One of the landmark attempts to introduce plea bargaining in Italy occurred in October 1988 when the Italian Parliament adopted a proposal for a new Code of Criminal Procedure (Codice di procedura penale) (Ogg, 2012: 232). As the Code came into force in 1989, many scholars saw it as an ambitious attempt towards the introduction of some adversarial elements based on Anglo-American model into a system that was traditionally guided by civil law principles (Montagna, 2004: 430). The main trigger for this reform was the level of inefficiency and backlog in the Italian criminal justice system, to the extent that, on a number of occasions the Parliament felt compelled “to grant amnesty to whole classes of defendants, in the vain hope that its action would provide the overburdened system with a fresh start” (Pizzi and Marafioti, 1992: 6). Other factors that the 1988 reform attempted to address include the need to divest the excessive powers of the judges, and shift some of these powers to the public prosecutor ‘Pubblico ministero’ (Pizzi and Montagna, 2004: 431).
On the International political arena, there was also the enormous pressure by institutions such as the European Court of Human Rights, Amnesty International and others, who insistently called on the Italian state to review its laws in order to deal with the notorious level of inefficiency (Pizzi and Montagna, 2004: 438; Ogg, 2012: 232). Out of this pressure for reform, which includes summary procedure in form of plea bargaining. At first, the reforms faced resistance from judges resulting in a large number of appeals reaching the constitutional court, especially in the early years of the introduction of the Code (Illuminati, 2005: 572-576). Illuminati further notes “(f)ar more constitutional claims came before the Constitutional Court in the first years after the reform than were ever referred to the Court during the preceding four decades under the provisions of the Code of 1930” (ibid: 574).
The disapproval of this system was mainly centred on the argument that it infringed Article 112 of the Italian Constitution, which provides for the legality principle.41 This led to the courts giving series of broad interpretations of the exceptions to the new adversarial rules, especially regarding evidence (Ogg, 2012: 240). As a result, judges continued going back to the old method of introducing evidence at trial and re-launching “a system that began to look more and more inquisitorial and less adversarial” (Pizzi and Montagna, 2004: 430). Evidence also suggests that because Italian prosecutors are mainly educated and trained in a civil law system, they also continued to view this transplant as a departure from acceptable norms (Boari and Fiorentina, 2001: 219).
The Italian Parliament was forced to intervene and amend the constitution in 1999, abolishing many of the exceptions created by the courts (Illuminati, 2005: 576). Again, the Parliament was called upon in 2001 to intervene owing to the continuous resistance of the Constitutional Court to adapt to the new reforms contain in the Code.42 Taking a bold stance, the Parliament stated the “Constitutional Court's systematic misinterpretation of the Constitution” has necessitated the Parliament to adopt plea bargaining as a recognised method of criminal procedure (Semukhina and Reynolds, 2009: 408).
41 Costituzione della Repubblica italiana. 42
The Italian model of plea bargaining is based on the adoption of two forms of abbreviated procedures categorised as ‘party agreed sentence’ (Pettegiamento dula pena)43 and ‘summary trial’ (Ma, 2002: 390). In a party agreed sentence, the prosecution and the defence enter into an agreement as to the extent of a sentence, in which case the sentence should not exceed two years, even if the original sentence for the offence is above two years (Maffei, 2004: 1061). It also allows the defence to negotiate up to a one-third reduction in sentence (ibid).44
Another distinctive feature of the Italian model is the permission given to the accused to make a direct request for a bargained settlement either at the preliminary hearing or during the trial (Boari and Fiorentina, 2001: 216).45 Where this happens, the prosecution is then authorised to accept or reject such request. But the Code went further to put a burden upon the prosecution when he or she rejects the defendants offer, they are required to state clearly the reasons for such refusal, which the judge is empowered to overrule and go ahead to impose a sentence as requested by the defendant (Miller, 1989: 230).46 To protect the prosecution from a situation where the judge and the defendant might be conspiring to avoid due process, the Code went further to grant the prosecution the right to appeal such a decision if the judge overrides the prosecution. 47 But where there are no such situations, parties are barred from appealing convictions unless if the prosecution has modified the nature of the original charge or charges.48
The Italian model also demands that where the request for negotiated settlement comes only during the trial, then any pronouncement by the judge should be made at the close of such trial.49 Furthermore, the law requires the judge to ascertain the voluntariness of the plea and to ensure that the sentence agreed between the parties is proportionate to the gravity of the offence and the circumstances of the case as contained in the prosecutors file
43 Sometime referred to as “bargaining as to the punishment”, it is a procedure closest to plea bargaining in common law regimes. See, e.g. Newcombe, K. (2007). Russia. In C. M. Bradley (Ed.), Criminal procedure. A worldwide study. Durham, NC: Carolina Academic Press.
