Following the declaration of unconstitutionality of the punishment for the crime of trafficking of soft drugs (v. Constitutional Court. decision n. 32/14), the Judge in charge of the enforcement of sentence, recovers the power to establish the punishment under the basic criteria of proportionality and adequacy, in accordance with the parameters given by art. 133 c.p. (Cass. Pen., Sec. III, 20 July 2015, n. 31389)

Therefore, the Judge cannot simply eliminate the part of the punishment that became illegal by exceeding the maximum compatible with the constitution: the Judge will have to define the punisihment again and he will also have to argue the correspondence of the new calculation to the above mentioned principles (for more contributions about the gradual erosion of the so called principle of inviolability of the decision, click here).

NEW RULES CONCERNING RIGHTS, SUPPORT AND PROTECTION OF THE VICTIMS OF CRIMES

Legislative Decree 15 December 2015, n . 212, implemented the Directive 2012/29/EU by making important changes to the Code of Criminal Procedure. Among the others, it should be mentioned the extension of the concept of “family” for the purpose of exercising the powers and rights of the victim died as a result of the crime, the introduction of disclosure and communication duties by the prosecuting authorities and the right to receive linguistic assistance .

It is also guaranteed to the victim who’s in a state of particular vulnerability, as defined by art. 90 quater of the Code, the application of protected modes during the depositions.

ALCOHOL TEST – BREACH OF THE DUTY TO WARN THE DRIVER OF HIS RIGHT TO BE ASSISTED BY HIS DEFENDING COUNSEL

The United Sections of the Court of Cassation solved the conflict raised between the single sections and established:

- That the nullity resulting from the breach of Article 114 dd.aa. of the code of criminal procedure (for not warning the driver of a vehicle who is going to be examined for the alcohol concentration of his right to be assisted by his defending counsel), can be claimed immediately and until the decision of the Court of first instance, in accordance with articles 180 and 182, paragraph 2, of the code of criminal procedure;

- That, in relation to art. 182, paragraph 2, first sentence, of the code of criminal procedure, the "Party" on which bears the burden of pleading the invalidity of an act is never meant to be the suspect or the accused, but always to be the defending counsel (Cassazione Penale, Sezioni Unite, Sentenza n. 5396 ud. 29/01/2015 - deposito del 05/02/2015 - download). source: www.cortedicassazione.it

THE MISSED APPEARANCE OF THE VICTIM BEFORE THE JUSTICE OF THE PEACE

In the proceedings pending before the Justice of the Peace, the failure of the victim to appear at the hearing is considered an expression of the will not to oppose the decision non to continue the criminal prosecution for the particularly tenuous nature of the fact (v. Court of Cassation, United Sections, PROVISIONAL INFORMATION n. 17, 16 July 2015 ). For further information click here.

THE EUROPEAN COURT OF HUMAN RIGHTS AGAINST THE FAILURE BY ITALIAN AUTHORITIES TO INTERVENE REGARDING MANIFEST SHORTCOMINGS OF OFFICIALLY ASSIGNED LAWYERS (SANNINO V. ITALY, 2006)

At the beginning of the criminal proceedings instituted against him, the applicant was represented by first one and then a second lawyer of his choosing, who obtained the right to summon defence witnesses to appear in court. The second lawyer subsequently withdrew from the case. The court assigned a defence lawyer to represent the applicant. Although the officially assigned lawyer was informed of the date of the next hearing, he was not, however, informed that he had been assigned to represent the applicant; nor, indeed, was the applicant. The court ordered him to be replaced by a different defence lawyer at each hearing. The applicant was present at most of the hearings. Evidence was heard from a number of prosecution witnesses. The applicant was sentenced to two years imprisonment. His appeals were unsuccessful. [...]

The lawyer appointed by the court to represent the applicant had been informed of the date of the following hearing, but not of his appointment.

That omission had partly explained his absence, which had led to the situation complained of by the applicant, namely, the fact that at each hearing he had been represented by different replacement court-appointed lawyers with no knowledge whatsoever of the case. They had not requested an adjournment of the proceedings or sought to examine the defence witnesses whom the court had given the applicant leave to call.

Admittedly, the applicant – who had been present at numerous hearings – had never informed the authorities of the difficulties he had been having preparing his defence, had failed to get in touch with his court-appointed lawyers and had not enquired as to the outcome of his trial. However, the applicant’s conduct could not of itself relieve the authorities of their obligation to take steps to guarantee the effectiveness of the accused’s defence because the shortcomings on the part of the court-appointed lawyers had been manifest, which had put the onus on the domestic authorities to intervene. Despite that, they had not taken any measures to guarantee the accused an effective defence and representation. (SANNINO v. ITALY, Application no. 30961/03, Third Section, Judgment of 27 April 2006, in ECHR - REPORTS OF JUDGMENTS AND DECISIONS 2006-VI). Source: www.echr.coe.int/

THE CONSTITUTIONAL COURT LEGITIMIZES THE EXCLUSION OF SUMMARY TRIALS AND PLEA BARGAIN RITES BEFORE THE JUSTICE OF THE PEACE

The proceedings before the Justice of the Peace has absolutely peculiar characteristics that justify sensitive deviations from ordinary model: the Legislative Decree n. 274 of 2000 provides for a completely autonomous sanctionary system and alternative forms of definition unknown to the Criminal Procedure Code with the major intent to ease the reconciliation between the parties: in this context, the Judge may even exclude the prosecutability in consideration of the tenuous nature of the fact, pursuant to art. 34, paragraph 2 (only if there is not an interest of the victim in pursuing the proceeding) and, also, the Judge may pronounce the estinguishment of the offense after reparative conducts, pursuant to art. 35, paragraphs 1 and 5 (after hearing the victim).

Therefore, the exclusion of alternative procedure in the trials before the Justice of Peace, does not violate the Constitution (Constitutional Court., Ord. 228/2015 - download).