Il contributo propone una comparazione tra la legislazione tedesca e quella Italiana concernente gli strumenti che il difensore ha a disposizione per svolgere indagini preliminari parallelamente all’accusa durante la fase d’istruzione del procedimento penale. Stante il rafforzamento, nello scenario multiculturale europeo, di una concezione fortemente partecipativa di giustizia penale, si è ritenuto necessario approfondire il tema della tutela della garanzia della difesa e analizzare le lacune ancora presenti, in un’ottica di comparazione ed armonizzazione.
The paper compares German and Italian legislation with regard to the possibilities that the defense counsel has at his disposal to conduct preliminary investigations in parallel with the prosecution during the instruction phase of criminal proceedings. It is necessary to examine the protection of the defense guarantee and analyze any remaining gaps in order to compare and harmonize, because of the strengthening of a fully participative notion of criminal justice in the multicultural setting of Europe.
1. Introduction - 2. The right of defense - 3. The right of defense in the Italian Constitution - 4. The right of defense in the German Basic Law - 5. Defense counsel’s assistance in German criminal proceedings - 6. The role of the defense counsel in the pre-trial phase - 7. Defensive investigation activities in the Italian legal system: Law 397/2000 - 8. The main rule of the new system: Article 327 bis of the Code of Criminal Procedure - 9. Title VI- bis of the Code of Criminal Procedure: investigative measures - 10. The reports and information by the defense counsel - 11. Prosecutor’s power of secrecy - 12. The other investigative measures - 13 Preventive investigative activity - 14. The use of investigative findings - 15. Concluding reflections: systems compared - NOTE
The right to defense in criminal trial is a fundamental right protected by international, European and constitutional charters. To respect the right to a “fair trial”, every person investigated, accused or charged has the right to an effective defense against the prosecution. It has a dual purpose: to ensure the regularity of the trial and to preserve or recognize the rights of the investigated person, especially his or her freedom. In recent years, a strongly participatory conception of criminal justice has been reinforced in the European scenario. In particular, the right of an effective defense has become a “precondition” for ensuring respect for all the other freedoms of the defendant, almost assuming a role of a “super right” [1]. Its protection has to be privileged “except to demonstrate that the thrust of the antagonistic value is so “needed” in the game of constitutional balances that not even an inviolable freedom such as, precisely, that of defense, manages to fully resist”. Nevertheless, in the pre-trial stage in almost all European legal systems there is a lack of the right of defense, particularly with regards to the regulation of investigations that the defense counsel can carry out as a counterpart to the prosecution.
Article 6 § 3 ECHR The criminal trial, as a delicate synthesis between the establishment of the truth and the protection of the individual, is increasingly inclined to be a ‘fair trial’ through minimum standards listed in Article 6 ECHR [2]. The right to a fair trial occupies an “eminent place” [3] in a democratic society characterized by the principle of primacy and certainty of law. It finds its “origins in the concepts of fair trial and due process of law in the Anglo-American tradition” [4] and expresses a need for legality and an idea of a symmetrical balance between the parties. Article 6 ECHR consists of three paragraphs: the first being dedicated to each type of trial; the second and third specifically focused on the criminal trial. [5] In particular, the third paragraph outlines the minimum rights of defense: the right to be informed of the accusation and to participate personally in the trial; the right to prepare a defense; the right to be assisted by counsel of the accused’s own choosing or, if the accused does not have sufficient funds, to be given it free; the right to cross-examination; and the right to have an interpreter. The guarantees of Article 6 § 3 must be interpreted according to their function in the general proceedings. [6] The first guarantee, Article 6 § 3 (a), contains the right of the accused “to be informed promptly, in a language which he or she understands and in detail, of the nature and cause of the accusation against him or her”. Detailed information is an essential prerequisite for a fair trial. Indeed, with the notification of the indictment the defendant must be formally informed about the factual and legal basis of the prosecution against him or her. From this moment the right of defense is recognized, which is expressed in the physical presence of the defense counsel during any investigative examinations, with a right to active intervention. [7] The Grand Chamber of the ECtHR, in the case Salduz v. Turkey [8], ruled that the failure to provide defense assistance from the very early stages of criminal proceedings is not compensated by regular defense assistance during the subsequent trial and the adversarial method to conduct the trial. The right to be informed of the nature and cause of the accusation must be [continua ..]
