Keep silence for yourself: The protection of the right to silence in the Italian criminal justice system
| Author | Michele Panzavolta,Diletta Marchesi |
| Published date | 01 September 2021 |
| Date | 01 September 2021 |
| DOI | http://doi.org/10.1177/20322844211028306 |
| Subject Matter | Articles |
Article
New Journal of European Criminal Law
2021, Vol. 12(3) 365–388
© The Author(s) 2021
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DOI: 10.1177/20322844211028306
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Keep silence for yourself: The
protection of the right to
silence in the Italian criminal
justice system
Diletta Marchesi
Faculty of Law. KU Leuven, Belgium
Michele Panzavolta
Faculty of Law. KU Leuven, Belgium
Abstract
The present article aims to discuss the protection of the right to silence in the Italian criminal justice system
for an international audience. In Italy, the right to silence is a right that stems directly from the protection
offered by the Constitution to the right of defence. Much debate revo lves around the extent to which the
right deserves to be safeguarded. Although the majority of scholarship favours the broadest extension of
the right possible, this view is not endorsed unanimously. The legislature has introduced some limits, the
most important being that which confines the right to silence to the facts concerning one’sownre-
sponsibility, save for exceptions. The courts, in turn, have taken a softer approach in the protection of the
right to silence, which may allow the possibility of using the suspect’s silence to draw adverse con-
sequences. Although the Italian system offers comparatively strong protection to the right to silence, it
nonetheless leaves some openings that undermine the effectiveness of the right. This article therefore
argues that compensating for the possible side effects of the rules on cooperation, removing some negative
consequences of silence and the strengthening of remedies are the main fronts where the Italian system
can still improve the protection of the right to silence.
Keywords
Right to silence, Italian criminal justice system, adverse inferences from silence, suspect’s silence,
interrogation, rights of the defence, pre-trial investigations
Corresponding authors:
Diletta Marchesi, PhD fellow of the Research Foundation –Flanders (FWO), Faculty of Law. KU Leuven, Tiensestraat 41,
Leuven 3000, Belgium.
Email: diletta.marchesi@kuleuven.be
Michele Panzavolta, Faculty of Law. KU Leuven, Tiensestraat 41, Leuven 3000, Belgium.
Email: michele.panzavolta@kuleuven.be
Introduction: the Italian criminal justice system
Italy belongs to the group of civil law countries. Historically, the Italian criminal proceedings
resembled the traditional French mixed system with an inquisitorial investigation led by the in-
vestigating judge and a trial with adversarial characteristics. The 1988 Code of Criminal Procedure
(CCP)
1
enacted a paradigm change which turned Italy towards an adversarial system.
2
The CCP,still in force, regulates the criminal proceed ingsin detai l. The Code must not contradict
the fundamental principles set out in the Constitution,
3
the latter being the preeminent source of
national law. Among these principles, there is the right to a fair trial conducted with adversarial
proceedings in front of an independent and impartial judge.
4
The Constitutional Court reviews the
compatibility of the legislation with the Constitution.
The right to silence in Italy: a brief history
In Italy, recognition of the suspect/defendant’s right to silence has been gradual.
5
In the inquisitorial
system which was in effect for centuries, the suspect/defendant was required to speak the truth upon
oath; torture and violence were routinely employed to overcome silence.
6
Afirst departure from this
tradition can be witnessed with the 1807 Code of Criminal Procedure of the Italian Reign –entered
into force during the Napoleonic domination –which prohibited both asking a suspect/defendant to
take an oath and using forms of compulsion.
7
Nevertheless, suspects/defendants were still not
informed of their right to remain silent and no information was given on the allegations against
them.
8
If the suspects/defendants remained silent, the judge was required to warn them that the
investigations would still go on.
9
The situation improved slightly with the enactment of the 1913
Code, which required that suspects/defendants be informed of the allegations against them; this
moved the warning against the silent suspect/defendant to the start of the questioning.
10
The Code
did not, however, provide for suspects/defendants to be expressly informed of their right to silence.
This more liberal regime was once again tightened by the 1930 Code, drafted during the fascist
period.
11
This provided that, if the suspect/defendant refused to speak, mention be made of this in
the minutes, with the investigations nevertheless continuing.
12
Anyprior warningorinformationwhich
could even indirectly hint at the right to remain silent was written off as a dangerous concession. The
1. Codice di Procedura Penale, DPR 22 Settembre 1988, n 447 (CCP).
2. On the topic, see, e.g., Giulio Illuminati, ‘The Frustrated Turn to Adversarial Procedure in Italy (Italian Criminal
Procedure Code of 198 8)’(2005) 4 Washington University Global Studies Law Review 567; Michele Panzavolta,
‘Reforms and Counter-Reforms in the Italian Struggle for an Accusatorial Criminal Law’(2004) 3 North Carolina
Journal of International Law 577.
3. Costituzione della Repubblica Italiana (1947) (Costituzione).
4. Ibid, art 111.
5. For more details on this history, see VittorioGrevi, ‘Nemo tenetur se detergere’: Interrogatorio dell’imputato e diritto al
silenzio nel processo penale italiano (Giuffrè, 1972) 5–59.
6. Ibid 6–7.
7. Codice di Procedura Penale pel Regno d’Italia, 8 Settembre 1807, art 204.
8. Grevi (n 5) 24–25.
9. Codice di Procedura Penale pel Regno d’Italia, art 208. As noted by ibid 26ff, similar provisions were then introduced in
other following Italian codes (Italy was still divided in several states with different codes until 1865).
10. Codice di Procedura Penale Italiano, RD 27 Febbraio 1913, n 127, art 261(2); Grevi (n 5) 30–36.
11. Codice di Procedura Penale, RD 19 Ottobre 1930, n 1399 (Codice Rocco).
12. Ibid, art 367(2).
366 New Journal of European Criminal Law 12(3)
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