Inquisitorial criminal justice
The changes introduced to the inquisitorial criminal justice system in Italy and how it has affected the fight against Mafia
Inquisitorial criminal justice
Inquisitorial criminal justice
The inquisitorial criminal justice system as is employed in Italy can be loosely defined as a procedure by which the judge(s) attempts or tries to discover the raw facts regarding a particular case while at the same time representing the core interests of the nation in regard to the given trial. Therefore inquisitorial system can be illustrated by comparing it to the adversarial or accusatorial systems, which are commonly employed in both the United States and the Great Britain. Basically, in the inquisitorial justice system, the adjudicating judge is not a flaccid beneficiary of any information. To a certain extent, the leading judge is chiefly accountable for overseeing the gathering of the verification crucial to determine the case. Also the judges lead in the look for evidence and question the eyewitness, as well as the defendant. However, Attorneys undertakes a more reactive role, proposing routes of investigation for the chairing judge and following the panel of adjudicators inquiring with own queries 1.
Inquisitorial criminal justice system in Italy
Italy is a typically a homogenous in both language and religion, but can be said to be diverse in cultural, political and economic aspects. As a member of EU it enjoys one of highest population density in Europe. However, due to diverse challenges, which include health and economic changes, currently, this nation is witnessing a declining population due to what the observers are terming as low birth rates 2.
From the ancient times Italy was known for its penchant of changing succession of its counties, states, principalities as well as kingdoms, which more than often fought within themselves and quite often, were subject to influences of foreign powers 3. For instance, popes of Rome reigned in central Italy; adversary between the popes and the Holy Roman Emperors who asserted Italy as the principle domain more than often turned Italy into a battle front.
The commercial growth of northern and central Italian towns, in the wake of the 11th century, and the pressures of the renaissance alleviated somewhat the effects of these ancient political animosities. Even though Italy began to decline both economically and politically after the 16th century, the Renaissance reinforced the initiative of a distinct Italian people 4, 5.
Today, Italy is enjoying time tested multiparty democracy. More so, the regime respects the constitutional stipulations for a free and independent judiciary 6; however, the judiciary’s endeavor to bestow populace with just judicial procedures is convoluted by long assessment delays and the influences of prearranged crime on the CJS.
The present Italian code – Rocco code dates back to 1930 7.
1See Doyle and Haydock. 1991
2 Observed Olson, Walter K. in 1991
3 See Doyle and Haydock. 1991
4 Landsman, S. (1984).
5See Kagan A. 2001
6 See Kagan A. 2001
7 Essays on Adversary System 1993.” 1993. Valparaiso U L Review 27 (spring).
Like all approved European criminal codes from that period were as a result of Napoleon code of 1810 8. However, in regards to Italian case, it would be instrumental to assert that inquisitorial criminal system was enacted as a consequent of liberalism. The entire scope was devised when fascism was at its height in early 1942-43; the entire concept was basically severe 9.
Therefore it would be pivotal to posit that, before the state introduced and altered diverse core element pertaining to the entire criminal system, the Italian judiciary had the power as well as the influence to fight the organized crime which include prostitution, gambling as well as other allied cartels involving banking among other issues.
For instance, previously, under the inquisitorial system, death sentence was permitted however after the introduction of the 1889 controversial Zenardalli code, death or capital punishment was banned deeming the some aspects of criminal code powerless. This opened a floodgate of illegal activities throughout the country. It’s important to note that, diverse cases of total liability were introduced, while an increase of sanctions employed toward felonies against properties vehemently increased 10.
Exploring the various changes that have been enacted on the Italy’s inquisitorial criminal system, arguably, a number these changes are designed to make the system more compatible with diverse challenges arising out of criminal conducts. Hence, this promoted the introduction of law 220 in 1974; the concept behind this legislation was to create a possibility of passing conditions. Also the said legislation provided an environment where it became paramount to deal with issues on optional basis than being obligatory 11. Hence, such aspects as recidivism ceased being viewed as an aggravation element in the CJs and this heavily affected the criminal justice system more. It became one of the most preferred venues of defense by criminals.
