CONSULTATIVE COUNCIL OF EUROPEAN PROSECUTORS (CCPE)

1. Definitions

1.1      Is there in your country a definition of a victim or a witness of crime? If yes, is it established in the law or other legal instruments?

In the Italian legal system, the expression “persona offesa dal reato” (an injured party victim of a criminal offence) relates to a person holding a right protected by criminal law.

There is no definition for “a witness”, but it can be indirectly deduced from the Code of criminal procedure. The Code establishes that a witness “shall be questioned on the facts which are referred to as evidence”.

1.2      Are there in your country special regimes for victims of certain types of crimes, for example, domestic violence, sexual abuse, trafficking in human beings? If yes, can you list them?

In the Italian legal system, there are special regimes for the assistance to victims of certain types of crime: for example, for the victims of trafficking (programs for their assistance, protection and social inclusion are envisaged by the law) or for the victims of domestic violence (physical, sexual, psychological or economic violence within the family or between persons now or once united in marriage or by an emotional bond). The granting of a special residency permit is envisaged in case of foreigners.

Moreover, several rules provide for an economic compensation in favour of victims of certain types of crime: civil servants or citizens who become victims in performing their duties, or victims of terrorist attacks or organized crime; civilian or military victims of terrorist attacks taking place abroad; victims of usury or serious extortion.

1.3      Is there in your country a definition of vulnerable persons, either in general sense, or particularly within the framework of criminal procedure? If yes, is it established in the law or other legal instruments?

The notion of vulnerability can be derived from a number of specific legal provisions. It can be referred to the individual characteristics of a person who is suffering from the consequences of a crime or to the type of crime.

Vulnerable persons include children, mentally-ill persons as well as victims of sexual offences, mistreatment, domestic violence, genital mutilations, trafficking and enslavement, mafia crimes, terrorism, heinous crimes (such as “feminicide”). This category also includes the victims of crimes committed for racial hatred or for the purpose of discrimination, as well as the victims who are emotionally, psychologically or economically depending on the perpetrator.

2. The rights of victims, witnesses and vulnerable persons

2.1      Are there in your country specific rights of victims, witnesses and vulnerable persons within the framework of criminal procedure, in addition to human rights in general?

Yes, there are.

2.2      If yes, are they established in the law or other legal instruments?

They are established in the law.

2.3      Please enumerate briefly these specific rights (e.g. the rights to protection, to be treated fairly and with dignity, to be notified, to be present and to be heard at court proceedings, to seek restitution, to the respect of privacy, to make a complaint about infringement or denial of their rights).

An injured party victim of a criminal offence (persona offesa dal reato) has the right to receive a range of information that are listed in detail by Italian law (see point 2.4).

He/she can make use of legal counsel and (if he/she has no financial means) he/she can have access to Legal Aid.

He/she has the right to interpretation and translation of documents. He/she can lodge statements of case at every stage and level of the proceedings and indicate evidence. He/she can lodge a statement of opposition to the judge against the public prosecutor’s request for dismissing the case. He/she can appoint his/her expert in case of incidente probatorio (procedure for the taking of evidence during the pre-trial stage). He/she can challenge the infringements of his/her rights.

Measures of protection can be ordered for him/her, when necessary.

2.4      How are victims, witnesses and vulnerable persons informed of their rights? Are there any formal arrangements or informal mechanisms, free access to relevant information and databases etc.?

The Italian Code of criminal procedure provides that an injured party victim of a criminal offence (persona offesa dal reato) shall have the right to be informed –since the first contact with a prosecuting authority and in a language he/she can understand– of the procedures whereby a complaint may be lodged, his/her position during trial and his/her possibility to claim damages and reimbursement for trial costs.

A victim may request that all information about the state of proceedings be sent to him/her. He/she may request to be warned of the public prosecutor’s request for dismissing the case.

He/she must be informed of the place and date of trial, the count of indictment, the incidente probatorio (procedure for the taking of evidence during the pre-trial stage), the faculties he/she is entitled to. He/she must be informed that protection measures might eventually be ordered in his/her favour, how he/she can challenge any infringement of his/her rights. He/she must also be informed about the defendant’s arrest, release and evasion, as well as health facilities on his/her territory, anti-violence centers and shelter houses.

2.5      What kind of penalties and sanctions are established for violation of these rights?

2.6      Are there in your country specific rights of vulnerable persons due to their age (children, elderly people) or disability (physical or mental), either as victims or as witnesses?

The general criterion to establish the condition of special vulnerability under Italian law has already being indicated at point 1.3.

There are rules reinforcing the protection of a particularly vulnerable victim during his/her hearing, whether it is during investigation, incidente probatorio (procedure for the taking of evidence during the pre-trial stage) or trial. The cases of incidente probatorio and audio-visual recording of his/her statements have been extended.

During the preliminary investigation, the police may make use of an expert in psychology appointed by the public prosecutor, when a particularly vulnerable victim is examined to give summary information. The police have to ensure that a particularly vulnerable victim shall have no contacts with the defendant during his/her hearing.

A victim must not be called to bear testimony several times, unless strictly necessary.

The judge can order that his/her examination shall take place “under protected conditions”, such as the usage of a “two-way mirror” together with an intercom system, or the examination shall be made in a different place rather than the Courts (even in the person’s home or in facilities specialized in assistance).

