until the year 1978. Later parliament gave a new delegation of authority and in 1989 a new criminal code was enacted. The main aim of the code was to make an attempt of moving towards a criminal procedure that is an adversarial model, a model that follows the distinctive perspective of the liberal ideology, this is because Italy was beginning to progressively to adapt to the liberal democratic states system (Federico & Guarnieri 1988). Reforms in the criminal justice system in Italy were virtually considered necessary for the purpose of building a firm foundation of the democratic system. Secondly reforms were also essential in order to transform the lengthy procedures and reduce the number the number of cases that were pending in the Italian courts. Furthermore the European Human Rights courts condemned the Italian court procedures due to the fact that they simply contributed to disastrous consequences that violated the rights of citizens and eliminated the legitimate expectations of the citizens towards the justice system. Thus the decision to shift from the inquisitorial model or non-adversarial was mainly based on two primary issues The notion that the adversarial procedure or model would fit best within the democratic system. The need to attain or regain some efficiency and effectiveness in the criminal justice administration The two main objectives highlighted above were reached by the termination of about eighty to eighty five cases that were pending, through the use of the Italian plea bargaining and other special procedures that were developed by the code which included; the penal decree, immediate trial, summary trial or abbreviated trial and direct trial. The 1998 newly adopted criminal justice code known as the accusatorial model differed greatly with the original inquisitorial mode (Waltman & Holland 1992). Differences between the Inquisitorial and Accusatorial model Within the inquisitorial model the judge used to play an active role in the investigation however within the accusatorial model the judge’s role was passive. Secondly In the inquisitorial modal collection of evidence was done before trial, within he the newly formed code evidence was to be collected during the trial. Other significant differences included the process in the inquisitorial proceedings was written, the accusatorial system carried out an oral process. In addition, the Accusatorial system involved the integration of the jury while the within the inquisitorial system trial by the jury was exceptional. The sentence and judgment in the inquisitorial process was written, the accusatorial system on the other hand had oral sentences and verdicts. The Inquisitorial model involved appeal on the law and facts while within the accusatorial model appeal was based on the law (Nimmer 1978). Mafia Activities in Italy Mafia based criminal activities are organized crimes that are committed by groups. The associations of criminal groups share one common code of conduct and organizational structure. The roots of Italian Mafia activities can be traced back to the 19th centaury from the Sicily region an Island located in the Mediterranean Sea between the Italian mainland and North Africa. In 1861, Sicily was made one of the provinces of the recently unified Italy. The residents of this particular Island formed groups that would assist in protecting the region against hostile forces. These groups were later on referred to as families or clans; they devised their own retribution and justice system and undertaking their operations secretly. By the mid 19th Centaury, small armies that were organized privately emerged referred to as ‘’ mafie’’. The army took advantage of the rampant and frequent chaotic and violent conditions that were ongoing in Sicily by extracting money from owners of land. This particular history highlights the emergence of the Sicilian Mafia in Italy as a collection of criminal families and clans (Diego 2001). The Italian Mafia is possibly the greatly known for the traditional criminal activities such as organizing protection rackets and extortion. However today Mafia activities in Italy have become much more sophisticated because the groups have learnt to be more diversified and sophisticated in their portfolio of criminal activities. They indulge in varies criminal activities such as smuggling, kidnapping, drug dealing, trafficking people, bribery of politicians and judges and prostitution. Furthermore in recent years reports indicate that the Mafia leaders of the younger generation are trying to formulate strategies of diversifying their criminal activities into white collar crime with an objective of making more money. Often the profits obtained from the criminal activities undertaken by the Italian Mafia are usually reinvested in business enterprises that are legitimate. The Italian Mafia is a formidable economic force that basically accounts for 10% of the GPD. In addition the annual turn over of the criminal group is estimated to be approximately 10 billion Euros (Hess 1998). NGO Documentary Law Review on Special procedural measure and protection of Human Right John Vervaele (2009) highlights that; Italy has formulated a double –track system whereby the special criminal legislation and the ordinary criminal law against Mafia activities. This particular country has formulated a set of elaborate criminal instruments through the transformed