Equally, such legislation as 317 of 1967, 706 of 1975 as well as the 689 of 1981 facilitated the discrimination procedures, which were formally concluded at the closing of 1999 12. From such observation it would be vital to assert that, this laws opened the door for such legal innovation, which helped to facilitate the Constitution Court decision under legal legislation 364 of 1988, under this law it became apparent that total liability is incompatible with the guiding aspect of the constitution. To counter this change another law was developed by the Constitutional Court. This became known as law No. 19 of 1990 13. In essence, this changes the manner by which aggravating conditions aided in admitting the like hood of indictment as a prerequisite for punishment.
Thus, such changes have profoundly aided in ushering other predominant changes in recent years.
8See Kagan A. 2001
9 The Adversary System: A Description and Defense: AIPPR ,1984.
10See Landsman, S. (1984).
11See Glendon, Carozza , Picker.
12 Doyle and Haydock.
13Notes by Edward B, The Inquisition (Sutton, 2004)
These changes are reflected under the current Italian criminal code. The most important part of these changes are linked to mafia type connection for which, due to inquisitorial criminal aspects were certain incriminating legislation introduced and this includes the criminal law 646 of 1982, equally, criminal conduct linked to civil or public governance is reflected under law 86 of 1990.
But the consequences of money laundering as a result of mafia conducts are defined under law 328 of 1993 as well as alterations of usury felonies are within law 108 of 1996. This infers that, along these diverse changes 14, have or are seen to be aiding in stopping almost diverse elements which contributes to formations of cartels of which in Italian case mafia becomes the most predominant criminal organization. Thus, under the current and harmonized inquisitorial criminal system, the Italian government has overtime developed the complementary registration, which has proved to be a profound source of criminalizing all acts of organized criminal conducts 15. It is apparent that over the years this legislation has helped in the manner the Italian government dealt with diverse mafia related cases, which in the past under the Rocco code were challengeable.
In essence, most legal scholars accept that the Italian criminal system as is today have positively affected the manner in which this system approaches organized crime. This can be attributed to such legislation pertaining to criminal laws, which prohibits any organized or secret deals 16. Under the Italian legislation and in particular criminal systems, the inquisitorial system unlike other criminal system such as accusatorial or adversarial, under the Italian criminal law 17 of 1982 legislative decree 58 of 1988 as well as taxation under law 516 of 1982. Therefore, it is instrumental to argue that the changes enacted within the inquisitorial criminal system in Italy provided a positive environment in which diverse provision were enacted to pave way for developing a stable and articulate legal foundation. Thus all incriminating element are highly catered to.
Principals of Italian law
The inquisitorial criminal system in Italy can be said to be one of the most substantive in the world in general, in particular, within EU. Thus comparing the Italian case with other judicial foundation within the EU it would be paramount to argue that the current criminal system, which was overhauled and approved in 1988 replaced the previous flawed inquisitorial system, which goes back to 1930 17.
Note that the previous code paid more emphasis on the inquisitorial elements of the Italian criminal code by providing great insistence to the aspects of pre-trial phase almost wholly prohibiting the participation of respondent counsel at this stages.
All in all, after the fascist regime was dissolved in early 1950’s the Italian government however brought new changes, hence reforming the entire criminal system. Basically this helped to fight mafia and other organized criminal groups 18.
14See Edward B, The Inquisition (Sutton, 2004)
15 Landsman, S. (1988).
16See Olson, Walter K. in 1991
18 Parker, Geoffrey (1982).
Looking at the former legislation, organized criminal groups had become a threat to both economic & political establishment in Italy 19.
The concept of amending the Italian criminal justice system which affected more than a hundred articles pertaining to the criminal system, paved a way by which these individuals indicted in criminal conducts or founded to be involved in secret or organized crimes chance to defend themselves.
More so, the Italian government through the constitution court made significant changes to the codes, which are enshrined under the nation’s inquisitorial criminal system. Therefore I am of the opinion that the changes enacted to the criminal system which is inquisitorial in nature helped to fight the mafia menace and equally provide the protection of civil rights during any given criminal proceedings instituted against an individual.
