Defendants (criminal proceedings)

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What is an investigation?

An investigation is a series of activities carried out by the Public Prosecutor and by the Criminal Police right after a notice of offence. The notice of offence is obtained directly either by the Public Prosecutor, by the Criminal Police, or else, through an action entered by the claimant or by other individuals.

What is the purpose of a criminal investigation?

The purpose of the preliminary investigations is to ascertain whether a crime/offence was actually committed, to find the person responsible and to gather evidence to proceed with the investigation and the proceedings.

Who carries out investigations?

The Public Prosecutor, the Criminal Police and the defendant’s counsel carry out the investigation. Then there is the Judge for the Preliminary Investigations who guarantees respect for the procedural regulations and of the rights of the parties.

What are the main stages of a preliminary investigation?

Looking for evidence

The Public Prosecutor and the Criminal Police may arrange and carry out searches, controls, seizure of things and documents, examination of witnesses, telephone tapping, electronic surveillance and inspection of premises. The purpose of these steps is to look for and obtain evidence. The defendant’s counsel may carry out searches in order to look for evidence in his favor.

Interrogation

A suspected person may be called by the criminal police or by the Public Prosecutor to be questioned. The purpose of interrogation is to find out whether the individual is involved in a crime/offence.

Arrest, detention, preventive custody in prison and European arrest warrant

Police may arrest an individual if caught in the act of committing the crime/offence, or arrest him after the crime has been committed, if there is a risk that he might escape. The purpose of arrest is to avoid more crimes being committed and to take the individual into custody. The purpose of the arrest is to ensure that the suspect does not escape.

The Judge for the preliminary investigations may decide that the suspect should be kept in custody in prison. The purpose of this is to avoid more crimes being committed, to allow the necessary evidence to be procured and to avoid the suspected person escaping.

Lastly, the police may arrest an individual to enforce a European Arrest Warrant. The purpose of such Warrant is to take the individual into the custody of the requesting State.

Closing of preliminary investigations and preliminary hearing

Once the preliminary investigations are over the Public Prosecutor starts prosecution unless he has asked for the dismissal of the case.

For the most serious crimes a preliminary hearing takes place before the Judge before the trial starts. The function of this hearing is to act as a filter in order to assess the grounds for the accusation and to avoid useless trials. The defendant may choose to be judged by an alternative process avoiding trial and, in case of conviction from a reduction of his prison sentence.

My rights during investigation

Click on the following links to know what your rights are during each stage of investigation.

Looking for evidence (1)

Can the police carry out inspections and search my home, my car or my business premises?

Yes. The Police may carry out inspections and local searches either on their own initiative or at the request of the Public Prosecutor in order to look for and hand over the evidence of the crime/offence committed.

Can they do a body search?

Yes. There must be a warrant from the Public Prosecutor for a body search. However the police may stop and frisk a person on their own initiative.

Can the police take documents and objects that I am holding or which are in my home, car or business premises?

Yes. The police may seize documents and things which may be considered as material evidence and which are necessary for proving a fact, either on their own initiative, or with a warrant from the Public Prosecutor.

What are my rights in case of inspection, search and seizure?

If you are subjected to a body search or frisk you can be assisted by a trustworthy person as long as they are immediately available. A body search must be conducted respecting your dignity.

In the case of inspection or seizure with a warrant, the police must hand you a copy of such warrant. If you are not present at that moment the police must hand it to anyone present on site at the time. You have the right to be assisted by a lawyer but the police do not have to call the lawyer in advance.

Do I have the right to petition against seizure?

Yes, you can present a request for review within ten days of the seizure/impoundment order. The decision will be taken by the competent court.

Will I be asked for fingerprints or samples of my DNA (hair, saliva, body fluids)?

Yes. If you are suspected of a crime, the police may ask for DNA samples and fingerprints in order to identify you. If you don’t give your consent, the police can go ahead, by asking the Public Prosecutor simply for verbal authorization to take the fingerprints or samples.

You can be asked for fingerprints and DNA samples as evidence, but only if you are suspected of serious crimes and an order from the Judge is necessary or, in urgent cases, a warrant from the Public Prosecutor and then a ratification from the judge.

Can I ask to carry out investigations for my defence?

Your counsel has the right to carry out investigations on your account for your defence even through the use of a private detective.

He can also take down any statements from witnesses, inspect sites, authorize experts and ask for documents from the Civil Service.

Declarations from witnesses and documents can be taken by your counsel to the Judge for the preliminary investigations, to the Public Prosecutor and to the “Tribunale del Riesame” [a special court whose task is reviewing, at the request of the defendant, orders which impose coercive measures such as: home arrest or deportation].

They will be taken into account when the court makes its decision.

Questioning (2)

Why might I undergo interrogation?

If you are suspected of being involved a crime you might be called to be questioned in order to verify the allegations/accusations.

You can also ask to be interrogated in order to clarify your position.

If you are under arrest or custody, click here.

Will I get information on the charges before interrogation?

Yes. Descriptions of the facts regarding your accusation are contained in the summons for the interrogation. Before starting interrogation you will be told what you are accused of and the evidence against you.

Do I have to answer to the questions?

No. Before starting interrogation, the police and the Public Prosecutor must warn you that you are not obliged to answer the questions. Nevertheless, you have to answer the questions related to your personal details and previous convictions.

What happens if I don’t understand the local language?

You have the right to be assisted for free by an interpreter. The interpreter translates the questions and your answers.

Can I get a lawyer?

When you are called for the interrogation you will be told that you have the right to be assisted by a lawyer. If you do not have a lawyer, the court will appoint one for you. For information on how to get the services of a lawyer, go to Factsheet 1.