The right of defense in the Italian system is constitutionally guaranteed as an inviolable [25] right by Article 24 of the Constitution: “Everyone may take legal action to protect own rights and legitimate interests. The defense is an inviolable right at every state and level of the proceedings. The indigent shall be assured, by appropriate institutions, the means to act and defend themselves before every jurisdiction. The law shall determine the conditions and methods for the redress of miscarriages of justice.” This is a particularly relevant statement, but there is the risk of appearing “empty” [26]. In particular, attention is drawn to Paragraph 2 of the article which, in the face of the declaration of inviolability of the defense, does not clarify the essence of the right, the guarantees necessary for its concrete implementation, nor does it identify appropriate means to ensure the equality of the parties in the process. [27] Actually, it has been classified as a “freedom with positive content” and it is the legislature’s task to ensure its protection. [28] However, the second paragraph has elevated the right to “difesa tecnica” (effective defense) to a constitutional level. The Italian Constitutional Court, already in its first decisions on the subject, affirmed that Article 24 paragraph 2 of the Constitution “implies the effective power of technical and professional assistance in the conduct of any trial, so that the adversarial process is ensured and any obstacle to asserting the reasons of the parties is eliminated” [29]. Subsequently, in Judgment No. 18/1992, it emphasizes that the right to judicial protection should be considered among “[...] the supreme principles of our constitutional order, in which is intrinsically connected - with the same democratic principle - the assurance to all and always, for any dispute, a judge and a judgment [...].” The right of defense is placed “within a system in which are contained other constitutional freedoms, with which it must inevitably be confronted, and must be cast in a network of principles that also enhance it in relation to the context in which it is to be exercised. It is meant to say that the right of defense is instrumental with respect to the protection of other freedoms (...) Therefore, any hermeneutic operation must take [continua ..]
The German Basic Law (Grundgesetz, GG) does not contain an express reference to the right to defense. [34] According to the general opinion, the right to defense counsel is implicitly stated in the GG (footnote), but the problem is to find out which fundamental right should be taken as the basis. A first reference can be found in Article 1 of the GG (footnote), which protects human dignity as an inviolable right that must be respected and protected by the state. Different rights may rise as corollaries to the protection of dignity, [35] and certainly the right of defense in criminal proceedings is “one of the fundamental attributes of human dignity and one of the fundamental principles of the rule of law”. [36] Hence, a restriction affecting the right to defense “in its essential content cannot be accepted because is a violation of the fundamental norm of Article 1 (1) of the Basic Law on constitutional grounds”. [37] A further constitutional basis can be found in Article 103 (1) GG (footnote) which protects the right to a “fair trial” and, in particular, the right to be heard. The right to be heard, Article 103 (1) GG, includes the right to the assistance of defense counsel, since a person with no legal training cannot effectively exercise this right and thus the legal hearing is indirectly denied. [38] The right to defense counsel is predominantly considered to be part of the right to a fair trial [39], which in turn derives from Article 2 (1) of the Constitution in conjunction with the principle of the rule of law [40] and is ultimately rooted in human dignity. [41]
The German Code of Criminal Procedure (StPO) does not define the defense counsel’s legal position in criminal proceedings. The central provision of § 137 StPO states only in general terms that “Accused persons may avail themselves of the assistance of defense counsel at any stage of the proceedings”. [42] In the first paragraph of Article 137, the German legislator uses the term “kann” (= may) with reference to the assistance of defense counsel. This indicates that the defendant “may”, but is not required to, hire defense counsel, being able to freely decide to proceed with self-defense. However, this option is limited by § 140 StPO, which, in first paragraph, outlines the circumstances in which legal representation is mandatory. On the other hand, a general phrase for the court’s appointment of the defender is included in the second paragraph of § 140 StPO “The assistance of defense counsel is also mandatory if the assistance of defense counsel appears necessary owing to the severity of the offense, the severity of the anticipated legal consequence or owing to the difficult factual or legal situation, or if it is evident that the accused is unable to defend himself or herself”. The scope of the penalty or security measure that may be imposed should be used as the primary indicator of the “severity of the offense”. Instead, the “difficult factual or legal situation“ is to be assumed, particularly in the case of circumstantial trials and when only a defense attorney would be able to find a specific piece of exculpatory evidence. [43]
