Chapter II
The Relation between the Public Prosecutor and the Minister of Justice       
According to the system provided for by the Constitution (Sects. 104-105), public prosecutors belong to the judiciary and are independent of any other powers. They are entitled to the same guarantees of independence as judges and can thus not be removed from office. Both prosecutors and judges are classified as magistrati (judicial officers): they are selected through the same competitive examinations (Sect. 106 Constitution) and follow the same career; once appointed, they may move from one function to the other, of course only at their own request. A public prosecutor is bound only by the law and prosecution is mandatory, unless there is manifest lack of sufficient evidence in order to file an indictment (Sect. 112 Constitution).

No hierarchical organisation of prosecution offices exists at a national level and the power to prosecute is diffused and not centralised. This has been usually considered as a means of avoiding interference by the Executive and of guaranteeing the equal treatment of citizens.
The prosecutor does not depend on other organisations or bodies. He is appointed by the Consiglio Superiore della Magistratura (Higher Council of the Judiciary), the constitutional body of self-government of the judiciary, which is composed of members elected for two-thirds by the judiciary and for one-third by Parliament, and is presided over by the President of the Republic. The prosecutor can be removed only for major violations of his duties, as a result of disciplinary proceedings. No general control or direction over prosecution policy as carried out by the offices or over the manner in which the prosecutors perform their functions is exercised by any other body.
Particularly, unlike the system which was in force before the issuing of the Constitution (1947), the public prosecutor is not a representative of the Executive to the judiciary and does not exercise his functions under the direction of the Minister of Justice. The latter is thus not entitled to give either instructions or general or individual orders. The role of the Minister of Justice is strictly defined by the Constitution: he has just the power to bring a disciplinary action in front of the Higher Council of the judiciary (Sect. 107 Constitution) and has the task to organise justice and to supply the material resources for the system to work properly (Sect. 110 Constitution).
This all means that the prosecutor is subject only to the law just as the judge; therefore, the Minister of Justice is not involved in the formulation of prosecution policy and can not be questioned by the Parliament in this regard.

The General Prosecutor to the Corte di cassazione (Supreme Court), who is the highest rank prosecution officer, has no hierarchical powers over the prosecutors operating throughout the national territory (apart from discipli¬nary action, in co-ownership with the Minister of Justice). He merely has the function of representing the State at the trials before the Supreme Court, the last instance judge to which the case can be submitted for a revision, solely on grounds of violation of law; therefore, the General Prosecutor does not conduct any investigation.

In each district, the Prosecutor-General to the Court of Appeal is the chief prosecutor. His directive powers, however, are limited to supervising prosecutors and police in the district. As the General Prosecutor to the Supreme Court, he cannot give instructions concerning prosecution policy. He can only remove the case from a prosecutor of the district in order to carry out investigations and file the indictment in substitution for him, but this power can be used under the conditions specified by law only, in case of inactivity of the prosecutor concerned.
The prosecution office entitled to investigate and prosecute an offence is that attached to the tribunal (Procura della Repubblica). In each prosecution office, there is a chief prosecutor (Procuratore della Repubblica), who has the task to organise the office and to appoint a prosecutor to each proceeding, but he has no hierarchical powers. As a result, the deputy prosecutors assigned to the office (Sostituti Procuratori della Repubblica) are able to decide and act in complete autonomy and are not obliged to follow the instructions given by the chief prosecutor in individual cases.
All the deputy prosecutors within the same office, therefore, have equal powers and are placed at an equal level; they are independent of each other (what is called internal independence, as opposed to the external indepen¬dence of political authorities and prosecutors). The chief prosecutor is responsible only for directing the organisation of the office, but he cannot affect the independence of each deputy prosecutor.

In 1991 a law was enacted establishing, within the office of the General Prosecutor to the Supreme Court, the Procuratore nazionale antimafia (national prosecutor against the mafia). His task is to promote the co-operation and the exchange of information among public prosecutors and to support their investigation in most serious cases, involving mafia crimes and, more generally, organised crime. For the same crimes, a special group of prosecutors (Direzione distrettuale antimafia) assigned to the office to the tribunal which is situated in the chief town of the district is entitled to investigate and prosecute. The national prosecutor against the mafia can take the case away from the competent prosecutor, but only if the latter remains inactive or refuses to co-operate; moreover, the measure can be opposed with a claim to the Prosecutor-General to the supreme court.

