Procedural tradition in the Italian Criminal Justice System
| DOI | 10.1177/1365712716655164 |
| Published date | 01 October 2016 |
| Date | 01 October 2016 |
| Subject Matter | Articles |
Article
Procedural tradition in the Italian
Criminal Justice System: The
Semi-adversarial Reform in 1989
and the inquisitorial cultural
resistance to adversarial principles
Riccardo Montana
City University London, UK
Abstract
The reform of the Italian Code of Criminal Procedure (ccp) in 1989 was an ambitious attempt
to transplant adversarial principles in a Criminal Justice System (CJS) that was rooted in its
inquisitorial structure. From the pure legal perspective, the reform failed because the CJS
appears now as a superimposition of adversarial values on a structure that remains inquisitorial.
From the socio-legal comparative perspective, however, there are other contextual issues that
deserve to be analysed. Following the introduction, I will focus on the changes that have taken
place in the Italian ccp in 1989. This part of the article will explain the new semi-adversarial legal
structure of the Italian CJS and the reasons why the current procedural system appears very
complicated. The second part of the article will concentrate on the inquisitorial cultural
resistance that Italian legal actors use to oppose the adversarial reform. The cultural analysis
will be emphasised through the contextualisation of the 1989 reform in the Italian distinctive
socio-political environment. In the third part I will analyse prosecutors’ legal culture to discuss
the internalisation of adversarial principles in the Italian CJS. The conclusion will emphasise the
importance of socio-legal asymmetrical comparisons to study the evolution and harmonisation
of European procedural traditions.
Keywords
comparative, culture, procedure, prosecutors, socio-legal
Corresponding author:
Riccardo Montana, Senior Lecturer in Law, The City Law School, City University London, Northampton Square, London EC1 V
0HB, UK.
E-mail: riccardo.montana.1@city.ac.uk
The International Journalof
Evidence & Proof
2016, Vol. 20(4) 289–304
ªThe Author(s) 2016
Reprints and permissions:
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DOI: 10.1177/1365712716655164
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Introduction
In 1989 the reform of the Italian code of criminal procedure (ccp)
1
was arguably the most ambitious
attempt to transplant adversarial procedural rules and values in continental Europe, where criminal
procedure was traditionally inquisitorial.
2
Legally speaking, this reform was not successful because
elements of inquisitorialism, for example judicial activism, are still visible in the Italian Criminal Justice
System (CJS) (on this point see, for example, Montana, 2012: 99–120 and Mirabella, 2012). In this
article I will first briefly describe the transition and differences between the adversarial reform in 1989
and the narrative of the current semi-adversarial procedural justice context. I will then focus on the legal
structure of the Italian procedural system, splitting my analysis into two parts: the pre-trial phase and the
trial. There are certainly other legal aspects of the Italian contemporary procedural tradition that are of
interest, for example the peculiar role of the jury and the investigation powe rs allowed to defence
lawyers. But in this section, alongside the description of the fundamental rules of the Italian criminal
procedure, I will focus on the mechanisms that show the clash between inquisitorial and adversarial legal
features and the complexity of the system.
No contemporary CJS is, or can be, fully adversarial or fully inquisitorial. Criminal procedure is
normally a mix of these traditions. Therefore, I will refer to these traditions as fluid and changing
systems which are the products of continuing interactions between jurisdictions, rather than normative
models. In this sense, Stewart Field, drawing on the work of Patrick Glenn on the concept of legal
traditions (Glenn, 2010), argues that ‘we need to see legal traditions [adversarial and inquisitorial] as
being invented and reinvented through the debate and dialogue that feeds social change rather than as
entities with objective, stable and fixed characteristics’ (Field, 2009: 370). So I do not intend to argue
that the structure of the Italian criminal procedure is now radicalised in one of these models. Instead I
want to demonstrate that different elements of the CJS (including the law) lean towards different
procedural values. Thus my aim is not to provide another doctrinal legal analysis of the Italian CJS,
3
but to discuss and critically analyse the legal rules that potentially favour legal actors’ resistance to
adversarial values.
In the following section, I will contextualise the legal transplant (or, using Langer’s words, this legal
translation)
4
of 1989 (and further amendments) within the socio-political environment of Italy. That
section, therefore, will focus on the social and historical conditions of existence
5
that supported the
development and crystallisation of a professional image (prosecutors, in particular) that is arguably
inquisitorial.
The final part of the article will focus on the function of prosecutors. This example will show how the
resistance that Italian legal actors showed towards the new adversarial features is not only a matter of
ambiguous legal rules. One of the reasons why Langer uses the metaphor of legal translations is because
the travelling of legal concepts ‘is a debate about legal cultures’ (Langer, 2004: 64) and legal cultures
1. The Parliament delegated the government to amend the code. The reform was approved in 1988 (DPR n. 447/1988), but became
operational in 1989.
2. The adversarial tradition is based on a system ‘in which procedural action is controlled by the parties and the adjudicator
remains essentially passive’ (Damasˇka, 1997: 74); on the contrary, in the inquest model the parties play a minimal role that is
‘subordinate to the court’s function of finding the truth’ (Jackson, 2005: 742).
3. For a doctrinal analysis of the contemporary Italian criminal procedure see, for example, Fassler, 1991; Freccero, 1994; and
Marafioti, 2008.
4. Langer, 2004. Langer argues that legal translation means that the transferred legal practice can be thought of as a text that has
been translated from one ‘language’ to another ‘language’ (2004: 6). Langer argues that the metaphor of the ‘legal translation’ is
a more nuanced and productive heuristic tool to think about comparative law (2004: 6).
5. Garland uses this expression (Garland, 2001: 2, the author is in turn taking this usage from Foucault) and he writes that his
argument ‘aims to trace the forces that gave birth to our present day practices and to identify the historical and social conditions
upon which they still depend’ (2001: 2). This is what I will do under ‘Prosecutors’ legal culture and the Italian procedural
tradition’.
290 The International Journal of Evidence & Proof 20(4)
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