During the whole time you are being interrogated, you must be assisted by a lawyer whether a personal one or appointed by the court.

Immediately after the crime has been committed the police might ask you some questions even if your counsel is not present but you are not obliged to answer their questions. If you answer, your statements can be used as evidence in order to continue investigations.

Arrest, detention, preventive custody in prison and the European Arrest Warrant (3)

Why can I be arrested?

The police may arrest you if you are caught in the act of committing a crime, that is while you are actually committing a crime or if they chased you, immediately afterwards.

The police may also detain you for being caught in the act of committing a crime, when you are suspected of having committed a crime and if there is a real risk that you might escape.

A judge in the preliminary investigations may order that you should be kept in custody in prison if there is serious evidence that you might be guilty of a crime and there is a risk that you might somehow interfere with or obstruct the course of justice or that you might commit other crimes or that you are about to escape.

Will I be able to speak to a lawyer?

Yes. Right after arrest, detention or after an order of custody has been notified in prison, the police must inform you that you can appoint a lawyer. The police have to call your lawyer immediately or, if you do not have one, the lawyer who has been appointed by the court. For information on how to get the services of a lawyer, go to Factsheet 1.

You have the right to talk with your lawyer immediately.

Should there be exceptional reasons for being held in custody, the judicial authorities might postpone your discussions with your counsel for a period not exceeding 48 hours in the case of arrest or detention, and of 5 days in the case of custody.

Can I contact a family member?

Yes. The police will contact your relatives if you give them authorization to do so.

Will I be questioned? Should I provide information?

If you are arrested or detained, the police may question you with your lawyer present but you are not forced to answer their questions.

You will be told what the accusations and evidence against you are.

In the detention hearing you can be interrogated by the Judge but you are not obliged to answer. You can also ask to be interrogated.

In the case of custody in prison the Judge must interrogate you within 5 days of the beginning of such custody (so called custodial interrogation). The presence of your counsel and of an interpreter is compulsory and you are not obliged to answer.

For further information see Questioning (2).

What happens if I don’t understand the language?

You have the right to be assisted for free by an interpreter. The interpreter translates the questions and your answers.

How long can I be held by the police?

After your arrest or detention you can be kept at the police headquarters for up to 24 hours. Within this period of time the police must put you in prison. A hearing to confirm the arrest or detention takes place before a Judge within 48 hours from the arrest. Once the hearing is over, the Judge may either order you to be released immediately or decide on a personal custody measure.

Can I appeal against an order that forces me to be in custody?

Yes. Within 10 days from the execution of the order, you can ask the competent Collegiate Court to review the order. A hearing will be arranged where you have the right to attend and you can ask to be heard. You can appeal to the Court of Cassation against the decision of the Court within 10 days of the decision being made.

What happens if I am arrested under a European Arrest Warrant?

If one Member State has ordered a European Arrest Warrant you can be arrested inside another Member State and handed over to the requesting State after a hearing before the Court of Appeal.

You can be arrested by the police on their own initiative or after an order for custody issued by the Court of Appeal.

You have the right to appoint a lawyer. If you do not have one, a lawyer will be appointed for you by the court. Your counsel and your Embassy must be called immediately.

Within 48 hours from being arrested by the police or within 5 days from the execution of the custody order, a Judge will hear you with your counsel being present and with an interpreter.

A hearing before the Court of Appeal will take place within 20 days of your arrest. At that hearing, a decision will be taken on whether you should be handed over or not. You can appeal against such a decision before the Court of Cassation.

End of the preliminary investigation and preliminary hearing (4)

What happens once the preliminary investigations are over?

Unless the Public Prosecutor asks for the dismissal of the case, he will notify you that the preliminary investigation has come to an end. You will not be notified if the crime comes under the jurisdiction of the Justice of the Peace.

You can consult the records of the preliminary investigation and know about the transcripts of the evidence against you. You can file briefs and evidence for your defence; and ask to be interrogated again.

After the notification that the preliminary investigation has come to an end, unless the Public Prosecutor asks for the dismissal of the case, he will start the prosecution. For minor offences, the Public Prosecutor will summon you directly for trial. In other cases he makes a request for trial to the Judge for the preliminary investigation.

What is a preliminary hearing?

The purpose of the preliminary hearing is to verify the charges against you.

It is carried out in private with the Public Prosecutor and your counsel and, if you want to do so, you can participate and be heard. The Judge may listen to the witnesses and procure documents. At the end of the hearing, the Judge may either dismiss the case, or commit it for trial before the Court or the Court of “Assise”.

Do I have the right to have a lawyer?

Yes, it is compulsory that you are assisted by a lawyer.

For more information, go to Factsheet 1.

What happens if I don’t understand the language?

The request that you should be committed for trial and the charges, have to be translated into your language. If you are present at the hearing, you will be provided with an interpreter.

Do I have to be present?

No. You can choose not to be present.

Can I avoid going to trial?

Yes. You can ask the judge at the preliminary hearing to be judged by means of a summary trial. The hearings take place in private and the decision is taken on the basis of the written evidence. Should you be convicted, the penalty will be reduced by a third.

You may also avoid going to trial by agreeing a reduced penalty with the Public Prosecutor (plea-bargaining).

Last update: 25/06/2018

The national language version of this page is maintained by the respective Member State. The translations have been done by the European Commission service. Possible changes introduced in the original by the competent national authority may not be yet reflected in the translations. The European Commission accepts no responsibility or liability whatsoever with regard to any information or data contained or referred to in this document. Please refer to the legal notice to see copyright rules for the Member State responsible for this page.

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