At present, even though the CCP provides for a strict separation between the role of the judge and that of the prosecutor, some political parties believe that, in order to ensure the impartiality of the judge, the unity of judges and prosecutors at the organisational level reduces the equidistance of the judge and, for this reason, should not be maintained.
A bill (n. 1296, passed by the Senate on January 21, 2004) which should allow the Government to enact statutes in order to modify the organisation of the judiciary has been discussed by the Parliament. According to this bill, both prosecutor and judge would continue to be part of the judiciary, but important differences between them would be introduced with regard to the modalities of the examination in the public competition which precedes the appointment as judicial officer. Besides this, the key-points of the bill are twofold. The possibility to move from one function to another should be subjected to a qualifying examination, and should be allowed only under the condition that the applicant is assigned to an office in a different district. Hierarchical powers should be granted to the chief prosecutor over the prosecution office, with the consequence that the autonomy and indepen¬dence of the prosecutors in conducting investigations will be reduced.
Focusing particularly on this latter point, it is provided that the chief-prosecutor should be the only entitled to the penal action and, consequently, the only one responsible for it. The chief could hand out a case to a deputy prosecutor only under specific delegation. When delegating, the chief should indicate the guidelines the deputy prosecutor has to comply with in that single case: if the delegate does not follow the instructions he could be removed from the case assigned. The bill does not specify how the chief’s guidelines should be, but it is legitimate to believe that their content could be diverse, as the whole responsibility for the activity lies with the chief.
A hierarchical structure is thought to ensure a uniform conduct in pursuing crimes and in the bill therefore the main decisions are entrusted to the same person, the chief-prosecutor. This would break with the current deputy prosecutors’ internal independence of each other. By receiving mandatory guidelines from the chief, the autonomy of each prosecutor is limited in favour of the uniformity of action by the prosecution service.
The distance of the bill from the current system is evident: at present the deputy prosecutor’s are not delegated but only designated; their powers do not descend from the chief-prosecutor’s appointment, but directly from the law. They can take all decisions regarding prosecution in full autonomy and are cannot be removed by the chief prosecutor.

According to the Constitution (Sect. 112), the prosecutor is under an obligation to take action in criminal cases, whenever there is sufficient evidence to charge a person with having committed an offence. As a result, the principle of legality strictly rules and no discretion is allowed to the prosecutor, no matter how slight the offence is. Once an offence has been reported, the prosecutor has no choice on whether to start proceedings or not, nor can he suspend or withdraw the action, which must always end in a judicial decision. The legality principle does not automatically imply the monopoly of the public prosecutor, but still at present only a marginal exception is laid down. With regard to the offences tried by the justice of peace, a penal action can be brought directly by the victim, by means of a counsel.
Even though the legality principle bars discretionary powers of the prosecutor, a factual discretion exists. That is because the principle of mandatory prosecution is not cost-effective. In fact, since especially in the biggest prosecution offices, there is an overload of reports by the police and complaints lodged by private persons. Consequently, it has become impos¬sible to investigate and prosecute all offences which have been committed, because of the organisational difficulties and limited manpower resources.
In this situation, the decision making process leaves room for prosecutor’s discretion. According to the legality principle, all reported offences are registered in the official records and proceedings are formally started for each of them; but the prosecutor decides at his discretion which offences have to be promptly investigated and which – in contrast – will be dealt with only later.
The key-point here is that a limited period for prosecuting crimes (prescrizione) is provided for by the law; its length depends on the seriousness of the offence, in the sense that the higher the level of penalty fixed by the law is, the longer the limitation period lasts. It shall be underlined that the time limits laid down by the criminal code may be extended once the penal action is brought or a conviction is pronounced, but in any case the increase cannot exceed the maximum of one half of the original period. Within these limits, in order to avoid the dismissal of the charge due to the lapse of time, it is necessary that a final judgment of conviction be pronounced (i.e. a sentence against which the accused has not any more the right to appeal).
As a consequence, the prosecutor’s delay with regard to the carrying out of an investigation can result in the expiry of the period allowed for prosecuting the offence. This situation can occur both during the investigations stage, if the prosecutor does not file an indictment against the suspect within the time limits fixed by the law, and during the stages that follow (trial and appeals). Therefore, the prosecutor’s choice to investigate some offences more promptly than others can influence the whole judicial process, even if investigations end with the decision to prosecute the suspect.
During the investigation stage, if the period to prosecute an offence has expired, the prosecutor shall request the judge a leave for a dismissal. The victim shall be informed of the prosecutor’s request for a dismissal and has the power to oppose the granting of the leave. Anyway, since this power is given to the victim only in order to ask for further investigations, it is useless when the conditions to dismiss the case because of the expiry of the period are met. Under these circumstances, as a matter of fact, the carrying out of investigations and the gathering of evidence are not allowed any longer, since there is a lack of legal basis for prosecution. For the same reasons, once the period is expired, the offence could not be prosecuted by the victim himself. It follows that the victim has no remedies against the inactivity of the prosecutor, who – despite the legality principle – does not conduct an investigation or delays it.

