Wednesday, November 26, 2008

“They Were Held For A Year Without Even Being Charged!!” How Italian Justice REALLY Works

Posted by Nicki

[Above: Cassazione, the Italian Supreme Court Of Appeals}

A misleading mantra

This frequently quoted claim above is maybe the most mindless and misinformed of all the mantras on the case.

Much of the US media and some of the UK media - sometimes enthusiastically, sometimes with reserve - has parroted the claim that Raffaele Sollecito and Amanda Knox were “held without charges” for nearly a year.

Perhaps bringing to mind the notion of two innocent bystanders to the crime being arbitrarily arrested? Locked up in cockroach-infested jails by abusive police? Led on by an evil prosecutor with endless powers up his sleeve, and nothing at all to slow him down? Lost and forgotten by any judges in the case?

Well, good luck with that one, if it’s designed to sway the process.

It irritates just about everybody here in Italy, the judiciary and the media included. And it is doing the defendants no good at all.

Negative stereotypes like these really should not be applied to a country that is one of the founding members of the EU, of NATO, and of the European Council, and of the G-7, G-8, OECD, and United Nations (the non-permanent member of the Security Council in 2007-2008).

So for media reporters and commentators, please let us get the facts straight. Once and for all?!

Origin of Italian jurisprudence

Italian jurisprudence developed from Roman Law. It was shaped in the course of history to become a modern and very fair system. Judicial powers are subjected to a very complex and extremely pervasive set of checks and balances, which really assure maximum protection of every citizen’s rights.

Comparing the US and UK common law system - a model founded on non-written laws and developed through judicial proceedings - with this system which arose from the Roman Law model - based on a written civil code - is really like comparing apples to oranges.

They were both conceived to protect individual’s rights at a maximum level, while seeking justice for the victims. But with entirely different processes.

One is not necessarily better or worse. But there are legal experts who think the Italian system is distinctly fairer - much more weighted toward the defendants. In the US and the UK the prosecutor usually has to make it through only one pre-trial hoop. In Italy the prosecutor has to make it through a whole row of pre-trial hoops.

Legal status of a witness and a suspect

Let’s see what happens in Italy to the legal status of a person who, while considered a “persona informata dei fatti” which means “a person who could yield useful information” in relation to a brutal murder, suddenly becomes a suspect in the eyes of the police.

If while interviewing the “person who could yield useful information” the suspicion arises that such person could have played an active role in the crime, their status then turns into that of a suspect. The police can then detain that suspect up to 48 hours.

Those 48 hours are the period within which a prosecutor - if he believes that the evidence of guilt is meaningful - can request a validation of the arrest by the Judge of Preliminary Investigation (the GIP).

If the judge agrees with the prosecutor that a serious indication of guilt exists, a warrant for the arrest is issued by the judge, and the person’s detention is thus validated.

Immediately, as soon as the status of “person who could yield useful information” status changes into the status of a suspect, the suspect person has a right to legal counsel. This legal counsel normally immediately appeals for the release of the suspect.

Subsequent hearings by different judges

Thus setting in motion what can be a LONG sequel of hearings - for which in US and UK common law there is no such equivalent. Each hearing is headed by a different judge. This judge examines prosecution and defence arguments, and decides if the suspect may be released on any of these bases:

  • Seriousness of the clues presented by prosecution

  • Likelihood of repeating a similar crime

  • Likelihood of fleeing the country during the ongoing investigation

  • Danger of tampering with, or fabricating evidence

If every one of the defence appeals fails, in front of a number of different judges, in a number of different hearings, and the investigation is officially closed, the suspect then goes on to a pre-trial hearing.

Once again here, yet another judge rules either to clear and release the suspect by rejecting the submitted evidence, or to send the suspect to trial on the basis of that evidence, thus making the charges official.

Judicial decisions on bail, house arrest, or jail

Now that the charges are official, the judge can decide if the defendant must await trial under house arrest, or in freedom, of if the defendant must remain in jail.

If the judge, based on their knowledge of the crime and the defendants, estimates that the chances of re-offending or fleeing the country are high, the suspect must remain in jail.

So nobody in Italy can be detained without a reasonable suspicion, a long series of judicial hearings (any one of which could set them free) or eventual official charges.

Amanda Knox and Raffaele Sollecito have not in fact been incarcerated for over one year due to zealous police or a bizarre prosecutor or the complicity of a number of judges throughout the process.

They have been incarcerated because an articulate and balanced process of law has officially and very fairly established there are strong indications that they willingly participated in the vicious murder of Meredith Kercher.

Failure of defenses to persuade judges

Their own lawyers have put up a tough fight for Raffaele Sollecito and Amanda Knox throughout the judicial process.  But they have simply failed to convince the judges throughout that process.

One that actually seems strongly weighted in their favor.

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Thank you Nicki. The first clear distinctions drawn that I’ve seen on the Internet. Sure is compelling. Should be very influential.

Here in the US - a long way from New York, thank god!! - there are still some elected police chiefs, elected prosecutors, and elected judges.

Not to mention some elected politicians, who make “law and order” their gig.

So we have the spectacles of x hundred executions every year - mostly in Texas now though, and none in the north-east.

And some zealous police and prosecutors who really do railroad innocents into becoming defendants.

And more people in prison now than in the rest of the known universe - and many prisons here sound rather horrific.

And a few hundred innocents released every year, usually when DNA proves no way they could have done it.

So… How does the Italian system look again? I’ll take it!!

Posted by Fast Pete on 11/26/08 at 08:05 PM | #

Thank you Nicki for this excellent post about the judiciary in Italy.

We can only hope the ignoramus Knox/Mellas and the pretentious Italian woman read it and educate themselves on the Italian judicial process and stop spreading their ugly lies.

Posted by Jools on 11/26/08 at 09:03 PM | #

Great post Nicki,

thanks for the effort you put into that because it is thorough, clear and concise

and factual and true.

Posted by Central Scrutinizer on 11/26/08 at 09:46 PM | #

Nicki, thank you very much! This explanation is so clear and timely and important. I thought I understood all the process, and I tried explaining it to someone, but I did not really get them to understand. This will do the trick!

Posted by Anne on 11/27/08 at 05:02 AM | #

Fantastic post Nicki, that’s just what we needed! For many, the Italian system is rather esoteric and the media haven’t really been doing a good job of explaining it, something that those who would muddy the waters have been very keen to exploit. This lays it all out rather nicely…great job!!!

Posted by Michael on 11/27/08 at 05:10 AM | #

I just wanted to add my thanks for this, Nicki. As usual, you do a wonderful job of explaining a subject that seems opaque to some. The Seattle PI has actually published a couple of good articles on this case by the reporter based in Italy, which also clearly explain some key differences in the Italian criminal justice system to non-Italians. I AM NOT TALKING ABOUT THE READER BLOG, of course. I’m talking about the factual reporting on the case, which appears in the “real” paper.
There are also good web resources on comparative law. One is run by Cornell University. A good place to look for more information is on the website of any reputable university in the US with a decent law school and courses in comparative law.

Posted by Skeptical Bystander on 11/28/08 at 08:03 PM | #

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Or to previous entry So The Trial Date IS Postponed, Now It’s 16 January