CRIMINAL PROCEDURE
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- Versione italiana
- Academic year
- 2022/2023
- Teacher
- DANIELE NEGRI
- Credits
- 15
- Didactic period
- Secondo Semestre
- SSD
- IUS/16
Training objectives
- The teaching course aims at providing students with competence in the fundamental institutions and dogmatic categories of Criminal Procedure by means of an up-to-date explanation of the constitutional and conventional principles, and of the rules on criminal jurisdiction.
The major learning goals are represented by the institutes of Criminal Procedure in their static and dynamic dimension, with reference to their relationship with the relevant constitutional and conventional principles.
The student will acquire the following fundamental capabilities: comprehension of the significance of the principles governing the criminal proceeding and its functioning; acquisition of an appropriate technical vocabulary; capability of understanding procedural provisions; ability of critically analysing problematic issues of the criminal proceeding. The ability of testing the compliance of legal provisions with superior sources of law will be developed. Prerequisites
- Good knowledge of Constitutional and Criminal Law. The knowledge of the basics of General Theory of Law and Civil Procedure is recommended.
Bridging courses: Constitutional Law, Institutions of Private Law, EU Law, Criminal Law I. Course programme
- A. GENERAL FRAMEWORK (6 h.)
The rule of law principle and its applications within criminal proceedings. The relationship between Criminal Law and criminal trial. Procedural models: adversarial and inquisitorial system; fair trial. Chronological in-depth analysis of the reforms of Italian Criminal Procedure: from the Code of 1930 to the Code of 1988, the subsequent vicissitude of the latter. The structure of the current Criminal proceeding.
B. CONSTITUTIONAL PRINCIPLES AND PROCEDURAL INSTITUTES (21 h.)
Impartiality of the judge . Legally binding principle of natural justice (competence). The compulsory prosecution principle (statute and departments of the Public Prosecutor Office). The presumption of innocence (treatment rule and judgment rule; acquittal decisions). Defense right: self-defense (rights to information and right to translation; right to be present, right against self-incrimination); technical defense (retained lawyer appointment and court-appointed lawyer; legal aid for destitute persons; safeguards of freedom of the lawyer). The principle of adversarial adjudication and its derogations.
C. THE "DYNAMICS" OF THE PROCEEDING (15 h.)
Pre-trial investigations: from criminal record to the investigations of the criminal department and the prosecutor. The “acquiring” stage of investigations. Checks of the scene and technical ascertainments. Inspections, searches, seizures. Interceptions. Witness statements. Questioning and right to silence. The assisted witness. The defence participation to investigative acts. The secrecy and publicity of investigations. Defence investigations. Time limits and notice on the conclusion of preliminary investigations.
The decision between prosecuting and dropping the case.
D. PROCEDURAL ACTS (3 h.)
The invalidity of procedural acts. Evidentiary proceeding and the exclusionary rule for unlawfully gathered evidences.
E. THE "DYNAMICS" OF THE PROCEEDING-II PART (9 h.)
The criminal action and the charge. The pre-trial hearing. The “double-dossier system” and the impossibility to gather an evidence again.
The trial: general principles. The right to evidence. The model of the testimony. Cross-examination. Challenging witness and accused statements. Proven illicit conduct and parties agreements on evidence. Trial readings. The special evidentiary hearing. Documentary evidence. The circulation of evidences between different proceedings. Expert evidence. Changes to the accusation.
The victim, the civil party and vulnerable persons.
F. SPECIAL PROCEEDINGS (9 h.)
Trial-anticipatory procedures: immediate trial, direct trial. Trial-avoiding procedures. Proceedings by decree. Negotiated justice: summary trial, application of punishment upon request of the parties. Adult probation.
G. PRECUTIONARY MEASURES (9 h.)
The precautionary procedure as a “process within the process”. Serious indications of guilty and precautionary needs. The suitability and proportionality principles. The procedure and the precautionary decision. Revocation and substitution of the measures. Appellate remedies: the re-examination. The preventive seizure.
H. APPELLATE REMEDIES (6 h.)
General principles. The appeal. The appeal to the Court of Cassation. The revision. The rescission of the final criminal judgment.
I. THE REALITY OF CRIMINAL PROCEEDINGS (8 h.)
Preliminary presentation of a concrete legal case, attendance to the judicial hearing dealing with it and subsequent discussion of the relevant issues emerged.
The criminal proceeding from the point of view of the individuals involved.
Analysis of procedural acts and discussion on the relevant issues.
Each of the explained issues will go together with the indication of the relevant legal sources and case-law, which the student is exhorted to analyse. Didactic methods
- During the lectures the various institutions of the Criminal proceeding are explained. In this respect preliminary attention will be devoted to the Constitutional references of each topic addressed and to the principles enshrined in the International Charters of fundamental rights. Attention will be also payed to the historical and political context of each institution, through the presentation of the development of the proper dogmatic categories and the relevant case law. The course is intended to progressively stimulate students to recognize the systematic connections between issues addressed and to reflect on the compliance of specific provisions with superior sources of law. The final part of the course is based on practical exercises. Students are required to prepare and discuss legal texts in order to acquire a better awareness of the existing provisions and of the dynamics pertaining to the system. Moreover, at the end of the course, a visit to a Court will take place to allow students to attend to a trial, recognizing the legal provisions involved and identifying dysfunctions eventually occurred.
Learning assessment procedures
- Oral examination. The final grade is the results of at least two questions, one dealing with general topic (basically concerning a fundamental institute) and another on a more specific issue. The grade will be calculated as the mean score between the partial evaluation of the single answers. The failure in answering in a sufficiently correct way to one of the questions entails a third query, aimed at better clarifying the real competence of the student on that specific issue and on its general competence on the subject. Grades superior to 27/30 will be assigned to those students showing unequivocal capability of easily identifying the systematic connections within procedural provisions. In order to pass the examination with honors it is necessary to be able to address controversial issues of Criminal Procedure Law.
Reference texts
- A. CAMON–C. CESARI–M. DANIELE–M.L. DI BITONTO–D. NEGRI–P.P. PAULESU, Fondamenti di procedura penale, 3th ed., Cedam, Padova, 2021. Chapters: I–XVIII, XX (§§ 1–5).
*
The use of the following code is suggested: H. BELLUTA–M. GIALUZ–L. LUPARIA (eds.), Codice sistematico di procedura penale, 5th ed., Giappichelli, Torino, 2020.