In this sense, it can be said that the prosecutor, at least in routine cases, may often decide at his discretion which offences shall be prosecuted and which offences can be de facto disregarded. Even though a wide debate on the necessity to mitigate the principle of mandatory prosecution, or to replace it with the opportunity principle, has taken place over many years, no important modification has yet been introduced.
In judicial practice, the prosecutor offices often set general priority criteria, but these criteria are meant for internal use only, and they are seldom or never made public. Priority standards have occasionally been set by the law with regard to particular cases, but after that no other initiative aimed at the same purpose has been taken. In 2001, the Senate passed a motion which set guidelines on justice to the Government: the motion required the Government to promote the introduction of priority criteria, which should have been set by the Parliament on proposal of the Minister of Justice and of the General Prosecutor to the Supreme Court. Nevertheless, no bill has been submitted by the Executive so far.

It is difficult to say whether in practice the prosecutor’s discretionary powers are growing or being used more frequently. Anyway, it can be said that the priority criteria set by the prosecution offices are outside any control. On the one hand, because of the independence of the prosecutor, Parliament and the Executive have no power to control the prosecution policy of the offices. On the other hand, the choice of the priorities in dealing with the reported cases is not subject to judicial control.
As a result, the risk of decisions influenced by opportunity factors or by political pressures is realistic. Nevertheless, it can be said that the first stage of the decision-making process is normally based on criteria regarding the seriousness of the offences committed and the needs of the community. However, it should be noted that prosecution decisions are often based on individual policy on crime, since the criteria according to which cases are handled are determined by each prosecutor at his discretion, and there is no authority politically accountable for the policy of the prosecution service as a whole.
The introduction of the opportunity principle could be useful to reduce the workload of the prosecution offices and to rationalise the investment of time and resources. However, it must be emphasised that an unlimited discretion of the prosecutor to prosecute or not, based on political rather than technical reasons, is to be considered inconsistent with the independence of the prosecutor. In this sense, the principle of mandatory prosecution can be seen as a necessary counterbalance to the independence of the prosecutor, since a totally independent prosecutor with wide discretionary powers would be beyond control, and the power to prosecute would turn into an absolute power. In other words, the opportunity principle would request to subject the prosecutor to the hierarchical power of the Minister of Justice, who is accountable to the Parliament, but this would mean that the Executive would influence the administration of the justice directly, which is contrary to the Constitution.
The problem is to establish general and reasonable priority standards, which could work as guidelines for all prosecution offices, ensuring an effective judicial control and the equal treatment of all persons in front of the law at the same time. As seen above, it has been proposed that it should be the Parliament to lay down specific prosecution guidelines which the prosecution offices ought to follow every year. At the moment, however, this proposal seems far removed from being discussed by the Parliament and becoming law.

Once the investigation has been concluded, the prosecutor may either file an indictment or request the judge’s leave for a dismissal. The dismissal, as a consequence of the principle of legality, is based solely on technical grounds determined by the law: that is, lack of sufficient evidence and lack of legal basis for the prosecution. Moreover, the dismissal is allowed when it has not been possible to find out the author of the offence. Both the request of the prosecutor and the decision of the judge have to be motivated. Since the dismissal is always a judicial decision, it can be appealed by the victim to the Supreme Court, in case the victim has not been heard by the judge. Once dismissed, the case may be reopened with the leave of the judge on request of the prosecutor, when it is necessary to carry out new investigations.
In the juvenile courts, the case can also be dropped because the offence is not significant enough, in comparison with the potential prejudice that the further course of the proceeding may cause the minor’s educational needs. At the request of the prosecutor the case can be dismissed during the investigation stage or at the preliminary hearing, but a decision of the judge on the issue is always required, or, at the hearing, even ex officio.
A similar provision has been enacted with regard to the offences tried by the justice of peace. The decision on dismissal, to be allowed when the offence is not serious and the conduct is occasional, shall take into account the prejudice to the offender’s work, studies, family or health and can be delivered by the judge during the investigation stage on request of the prosecutor or, at trial, even ex officio, but in the latter case only if the victim does not oppose.

