Introduction

The role the public prosecution service should play in criminal proceedings is one of the most crucial issues in the metabolism of criminal trial and, therefore, one of the most discussed.
Many different blueprints do raise disagreements and feed a strong debate. One of the issues is which position the public prosecution service should be given in relation to other institutions and, particularly, to the government. Another issue is the contrast between a prosecutor bound by the legality principle and that of a prosecutor entitled to discretion in the prosecution of crimes. Other focus points are the internal relations within the prosecution office, and the relationship between the prosecution office and police.
All these issues touch the same overriding issue: who should be entitled to define the criminal policy and how should that policy be carried out and be applied in practice.
The present organisation of the public prosecution service in Italy – which has been outlined by the Constitution of 1947 – responds to the idea that policies on crime should be defined by the Parliament through enacting the criminal laws to be respected in the State. The public prosecution service, bound by the legality principle, and absolutely independent, should be the agency applying those policies, guaranteeing that the law is fully respected by every citizen, at any time. This means that criminal prosecution is mandatory: it should be necessarily undertaken whenever the suspicion of a crime does arise and offences should never be disregarded by the prosecu¬tion office.

Since the prosecution service is bound by the legality principle, prosecutors should obey the law only, as this is the only parameter they should use when performing their duties. This indeed also suggests the absence of any hierarchical organisation; since when the law is the only master of a prosecutor, the law should also be the only authority he should take order from and respond to.

This traditional concept of the public prosecution service has recently shown some weaknesses. This depends upon different variables. On the one hand, the extremely high number of proceedings results in caseload pressures, which are greater than that the actual organisation of the prose¬cution service can stand. This seems to make the legality principle evanescent as it forces prosecution offices to operate by setting priority standards on which cases to deal with first.
On another hand, studies on the interpretation of the law have shown that there is discretion in any interpretation, and therefore also in that of the public prosecutor accomplishing his duty.

These two observations in particular have made the belief grow that the decisions of the prosecution service are not as neutral as considered in the past and that they are subject to discretionary evaluations.
These conclusions challenge the coherence of the traditional view as expressed in the Constitution and in the Code of Criminal Procedure (CCP) and raise the question whether the role of the public prosecutor should remain the same or should be altered in some ways. Amongst others, the following questions are put forward. Shall the prosecution service remain independent from the political institutions or rather be put under the authority of the Government, so as to become politically responsible for its activities? Shall the principle of mandatory prosecution be preserved in the legislation, or would it be better to have it substituted by the opportunity principle? How should the prosecution office be structured, so as to guarantee a maximum of efficiency?

The debate is very intense at present and complicated by political interests. Some of these important issues have been dealt with in a bill (n. 1296), which has been approved by the Senate recently. This reform – which still needs the approval of the Chamber of Deputies – provides general guidelines that the government shall follow in issuing a legislative decree on the status of the judiciary. Even though the way to final approval is still a long one, and even though the government might decide not to exercise the delegated power of making this law, some of the provisions of the bill outline new scenarios.
As regards the prosecution service, the bill proposes a hierarchical organisation, which concentrates all powers of each prosecution office in the hands of the chief prosecutor. The goal is to grant more coherent action in the policy on crime: since there is inevitable discretion in prosecution activities, the first risk to be prevented is that of the discretion to be unpredictable, so that citizen can feel in jeopardy at any time. Those who oppose the bill observe that granting so many powers to a single official could be dangerous as it creates an excessively powerful position. Moreover, opponents fear this could be the first step for putting the prosecution under the government’s control, since a prosecutor with so many powers cannot remain independent for long.

The prosecutors will be positioned in the judiciary, but their function will be strictly separated from that of the judges. Admissions to the two different functions will depend on different criteria and examinations and passing an exam will also be necessary in order to move from one branch of the judiciary to the other.
The bill proves that the topic of the prosecution service, its activity and structure, is one of the most incandescent issues at present. But while the debate goes on and while legislative changes are being prepared, the prose¬cution system to be described here is still that created by the Constitution – with some inevitable adjustments to reality – that have however given good proof of longevity and of functionality.