criminal justice code that was initiated in 1988. Special surveillance on Mafia activities by the police has been increased whereby the police take party in the investigation procedures through conducting house arrests and limiting free movement of the group. The procedures are not merely grounded on reasonable suspicions but rather they are linked to the continued listing of Mafia organizations which has been undertaken since 1982. The preventive measures have additionally been expanded through the inclusion of asset confiscation and seizure. Furthermore financial investigations were also introduced, according to the administrative agencies and the police the criminal justice code gives them mandate to undertake communication surveillance and preventive wiretapping Whereby the urgencies can ‘peak and sneak’ and conclude deals with convicted individuals in order to encourage them to coordinate with the justice machinery. John Vervaele (2009) highlights that there has been a stronger and greater cooperation between the intelligent services the police and the criminal justice courts in dealing with crime linked to Mafia. Preventative measures that are Anti – Mafia were extended to activities of terrorism in the years 2001 and 2005. This particular preventative measures had the objective of general information gathering in order to put a stop to serious crimes. For instance the police were given mandate to carry out search of private homes even without a search warrant. On the other hand the Italian secrete services has the mandate from the authority of the Court of Appeal to intercept communication by passing the special anti- terrorist or mafia unit that followed judicial warrant procedure. Clearly Italy can be described to have powerful proactive measures however the information obtained from investigations is attained during investigations is used in the trail and the pre-trial procedures. John Vervaele (2009) attributes this element to the reforms that have been undertaken in from the Inquisitorial to Accusatorial model which is basically much pro- human rights defense. How the Reforms in the Italian Criminal Justice system have affected the fight against Mafia The1988 criminal justice code has passed through numerous changes specifically during the 1990s, following interventions of the legislator and the constitutional court more emphasis has been laid on the aspect of statements presented during the pre-trial phase in order to effectively tackle emergency crime situations that basically originate from the worsening Mafia trend and the general activities of organized crime. In 1992 Article 195 of the criminal code was declared by the constitutional court through stating that the judicial police were prohibited from testifying about the declarations they obtained from the witnesses. Later on in 1997 article 513 was amended by barring the insertion of the statement given by the co-defendant in the court hearing file during public prosecution. The constitutional court did not withdraw its stand in despite of numerous oppositions (Salvatore 1995). Various legal scholars have highlighted that the changes made to the procedures of criminal law by the constitutional court deprived the court hearing their central function, which was to transform the earlier used inquisitorial system. The amendments made were basically a contradiction of the newly integrated accusatorial model or system. The outcome is that there is a complete upheaval of the formulated code. The impact of these particular amendments on the fight against organized crime and Mafia trends in Italy is that the conviction of criminals who are part of the Mafia groups may not be quite effective as intended, this is because for instance if Article 195 of the criminal code does not allow the judicial police to testifying about the declarations they obtained from the witnesses, the implication is that a conclisive or complete evidence can not be provided as a result the verdict which may actually not be proportionate to the crime commited. This means that if criminals involved in the Mafia are given lesser terms to serve in jail then curbing or eliminating the Mafia groups in Italy continues to be difficult, in despite of the reforems in the criminal justice system (Federico & Guarnieri 1988). Significant contributions of the reforms Establishment of Specialized Anti-Mafia Units Specialized units that aim at fighting against organized crime through the judicial and police system engage in mutual assistance to act efficient tools in the fight against Mafia operations. Since Mafia criminal activities have been expanded and also have become more sophisticated in their operations, the participation of a single urgency in the investigation and prosecution process may actually not be sufficient, therefore the integration of various law enforcement systems is very vital. For instance a task force that is composed of prosecutors, police investigators and financial intelligence unit provides the opportunity to carry out a comprehensive investigation and also not deplete the resources of one particular organization. The use of team work in the investigative process facilitates or enhances the gathering of complex evidence which may to some extent not been attained by a single investigation body. This therefore highlights that the earlier criminal justice code in Italy; the