According to the legality principle, the prosecutor has no other choice than prosecution or dismissal. It follows that the prosecutor can not be vested with the right to settle a criminal case out of court, since every proceeding must end in a judgment.
For the same reasons, the opportunities for diversion are strictly limited, because any form of diversion implies the start of the proceedings and the prosecutor has no power to drop a case without the judge’s leave. Conse¬quently, it can be said that in the Italian system the responses to criminal offending basically consist of a formal and official process of investi¬gation, prosecution, trial and sentencing.

Some room for discretion of the prosecutor is left with regard to the cases in which the penalty can be imposed without trial: the transaction on penalty (patteggiamento) and the order to pay a fine (procedimento per decreto).
The transaction on penalty consists in an agreement between the parties on the sentence to be imposed. This form of diversion is characterised by an exchange between a sentence discount and the defendant’s waiver of the trial. In other words, by means of a sentence discount, the accused is encouraged to waive the trial, with following savings of time and expense for the system. Since the policy criteria according to which the prosecutor should give his consent are not defined by the law, the decision depends on his choice, which is not always based only on technical reasons. Anyway, it is important to underline that, once the parties have reached an agreement, the judge must verify whether there are the conditions to pronounce the requested sentence or not.
There are three prerequisites for this abbreviated proceeding: the request of one party (prosecutor or defendant), the consent of the other party, and judicial supervision. In order to reach an agreement, the initiative can be taken both by the prosecutor and the defendant. If the request is made by the defendant, it is necessary to get the consent of the prosecutor and vice versa. The request must express the will of ending the proceeding with a sentence, the contents of which has to be specified. In particular, the parties must indicate the legal basis of the offence, the aggravating and mitigating circumstances and their balancing, the type and level of penalty.

The penalty which can be asked is one of the following: a fine, a non-custodial sanction or a custodial sanction. The defendant’s request or consent can be tied to the pronouncement of a suspended sentence. In any case, the sanction is to be reduced up to a maximum of one-third as regards the applicable one, provided that the sentence does not exceed five years’ imprisonment; but, if the sentence exceeds two years’ imprisonment, the patteggiamento is not admitted for Mafia crimes and organised crime. Once the request has been made by one party, the other party must declare to accept it.
Of course, neither the prosecutor nor the defendant is bound by the other party’s request. Nevertheless, it is important to underline that the prosecutor’s dissent, unlike the defendant’s, shall be justified. In fact, if on the one hand the prosecutor has the right to prove the case at the trial, he is not entitled to deprive the accused of the sentence discount without good reasons on the other hand. It follows that at the end of the trial, if the judge considers the prosecutor’s dissent as unjustified, he is entitled to reduce the applicable penalty all the same.
In order to avoid the collapse of trial and an useless waste of time and expense, the request shall be made and the consent be given during the investigation stage or at the latest within the preliminary hearing; it can be said that the law presses the parties to reach an agreement at the earliest opportunity, as that allows the maximum savings for the system to be made.

It is important to analyse the advantages to be gained by the parties by means of the patteggiamento. With regard to the defendant, it is clear that the most important advantage is the sentence discount. In particular, this benefit consists of a substantial reduction in the length of a custodial sentence and, sometimes, in the passing of a non-custodial rather than a custodial sentence. The defendant may prefer to trade a chance of acquittal for a lower sentence than he would have been received in the event of conviction. Moreover, since in some cases the trial can be a very distressing experience, the defendant may prefer to waive his right to it and to end the proceeding during the investigation stage or at the preliminary hearing by means of a transaction with the prosecutor. Finally, the defendant can not be condemned to the compensation of damages caused by the offence and, when the sentence pronounced does not exceed two years’ imprisonment, to pay the costs of the proceeding.

With regard to the prosecutor, the advantage is the smooth running of the system by bringing speed and a reduction of the costs and resources needed to deal with the cases. It follows that the prosecutor’s decisions shall be aimed at a proper and efficient administration of justice. The decision of reaching an agreement with the defendant shall not rely on opportunity factors or on political pressures. In order to avoid this risk, it would be essential that general and reasonable criteria were established according to which the choices of a policy on crime should be made. In this way, equal treatment of all people in front of the law would be, at least partially, more guaranteed.