The most current doctrine [44] states that one of the defense lawyer’s rights is to conduct an investigation. Due process and the presumption of innocence serve as its Constitutional foundations. The StPO does not regulate the activities that the defense counsel can carry out in the preliminary investigation phase in parallel with those carried out by the prosecutor, [45] so-called Herrin des Emittlungverfahrens (governor of the pre-trial stage), threatening the balance between the powers of the prosecution and defense. [46] The defense typically takes on a passive position, assisting and supervising the prosecutor’s and judge’s actions [47] without having the power to intervene. [48] § 147 StPO [49], which governs one method of inspection, permits the defense counsel to read the prosecutor’s file, which is made available to the court, and inspect the evidence. Everything presented on remand is included in the file. This action is allowed at any procedural stage, including during the preliminary inquiry, unless it could jeopardize the findings of the investigation, for instance, by performing a “surprise” act. The most crucial step in developing an effective defense, according to case law, [50] is this file inspection. The sooner the defense counsel becomes aware of the file, the more he or she can influence the continuation of the investigation through motions or suggestions, otherwise unable to track the development of the inquiry. The prosecutor decides whether to allow file inspections during the pre-trial investigation phase. In some circumstances, the prosecutor’s rejection may be appealed. (footnote) This goes even further to highlight the unfairness between the parties during the pretrial phase because the prosecution is not only able to conduct all necessary investigations but also has the power to choose whether to make the file available for the defense attorney to review prior to trial. In each case, the defense counsel may have access to the records of the defendant’s interrogations and acts of inquiry at which the defense was present or should have been, as well as professional opinions, and may orally brief the assisted. The defense shall be allowed to make photocopies of the documents, except [continua ..]
The Italian Code of Criminal Procedure regulates the investigation rights of the defense counsel at the pre-trial stage in accordance with the principle of equality of arms between the prosecution and the defense at every stage of the proceedings. Prompted by the principles of due process contained in Article 111 of the Italian Constitution, Law No. 397 of 7 December 2000, entitled “Provisions on the subject of defensive investigations”, inserted in Book V of the Code of Criminal Procedure, Title VI-bis, containing an organic discipline of the defensive investigations.
The key rule in the defense investigation system, included in the code by Article 7 of law n. 397/2000, is Article 327 bis entitled “Investigative activity of the defense lawyer”. It is significant that this fundamental rule has been included in the general provisions about preliminary investigations. [55] It recognizes the defense’s right to carry out defensive investigations and make use of authorized deputies and private investigators or technical consultants. [56] In this way, the “triadic dimension” is also underlined in the preliminary phase of the judgment. The purpose of the defense’s investigative activity, which is characterized by the traits of partiality and facultativeness, is to “search for and identify elements of evidence in favor of his client.” Defense counsel is professionally obliged to pursue the interest of his or her client and not to engage in acts contrary to that interest. The forms and purposes of defense counsel’s acts are regulated in Title VI of Book V of the Code of Criminal Procedure. This does not preclude the legitimacy for the defense counsel to use atypical means of investigation, as long as they are appropriate for gathering information and do not interfere with the person’s moral freedom, within the bounds established by Article 189 of the Code of Criminal Procedure. The second paragraph of Article 327-bis, which uses the phrase “the exercise of the right of defense at every stage and level of the proceedings” outlines the primary goal of Law 397/2000 and extends the principle of the integrity of investigation also to the defense counsel. This principle was previously only acknowledged for the prosecutor’s activities. The defense counsel is authorized to conduct defense investigations not only at the stage of cognition but also after the formation of the judgment. However, it is not possible to acquire, in the appeal proceedings, the records of defense investigations containing statements, since they are contrary to Article 603 c.p.p. [57] In the proceedings pending before the Court of Cassation, on the other hand, the production of new elements pertaining to the merits of the dispute and the application of the substantive institutions is not [continua ..]
Title VI - bis Code of Criminal Procedure is completely dedicated to “Defensive investigation activities” and is composed of 9 Articles that regard the defensive activities and determine the way for their documentation and for their use in the trial. Title VI bis is placed after titles IV, V and VI, dedicated respectively to “Activities at the initiative of the judicial police”, “Prosecutor’s activities” and “Flagrant arrest and detention”, as a sign of recognition of the formal and material equal dignity between the investigative activities of the defense and the prosecutor’s investigative activities as well.
