After a brief analysis of the scope of Directive 2012/13/EU, this paper addresses its impact on the Italian system in order to examine the effectiveness and adequacy of the guarantees provided for the accused by Italian procedural law compared to EU legislation and Strasbourg case law. The study reveals the difficulties of the Italian procedural system, which despite its accusatorial approach is still searching for an effective balance between investigative needs and rights of the suspect.

Keywords

Completeness of the investigationRight of defenseRight to information

Abbreviations

CCP-Italy

Italian Code of Criminal Procedure

Const.-Italy

Italian Constitution

CP-Italy

Italian Penal Code

D.l.

Decree-Law

D.lgs.

Legislative Decree

ECHR

European Convention on Human Rights

ECtHR

European Court of Human rights

EU FRCh

Charter of Fundamental Rights of the European Union

ICCPR

International Covenant on Civil and Political Rights

OJEU

Official Journal of the European Union

1 Introduction

The Directive 2012/13/EU¹ on the right to information in criminal proceedings is measure B of the Roadmap² adopted by the Council on 30 November 2009, aimed at strengthening the rights of suspects and defendants.

The provision of common minimum standards in the field has been advocated³ by all the European institutions, especially the Commission, which, in fact, highlighted that

It is not always the case that suspects, and even sometimes the law enforcement officers questioning them, have full knowledge of the relevant rights. If suspects were properly aware of their rights on arrest there would be fewer allegations of miscarriage of justice and violations of the ECHR. […] A simple and inexpensive way to ensure an adequate level of knowledge is to require Member States to produce a short, standard written statement of basic rights: the Letter of Rights.

In light of this, there was first published a Green Paper on the “Procedural safeguards for suspects and defendants in criminal proceedings throughout the European Union,”⁴ and the adoption of a Framework Decision was later proposed,⁵ which would require all Member States to prepare a Letter of Rights for the suspect, containing a statement of fundamental rights. Despite the interest expressed in this initiative, the text was not approved because of disagreement within the Council. In fact, the laws of the Member States differ from each other, not only on “whether” to recognize those rights but also on “how” to grant such guarantees to the suspect or accused.⁶

However, this setback has not led to a state of definitive paralysis: the protection of the defense rights in criminal proceedings has found new life in the conclusions of the Stockholm Programme.⁷ Precisely within this program, the Commission’s initiative became concrete, with the issue of the Directive in question, whose deadline for transposition was set for 2 June 2014.

2 The Three Aspects of the Right to Information in Directive 2012/13/EU

In order to properly examine the impact of Directive 2012/13/EU on the Italian system, we need to start by looking at the right to information as outlined in this Directive, emphasizing above all the intrinsic connection with the system of guarantees provided both by the EU FRCH and the ECHR.⁸ Pursuant to recital no. 14, the Directive is based on Articles 6, 47, and 48 EU FRCh, as well as on Articles 5 and 6 ECHR as interpreted by the European Court of Human Rights. This is confirmed in the nonregression clause established in Article 10:

Common minimum rules should lead to increased confidence in the criminal justice systems of all Member States, which, in turn, should lead to more efficient judicial cooperation in a climate of mutual trust. Such common minimum rules should be established in the field of information in criminal proceedings.

Regarding the scope of application, the references in Article 2 to the person under investigation and to the proceedings shows that the European legislature is concerned with the most sensitive aspect of the right to information, that concerning the pretrial phase.⁹

The right to information is then given three different meanings: the right to information on rights, the right to information on the accusation and the right to access materials of the case.

2.1 The Letter of Rights

As regards the first aspect, Article 3 states that

Member States shall ensure that suspects or accused persons are provided promptly with information concerning at least the following procedural rights, as they apply under national law, in order to allow for those rights to be exercised effectively:

(a)

the right of access to a lawyer;

(b)

any entitlement to free legal advice and the conditions for obtaining such advice;

(c)

the right to be informed of the accusation, in accordance with article 6;

(d)

the right to interpretation and translation;

(e)

the right to remain silent.

The provision, although it recognizes a core of rights open to subsequent supplementation, as evidenced by the phrase “at least,” lends itself to two criticisms. Foremost, the use of the adverb “promptly” could cause differences regarding the timing of providing information, such as to suggest the provision of a mandatory term. In this regard, an important indication comes from recital no. 19, which sets the first formal interview as the deadline for providing such information. A further obstacle to the effectiveness of such rights may come from the reserve of national law: it is clear that by granting the right to information on rights in the manner and within the time limits of domestic law, the impact of harmonization would be greatly weakened.