Once the parties have reached the agreement concerning the appropriate level of penalty, the judge must verify whether there are the conditions to pronounce the requested sentence or not. The powers of the judge are substantial.
First, he must check that, considering the evidence collected by the prosecutor during the investigation stage, there are no conditions for an acquittal. Otherwise, he is obliged to acquit the accused ex officio, notwith¬standing his request or his consent to be sentenced. It means that the agreement between the parties is not exactly like a plea bargain. In fact, the defendant is not required to plead guilty, as his request to be sentenced, or his consent to the prosecutor’s request, does not involve a guilty plea. The request or the consent implies only the waiver of the trial and of the right to have the prosecution to prove the case. In other words, because of the defendant’s choice, the fundamental principle according to which the prosecution has the burden of proof of guilt at the trial does not apply. It follows, that the sentence which imposes the penalty agreed is not a conviction, since the judge, notwithstanding his supervision of the agreement, makes a summary and incomplete assessment of the alleged offence, only on the basis of the evidence collected by the prosecutor in the course of the investigation.
Secondly, the judge must verify that the charge corresponds to the facts alleged; that the application of the aggravating and mitigating circumstances and their balancing have a legal basis; that the requested penalty does not exceed five years’ imprisonment and its level is commensurate with the seriousness of the offence.
Only if both tests are satisfied does the judge pronounce the requested sentence, otherwise, unless there are conditions for an acquittal, he rejects the request and the proceeding will continue.
If the request is granted, the penalty is imposed on the level indicated by the parties, since the judge has the power to check whether it is commensurate with the offence or not, but not to change it. When the agree¬ment is subordinated to the condition of a suspended sentence, the judge can pronounce it or reject the request.
At the end of this short analysis, it is possible to emphasise one of the fundamental issues: the risk that the prosecutor’s decision to reach an agreement with the defendant relies on opportunity rather than on technical grounds. In fact, since the decisions of policy on crime are beyond any judicial control, they could be discretionary. In other words, discretion may lie not only on the decision to prosecute or not, but also on the choice of the type of the proceeding through which the principle of mandatory prosecution is complied with.

A trial is also avoided, when the proceeding ends with the issuing of a decree which sentences the accused to pay a fine (procedimento per decreto).
There are two conditions required by law. Firstly, the offence shall be prosecuted ex officio; if it can be prosecuted only on complaint of the victim, it is required that the victim did not oppose in the complaint to the issuing of the decree. Secondly, a fine must be the penalty commensurate with the actual offence.
If the prosecutor considers these conditions met within six months since the registration of the suspect’s name in the official records, he may request the judge to issue a decree which sentences the accused to pay a fine. The request shall be motivated and shall indicate the level of penalty, which can be reduced up to one half of the minimum fixed by the law.
As in the case of transaction on penalty, the powers of the judge are substantial. First, he must check that, considering the evidence collected by the prosecutor during the investigation stage, there are not the conditions for an acquittal; otherwise, he is obliged to acquit the accused ex officio. Secondly, the judge must verify that the charge corresponds to the alleged facts; that the application of the aggravating and mitigating circumstances and their balancing has a legal basis; that the requested fine and its level are commensurate with the seriousness of the offence.
Only if both tests are satisfied does the judge pronounce the requested decree; otherwise, unless there are the conditions for an acquittal, he rejects the request and the proceedings will continue.
If the decree is issued, the penalty is imposed on the level indicated by the prosecutor, since the judge has the power to check whether it is commensurate with the offence or not, but not to change it. The decree shall contain the charge and a reasoned motivation for the decision, included those related to the penalty discount.
The decree is notified to the accused, who can ask to be tried in a public hearing according to the general rules within fifteen days; otherwise, the decree can be executed, since no right to appeal against it is granted to the accused. In this way, the waiver of the trial and of the right to have the prosecution prove his guilt is left to the choice of the defendant.
The advantages gained by the parties are similar to those explained above with regard to the transaction on penalty. The defendant is sentenced to a fine instead of to a custodial penalty, and in any case the penalty imposed is reduced. To the prosecutor, the benefits consist in the smooth running of the system by bringing speed and a reduction of the costs and resources needed to deal with the cases.
The key-point is that, as seen above in relation to the transaction on penalty, the criteria according to which the prosecutor shall decide whether to file an indictment or to request a decree are not established by the law. As a consequence, also in this case, the decision to prosecute by means of the mentioned kind of proceeding could be the result of a discretionary choice of policy, which is left to the criteria established by the single prosecutor handling the case and beyond judicial control. In any way, it must be stressed that this latter special proceeding can be brought only for minor offences.