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.
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