2.7      When a decision in criminal matters is likely to affect the rights or the situation of a vulnerable person, is it brought to the attention of other bodies dealing with the rights of that person (e.g. a measure prohibiting contact with his wife for a husband in the event of domestic violence brought to the attention of the court responsible for ruling on the custody of children)?

Yes, it is. For example, if the victim is a child, the Juvenile Court is informed, in case they need to take a decision for his/her protection.

2.8      Can such vulnerable persons bear testimony alone or only following authorisation by their legal representatives, and in this latter case, in what conditions?

Any person can be a witness (even children under fourteen years old, but the obligation in engaging oneself to tell the truth while he/she bears witness during trial is provided for persons that are older than fourteen years old).

It is up to the judge’s discretion to assess the reliability of a witness. The assessment of a witness under age made by the judge prevails on the evaluation of experts who are called to give an opinion on the child’s ability to bear testimony.

2.9      Is the refusal to bear testimony admissible, for instance as regards children or mentally disabled persons? In what conditions?

Any person can bear testimony. However, it is up to the judge to assess, even through experts, if a person is physically or mentally suited to bear testimony.

Any person who is called to bear testimony has the obligation to present himself/herself before the courts and answer the questions, unless these questions might lead to his/her criminal liability.

2.10    Who proceeds to the evaluation of vulnerable persons and how the risk is assessed? Can the vulnerable person play a role in assessing such a risk? Which protective measures may be adopted and by whom?

See point 2.6.

2.11    Are there, in your country, any special procedures that allow testimony to be filmed, recorded and/or given from behind a screen? If so, in what circumstances can this occur?

Yes, there are. See point 2.6.

2.12    How is the prevention of repeated victimisation ensured?

Through the set of measures listed at point 2.6.

2.13    Are the rights of victims, witnesses and vulnerable persons foreseen only for nationals or also for foreigners? Under which circumstances?

The Italian legal system makes no difference between victims, whether nationals or foreigners.

3. Role of prosecutors in protecting the rights of victims, witnesses and vulnerable persons

3.1      How are the rights of victims, witnesses and vulnerable persons within the framework of criminal procedure enforced and guaranteed? What is the role of prosecutors in this matter?

In the Italian legal system, public prosecutors belong to the judicature and as such they are entitled to guarantee the respect for the victims’ rights, just like judges.

Public prosecutors obtain criminal offence reports and they coordinate preliminary investigation.

With reference to victims, public prosecutors hear their statements in order to obtain more evidence, in comparison to what was recorded in their complaints or suits (this endeavour can be delegated to the police too). At the issue of this examination, they may order further investigation activities (searches, seizures, acquisition of phone records and documents, request for phone or electronic tapping, examination of witnesses, etc.).

3.2      Is this role of prosecutors established in the law or other legal instruments? Is this role established in the rules of ethics and professional conduct of prosecutors?

This role is established in the law and it has a constitutional foundation.

3.3      How is this role fulfilled in practice? How do prosecutors cooperate with other organs of state in fulfilling this role, and do prosecutors have supervisory or monitoring functions?

As underlined at point 3.1, public prosecutors coordinate police activities under their direct authority. In this capacity, public prosecutors give police forces the direction for their investigation, delegating some specific activities and directly carrying out some acts.

3.4      Can victims, witnesses and vulnerable persons apply directly to prosecutors for protection of their rights?

Yes, they can.

3.5      Can prosecutors, at their own initiative, start legal action for protection of the rights of victims, witnesses and vulnerable persons?

Yes, they can.

3.6      Concerning assistance to victims, witnesses and vulnerable persons, do the prosecutors interact with other state bodies, private entities or NGOs?

Yes, they do. When some categories of offences are concerned, a network of organizations steadily interacts alongside with prosecution offices and police forces. When certain offences are prosecuted (such as mistreatment, sexual assault stalking, trafficking) and there is a need for ensuring immediate protection to the victims, public prosecutors may address themselves to anti-violence centers or shelter houses. The latter can protect the victims by offering them safe shelters and anonymity.

3.7      Do the prosecutors benefit from specific training on the protection of the rights of victims, witnesses and vulnerable persons? Does such training also involve prosecutorial staff and law enforcement agencies? Do the prosecutors play a role in carrying out such training?

Italian prosecutors belong to the judicature, as underlined here above. As a result, they must attend training courses in general and special matters, as all the other members of the judiciary. The High School for the Judiciary organizes courses also devoted to the protection of victims of criminal offences and cooperates with other organizations, thus giving professionals outside the judiciary the chance to participate.

In addition to participating in training courses organized by the High School, prosecutors in turn cooperate –in the local communities where they work– with police forces. This way they can ensure that practical workers may receive some training in sensitive matters such as the examination of children and the examination of victims of sexual abuse or mistreatment offences.

3.8      Any other relevant point you wish to raise.

The Italian Minister of Justice has declared the reinforcement of the protection of victims of crime a political priority for the year 2017.

The General Directive issued by the Minister aims at reducing the “secondary victimisation”, as well as at granting the victims’ rights to be notified, to take part in judicial proceedings, to be assisted and to access expert support facilities.