Where’s my lawyer? Making legal assistance in pre-trial detention effective 4. Italy Main findings and key challenges In Italy, the Directives were transposed with the exception of a few normative prescriptions regarding the Interpretation and Translation Directive. Challenges in the area of pre-trial detention stem above all from the practical obstacles to the effective implementation of the Directives. These obstacles prevent the full benefit of the rights prescribed by the Directives at the time of the validation hearing and the fasttrack trial (Giudizio direttissimo). In these cases, suspects or accused are generally arrested during the night and the lawyer is notified of the arrest and of the time of the validation hearing that generally takes place the following day. The police rarely interrogate the arrested person at this time. Pre-trial detention orders: • Lack of trust in alternative measures: • More specifically, the following challenges were identified: Confidentiality of consultation: • Due to the absence of adequate facilities, there is a lack of confidentiality in the first consultation with the lawyer taking place before the validation hearings and fast-track trials. In many tribunals, consultations take place in the corridor in front of the courtroom and in the presence of the police officers. Furthermore, it seems common practice on the part of the police to call the lawyers at dawn or at night at the landline office number rather than on the cell phone number. • When preparing the defence for fast-track trials, the lack of facilities for confidential consultation between lawyer and client, as well as the lack of adequate time to meet a client and get acquainted with the circumstances of a case was highlighted. In the cases of fast-track trials, the case file is often handed to the lawyer a few minutes before the trial, so she/he has an average of 10 to 30 minutes to get acquainted with the facts of the case and to be able to prepare a defence. For this reason, the judge relies heavily on the arguments presented by the prosecution. Translation and interpretation: • In cases involving foreign defendants, the assessment mechanism of a defendant’s Italian language skills is problematic, and interpreters are often only called if the suspect’s or accused person’s knowledge or understanding of Italian is minimal. Interpreters are mostly absent during a defendant’s consultation with their lawyer. But even where interpretation services are provided, their quality is often insufficient, as interpreters generally lack knowledge of the legal framework. Judges and, above all, prosecutors do not believe in the effectiveness of alternative measures to pre-trial detention. House arrest and the obligation to report to the police are the most commonly used alternatives, whereas the number of electronic control bracelets is not adequate to meet the demand. Discrimination: • Vulnerable defendants who lack housing and a network of social relations are usually placed in pre-trial detention even when house arrest would have been sufficient. • Also, discrimination against certain groups of persons is an issue of concern. Regarding foreigners, a significant difference in treatment has been observed between irregular migrants from third countries, who tend to be placed in pre-trial detention, and EU nationals who are more likely to be subjected to less restrictive measures. This is mostly due, like in the case of vulnerable defendants, to the lack of housing and a network of social relations. Lack of adequate facilities and sufficient time: • In addition, it was observed that the justification for pretrial detention orders is extremely stereotypical and relies excessively on the existence of a criminal record of committed crimes. The seriousness of the alleged offense is often the decisive factor in justifying pre-trial detention. Review of pre-trial detention: • The Italian legal system provides for the possibility of proposing a revision of the precautionary measures anytime during the proceeding and does not set out an obligation to review pre-trial detention at regular intervals. Procedures for reviewing measures are decided with the mandatory participation of the lawyer, while the accused doesn’t have an obligation to take part in the hearing. A periodic revision of the measure could be introduced in addition to the existing possibility to propose a revision anytime with the objective to better guarantee the rights of those defendants who don’t benefit from an effective legal assistance. 39