Therefore, this points to why the legislative changes, which began in the dawn of 1963 as well as in early 1970’s before the government approved the legislative changes in the criminal code, hence the adoption of the new criminal code. Though these changes were not fully adopted due to the escalating instance of terrorism and more so opened doors for protectionist criminal law system. From such observation the Italian government in regard to mafia and terrorism menace enacted proxy laws 81 of 1997 but the present Italian criminal procedure came to force in late 1989 20.
Comparing the current system with the old one it is arguable different. This can be witnessed by the fact that the current system moved from being inquisitorial system hence its foundation is based on the concepts of accusatorial pattern. This model though complex presented the Italian criminal system with a force to fight mafia including its allied organization within the Italian context 21. The advantages of this system gave the trial hearing a prominent role of acquiring evidence, hence elimination the instances of pre-trial investigative stage.
Unlike in the inquisitorial criminal system, the adversarial can be said to be formidable in dealing with mafia this can be linked to the fact that, in the former scenario the mafia or the ‘mob’ as they are typically known had identified diverse loopholes within the system and this helped them to circumvent the law 22, 23. Thus it would to paramount to point that in the inquisitorial criminal system, though diverse changes were adopted over the year, it’s only through the changes of system that the Italian government managed to deal the mafia effectively 24. Hence such aspect of inquisitorial system as pre-bargaining immediate, judgment proceedings by decree as well as alternative procedures were modified and strengthened with the principal scope of streamlining the total essence of Italian criminal justice system. In essence examining the whole concept of Italian criminal justice system, its paramount to inter that the Italian criminal mechanism have underwent detonate changes, which are reflected by the constitutional court 1992 deliberations 25.
19See Levenstein and Suslow 2006
20O’Keeffe & Bavasso, 2000
21 Ashurst Italy Report, Aug 31st 2004, 5-6
22 Landsman supra note 15
23 Landsman supra note 19
24 See William T.Walsh,
25 Emphasis added
EU and the criminal law due to the nature of European Union the concept of protectionism tends to compromise the broad concept of criminal law in regard to the diverse needs of EU member states 26. However the introduction as well as the formulation of EU competition law have aided in streamlining the broad concept of criminal conducts are enforced through cartels, hence this provided the room for the implementation of article 81 and 86 of EC law as well as Australian corporations act 2001 (cth) can be said that the EU have profoundly facilitated the implementation of criminal laws in both cases where adversarial inquisitorial or accusatorial criminal procedures are employed 27. Thus though the EU member states judicial systems are under dissimilar legal provisions, but the enforcement of EC competition law here aided in controlling almost all scopes of criminal activities 28, 29, 30.
Criminal law and court procedures
Exploring the Australian criminal law and the Islamic criminal law system, it’s apparent to note that Islamic crime law as well as court procedures are much more dissimilar with Australian criminal system 31, 32. This can be attributed to the fact that Australian system is more conventional and does not dwell on the scope of religion as is with Islamic system. Thus examining some of common aspects of law it is apparent that Islamic law is more religious its jurisdiction is typically dominated by religion concept while as Australian system is defined and enforced through statues and legislation 33, 34. Thus such differences inters that in Islamic law, courts as well as other government areas are theoretically tied to the sharia 35,36. Incase of criminal proceedings under the sharia law the defendant is commonly pitted against the established Islamic tenets, which prohibits any acts of crime. Thus unlike in conventional criminal procedures the Australian criminal justice have much more impact and influence the Islamic court 37.
26 See Wurmnest, 2005
27 See emphasis by Buxbaum, H.L, 2005
28 E C, note 37, option 8, 9
29 Alberto J. Gil Ibanez, Enforcing EC Law: EC Treaty Articles 226 and 228,
30 Notes Article 3(6) of the Regulation
31 See Edward Peters, Inquisition. (1989)
32 Emphasis added
33 Emphasis added
34 Emphasis added
35 Emphasis added
36 Emphasis added
37 Emphasis added