44 C.P.P. art. 444. 45 ibid, art. 446(l). 46 ibid, art. 448(1). 47 ibid. art. 448(2). 48 ibid, 443. 49 ibid, art. 448(1).
(Miller, 1989: 231).50 This power to review cases or even overrule the prosecution has prompted some scholars to contend that the Italian system of plea bargaining has placed unhelpful restriction on the powers of the public prosecutor (Maffei, 2004: 1061).
Another important distinction between the Italian model and other models is the degree of limitation imposed by the Code. In the sense that a party agreed sentence is only applicable to minor categories of offences involving pecuniary fines or where, in light of the circumstances of the offense and the offender, the statutory sentence reduction of up to one-third, does not exceed two years imprisonment (Gifford, 1983: 80).51
The ‘abbreviated or summary procedure’, on the other hand, can only be initiated by the defence, who puts a request to the court for a quick disposal of his case. Although some may argue that this type of summary trial does not qualify as plea bargaining, its procedural character places it within the definition of plea bargaining, because it is not only followed by mandatory sentence discount at the preliminary stage of the matter, 52 it is also described under the Code to constitute practices that are akin to most types of plea bargaining. Article 439 of the Code states that to initiate a summary procedure; the prosecution should present the defendant’s request to the court, at least, five days prior to the preliminary hearing. The judge is then at liberty to accept to reject such request, at least, three days before the hearing.53 This, however, does not deter presenting the same request again during a hearing54 in which case the judge’s decision on whether to accept or reject is to be made instantaneously.55 Similar to the rules in the party agreed sentence is that where the prosecutor refuses to consent, the defendant can directly ask the judge for such a reduction in sentence and the judge may overrule the prosecutor (Ma, 2002:41).
Critics, however, argue that by making prosecutorial consent a prerequisite,56 the prosecutors power have been expanded, and made the defence vulnerable (Miller, 1989: 50 ibid, art. 444(2). 51 ibid, art. 444(1). 52 ibid, art. 442. 53 ibid, art. 440(1). 54 ibid, art. 440(3). 55 ibid, art. 440(1). 56ibid, art. 438.
228). Another situation that further puts the defence under pressure is the general structure of the Italian penal system, in which judges and prosecutors have closer occupational relationship than in common law jurisdictions, which makes it often unlikely for the judges to overrule the prosecutor for the sake of the defendant’s interest (Boari and Fiorentina, 2001: 211).
Evidence also shows that most plea bargains in Italy involve lower courts, i.e., the Pretura,57 whose jurisdictions are limited to offences attracting four years of prison term or pecuniary fines (ibid). Because of this limitation in jurisdiction, the development of plea bargaining in Italy has been slow, that in the first five years since the introduction of the new Code, only about 8 per cent of all cases were disposed through negotiations (ibid: 213). Hence, two decades on, the Italian criminal justice system still struggles with overly protracted cases (Ogg, 2012: 229). Part of the reasons for this slow success according to Boari and Fiorentina is the limit placed on sentence reduction, which made plea bargaining particularly unattractive to many defendants (2001: 214). Aware of the flawed character of trials notorious for their delay, loss of evidence and the frequent absence of witnesses, most defendants, especially those on bail tactically exploit these flaws instead of accepting guilt (Pizzi and Marafioti, 1992:6; Boari and Fiorentini, 2001: 217). What plea bargaining achieved, however, was the alteration of the dynamics of court processes, especially for minor offences by ensuring the opportunity to negotiate. Furthermore, Miller argues, “by permitting the parties to decide on the merits of the case as well as on the sentence, the procedure validates the role of the competing parties” (ibid: 230). Yet, there are aspects of the Italian model that touches on some of the principles of criminal justice, particularly the rule that bars parties from appealing unless the prosecution has modified the original charges.