The first Article of Title VI is 391-bis c.p.p. rubricated “Interview, reception of statement and taking of information by the defense counsel” the section of the law that allows defense attorneys to ask and receive information from anyone who can relate situations beneficial to the investigation itself. There are two methods of gathering information: non-documented interviews and a collection of information with special forms of documentation (disciplined by art 391 ter c.p.p.). Non-documented interviews may be acquired by the defense counsel, substitute defense, private investigators, and technical consultants, for the purpose of evaluating the usefulness of further defense investigations. [59] Differently, the written statement or documentation, regulated by Article 391-ter c.p.p. can only be requested by the defense counsel [60] and his or her substitute. The different way the interview is conducted does not preclude the examination of the declarative source, which must be preceded by preliminary fulfillments such as in the invitations, which are not governed by law, but rather by the Rules of Conduct of the Criminalist [61], and in the tasks analytically specified in Article 391-bis, paragraph 3, c.p.p. [62] Different types of prohibitions are regulated. § 4 establishes the prohibition to request information on the questions formulated and the answers given to the judicial police or the prosecutor, which mirrors that introduced by Article 362 c.p.p. by the public prosecutor and the judicial police. § 5 places a prohibition on taking information and receiving statements from a person suspected or accused in the same proceeding, in a related proceeding or for a related offense, if his or her defense counsel, who must have been given notice in the previous 24 hours, is not present. According to the procedure for recording the statement of the assisted witness as described in Article 197 bis, § 3 c.p.p., the notice to the defense attorney serves as a general assurance. A further prohibition was inserted in 2012, with paragraph 5-bis, when proceeding to take information from juvenile persons for the crimes referred to in Article 351, paragraph 1-ter c.p. [63] Failure to comply with these provisions shall make the declarations and information [continua ..]
The legislature wanted to draw attention to the power of secrecy that prosecutors can exercise over the entire knowledge of the declarative source, as regulated by Article 391-quinquies c.p.p. The essential requirement for exercising the power of secrecy is the ‘reasoned decree,’ whose recipients are referred to collectively as ‘the persons heard,’ among whom is also the suspect himself/herself in the proceedings in which secrecy is imposed. This decree must not be longer than two months. The individual in question must be served with a copy of the decree in order to enable the defense attorney to independently verify the existence and duration of the concealment. According to Article 379-bis of the Code of Criminal Procedure, “the warnings of criminal liability resulting from the undue disclosure of the information” must be included with the announcement of the decree. Although the Article under consideration supports the need to reduce the risk of evidence contamination in order to safeguard the validity and acquisition of future evidence, it turns out to be, due to its ambiguity and the excessive latitude granted to the prosecutor, a source of gratuitous compression of the right of defense, if misused and if applied at crucial strategic moments for the defense itself [68].
The defense counsel may inspect or acquire copies of documents in the possession of any public administration, pursuant to Article 391-quater “Request for documentation from the public administration”. The defense must provide details on how the document relates to the criminal case. The recipient of the request is any public administration, whether it is an entity that has drawn up the document or an entity that holds it permanently. This rule must be interpreted to mean that the defender has the right to obtain documents other than those to which the interested party would otherwise be entitled, as long as they are administrative in nature. This is because Law 241/1990 already recognizes the possibility for private individuals to obtain documents from the P.A. The administration may refuse to hand over the document, either expressly or tacitly. In this case, the defense counsel may submit the request to the prosecutor or the judge for preliminary investigation, where the prosecutor has denied it. [69] In Article 391-sexies of the Code of Criminal Procedure, which establishes an “essentially perfect specularity” between prosecutorial investigations and defense investigations, the legislature has provided for “access to places and documentation” as one of the activities that can be carried out during defense investigations. The following abilities are listed as being under the right of access: observing or reporting the condition of places and things; conducting technical, graphic, planimetric, photographic, or audiovisual surveys. For the purposes of usability of the investigations in trial it is essential to respect the forms of documentation. According to Article 391-decies, 3 paragraph, the defense attorney is required to notify the prosecutor in advance of non-repeatable technical examinations, and the prosecutor is required to attend. Only a prosecutor’s faculty to attend is offered if the acts are carried out when places are accessed. In addition, provision is made for the defense counsel to make more incisive interventions on the occasion of access to places, not only of observation but also of ascertainment [70]. According to Article 391-septies of the Code of Criminal Procedure, access to public places is denoted as an unconditional right by defense counsel, in contrast to the right of access to [continua ..]