inquisitorial which gave the judge mandate to undertook both the investigative role and the verdict provision would have not been very effective in dealing with the increased Mafia criminal operation in contemporary Italian society( Amodio & Selvaggi 1998). As highlighted by the information stated above the establishment of specialization in every segment of the criminal justice system in Italy, which basically operates under the team based management of criminal cases, is evidently a successful tool to dealing and curbing Mafia activities. In addition the formulation of federal law and judicial enforcement has been very essential in attaining improvements in the prosecution and investigations of cases concerning organized crimes. These particular cases have indicated that there is need for developing a national coordination strategy that will provide consistent and centralized database on criminal groups in order to enhance effective law enforcement in the country (The Italian Code of Criminal Procedure 1998). Transformation of criminal proceedings and pre-trial setting The changes in the criminal justice system in Italy have also resulted to the transformation of criminal proceedings which have impacted on the fight against mafia. The general principles that are used of criminal procedures were transformed within the new model. The Accusatorial model entails the application of the principles of fair justice, the principle of legality and the use of the legal source which is the constitution. In general what can be stated is that the general principles applied in criminal proceedings favor the accusatorial principles as equality of arms, fair trial and an impartial and independent trial (Miller 2005). The impact of the undertaking criminal proceeding based on the new reforms of the accusatorial model has impacted the fight against mafia whereby to some extent the Mafia groups in Italy have become very powerful in that they make attempts of bribing the judges and the investigative bodies and the trial procedures no longer become fair .In addition politicians have also been bribed to try and introduce parallel reforms that aim at reducing the scope of the use of principle of the accusatorial model. On the other hand integration of the jury in the trial proceeding has been an effective tool in fighting mafia activities because the competency of various individuals can be used in making a decisive verdict concerning a particular criminal offense. In many case the use of the jury assists in elimination of biasness or even prejudice which may be practiced by one single verdict offered by the judge. The main effective is that if the evidence gathered is conclusive enough to convict a particular criminal involved in Mafia activities, then the prescribed sentences would be effective in enhancing a reduction of the number of individual involved in such groups. The classification of Crimes The reforms on the criminal justice code also transformed the classification of crimes. Under the penal code every criminal offense was divided into two categories, serious offence (delitti) and (contravvenzioni) which were categorized as less serious offences. The two categories of classification are useful in the classification of special law categories of crime. The difference between contravvenzioni and delitti is based on how serious the crime is which also influences the severity of the punishment to be given, by the verdict. In despite of the fact that there are all the crime categories are punishable through the use of fines and imprisonment , the delitti criminal offences have much more penalties which include a period of 15-24 years in prison and more than 30 yeas of life imprisonment (Miller 2005). Secondly categorizing of crime is also based on crimes against the nation for instance terrorism, espionage, armed bands and assassination. Another category involved crimes against public authorities such as corruption, embezzlement and bribery. The other category involves crimes against the judicial authority which includes perjury, just to name but a few. The impact of the categorization of criminal activates in the fight against Mafia activities in Italy is that the punishment levels of various crimes are increased as a result individuals involved in criminal operations keep way from crime due to fear of heavy sentences (Roberto 2006). Conclusion Italy made significant changes on its criminal justice system by shifting from the inquisitorial system and adopting the accusatorial system in order to adapt to the aspect of being more democratic state, due to the fact that the accusatorial system mainly promotes democratic principles within the criminal justice code, what is evident from the analysis made above is that the changes introduced to the inquisitorial criminal justice system in Italy has affected the fight against Mafia both positively and negatively, this is because some of Articles amended have brought profound changes in the in reducing Mafia-types of association on the other hand some Article amendments have actually been increasing factors for the existence of Mafia activities in Italy .It is therefore vital that the changes adopted to transform the inquisitorial system should be well formulated and evaluated in order to weigh the effectiveness in curbing organized crimes in Italy . 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