Article 391-nonies c.p.p., which establishes a pre-trial defense right, is a completely innovative rule compared to the constitutional provision which recognizes the right of defense in a technical sense only in a temporal connection with the establishment of the judicial proceeding which affects the person’s rights. [71] The defense has the right to gather evidence that can be used to support their client before the legal knowledge of the ongoing proceeding, either because he or she is not yet under investigation or because, even though he or she is, he or she is unaware of it because he or she has not received a formal notification, the so-called warranty information. A written directive given to the defense attorney that includes “an indication of the facts to which it refers” is a requirement for carrying out this preventive defensive activity. This directive allows for two things: first, the connection of the preventive investigation to a specific criminal proceeding that is later established at the interested party’s expense; and second, the identification of the object of the investigation. Since the inquiry is being conducted before a judicial authority has been identified, any activities that call for judicial authority approval or intervention are not considered admissible. Interviews with knowledgeable individuals, entry to public spaces, and the request for papers from the public administration are all acceptable methods of gathering information. These activities have the same probative value as the inquiry conducted during the proceedings. In fact, Article 391-octies declares that “evidence in favor of his client” shall be included in the defender’s file, without referring to the precise point in time in which such activities were carried out.
The Code of Criminal Procedure’s Article 391-octies is one of the most important regulations added by Law 397/2000. It is distinguished by a rigid symmetry with regard to the role of the public prosecutor, “equating the evidence collected by the defender, pursuant to Article 391-bis c.p.p., for their usability and evidentiary force, to that collected by the public prosecutor”. [72] The rule sets the methods for establishing and maintaining the defender’s file, as well as the procedures for depositing and using the deeds of defensive investigation during the preliminary investigation and preliminary hearing phases. Two methods of introducing the acts of defensive investigation into the proceedings are regulated: the first recognizes the right of the defense to present the investigative documents directly to the judge for the preliminary investigation and the preliminary hearing the defensive actions created, generating a direct channel of communication between the two subjects. The second method of introduction states the possibility of the defender “to present the elements of evidence in favor of his client directly to the public prosecutor”. This option is stated as a residual and secondary method, recalling the defender’s already-existing duty to direct the evidence gathered to the public prosecutor. However, the overall procedural position is completely shifted in favor of the suspect for whom there is no obligation to deposit but a mere possibility, and moreover, the documents filed by him or her are known to the public prosecutor only in the hypothesis in which the judge for preliminary investigations must adopt a decision at the ‘request of the other parties’ or with ‘their intervention’. Differently, the public prosecutor is obliged to fully disclose his or her investigative documents before closing the preliminary investigations and formulating the request for indictment. In accordance with the general alteration of the filing and formation of deeds electronically, the modalities of formation and custody of the defender’s file have been adjusted by Legislative Decree 10.10.2022, n. 150, also known as Reform Cartabia. According to Article 433 C.P.P., the defense file is added to the hearing file after the preliminary investigations are complete. This reference should not be interpreted as a chronological scan, but [continua ..]
The right of defense, as set out in the international and European Charters, is a fundamental right of the individual subject to proceedings. The analysis carried out has shown how this right obtains a different level of protection in the legal systems of the different Member States. A first difference between the German and Italian legal systems lies in the regulatory coverage of defense law. The Italian system recognizes an express constitutional coverage to the right of defense, both in a static and dynamic sense; unlike in the German system, the constitutional coverage is implicit, implied in other articles that generally protect the rule of law. Given the coverage of the International Charters, which both the Italian and the German systems abide by, this distinction has no bearing on the practical provision of the right to a defense in court. The function that the defense assumes during the preliminary investigation phase is what distinguishes the two systems. In the Italian legal system, Law 397/2000 recognizes the defender’s active role during the trial phase and regulates the tasks he or she can do and the applicability of the findings. The Italian system has made a significant advance in the complete realization of the idea of equal participation by the prosecution and defense at all stages and levels of the proceedings. [76] The recognition of the defender’s right to create a report of access, which makes the findings of the defense inquiry essentially procedural records that can be used in the case, is its most novel provision. In the German legal system, the defense attorney assists the suspect and merely controls the prosecution’s investigative activity during the preliminary investigation; as a result, only his or her right to view the prosecutor’s file is subject to regulation (147 StPO) and the right to be present during examinations by the court (§ 168 c StPO), by the prosecution (§ 163 a (3) StPO) and by the police (§ 163a (4) StPO). The German defense counsel can conduct his or her own investigations, § 137 StPO, but since there is no regulation by law, the jurisprudence and the scholars have to take action to fill the gap. The suggestions for a correct execution of the various investigations given by the doctrine are in any case subject to a discretionary evaluation by the [continua ..]
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