Having made this premise, we need to dwell on the extent of the rights granted to suspects and accused persons. Among these, the first to be raised is the right of access to a lawyer. The indispensability of qualified defense in a criminal trial has been repeatedly reaffirmed by the European Court of Human Rights,¹⁰ which deems it necessary for the suspect to be given the possibility to defend himself and to benefit from technical assistance. For example, the Court has stated that

a person charged with a criminal offence who does not wish to defend himself in person must be able to have a recourse to legal assistance of his own choosing; if he does not have sufficient means to pay for such assistance, he is entitled under the Convention to be given it free when the interests of justice so require.¹¹

The guarantee of technical assistance has recently been codified in Directive 2013/48/EU,¹² whose scope, in following that of Directive 2012/13/EU, ranges from the time that one is informed he is under investigation until the conclusion of the proceedings, including, if applicable, sentencing and any appeals. Member States ensure access to defense counsel as soon as possible and in any event prior to the start of any questioning, when procedural actions are performed relating to the collection of evidence, which require the presence of the suspect or accused person, and in any case as soon as the suspect is deprived of his liberty. Any departures from these rules may be justified only if they are supported by the need to avert serious adverse consequences for the life or physical integrity of a person, may not be based on the type or severity of the offense, must not go beyond what is necessary, should be limited as far as possible in time, and, finally, must not affect the fairness of the proceedings.

If the suspect or the accused person has made any self-incriminating statements without being guaranteed the right of access to counsel, the Directive, in line with the consistent case law of the Strasbourg Court,¹³ lays down that such statements are unusable. Without prejudice to the provisions of domestic law, it is of particular importance that the suspect or accused may waive the assistance of counsel, provided that he has received prior legal advice on the consequences of such a waiver and that this is clear and unambiguous.

The protection of foreign-language speakers is provided under Directive 2010/64/EU,¹⁴ with which the European legislature implemented measure A of the Roadmap.

This minimum core is supplemented by the additional guarantees provided for under Art. 4(2) if the person is subject to arrest or detention within the meaning of Framework Decision 2002/584/JHA. The distinguishing feature of this provision is the way it enables the lawfulness of an arrest to be challenged, a detention order to be reviewed or an application for bail to be made.

2.2 The Right to Information About the Accusation

Regarding the second aspect, article 6 establishes the right to information about the accusation, a term that, as specified in recital no. 14, is used to describe the same concept expressed in Article 6(1) ECHR. Member States must ensure that suspects or accused persons are provided with all the information about the nature and legal classification of the offense that they are suspected or accused of having committed. These guarantees must be ready no later than the time when the merits of the charge are submitted for examination by the judicial authorities, in order to ensure fair proceedings and the effective exercise of defense rights.

If, in the course of the investigation, there occur changes in the terms of the accusation such as to substantially affect the position of the suspects or accused persons, this must be communicated in due course.¹⁵ This specification reflects the most recent Strasbourg case law, whereby

any differences in the legal classification of the offence, if not the subject of an adversarial procedure, constitutes a violation of Article 6(3)(a) of the Convention.¹⁶

As noted with reference to the Letter of Rights, the failure to establish a deadline by which to provide information about the accusation means the risk of an illusory protection, a risk even more exacerbated, in this context, by the suspect’s inability to exercise a defensive strategy that actually affects the decisions of the prosecution. In fact, only by having a reasonable time could the suspect and his lawyer have access to the file, submit documents, carry out defense investigations, and offer a different reconstruction of the alleged facts. As clarified by the European Court:

the right to an adversarial process, as required by Article 6 of the Convention, means that both the prosecution and the defence must be given the opportunity to have knowledge of and comment on the observations made and evidence presented by the other.¹⁷

In this perspective, the wording of Article 6 of the Directive could undermine the primary objective of the harmonizing provision, namely to ensure the fairness of the proceedings.

2.3 The Right of Access to the Materials of the Case

Finally, as regards the right of access to the materials of the case, this extends to all the evidence in the possession of the competent authorities, both that supporting innocence and that supporting guilt.¹⁸ For the purposes of the effective exercise of the right to defense, this must be granted in due time, at the latest when the merits of the accusation are submitted to the judgement of a court.

Denials or restrictions on the exhibition of a document must be duly justified and weighed in relation to the rights of defense of the suspected or accused person, taking into account the various stages of criminal proceedings. Article 7(4) provides that access may be refused if this

may lead to a serious threat to the life or the fundamental rights of another person or if such refusal is strictly necessary to safeguard an important public interest, such as in cases where access could prejudice an ongoing investigation or seriously harm the national security of the Member State in which the criminal proceedings are instituted.

Against a decision to deny the right of access, Article 7 expressly provides that Member States should grant remedies under domestic law. However, the efficiency and effectiveness of such a provision should be reconsidered in the light of recital no. 36, under which such a right does not entail the obligation to provide for a specific or separate appeal procedure or mechanism with which to challenge a failure or refusal to allow access. Beyond the limits established by recital no. 36, the provisions governing access are sketchy even where they do not provide any remedy in the event of inaction by the competent authority.

3 The Right to Information and Defense Guarantees: The System of Italian Procedural Law and the Possible Impact of the EU Directive

The obligation to transpose the Directive at the national level now leads us to question the status of national legislation and to suggest interpretative approaches that can ensure conformation with European Union law without undermining the roots of the procedural system. The analysis then follows the lines of the tripartite division of the right to information resulting from the Directive, namely the right to information about rights, the right to information about the accusation, and finally the right to access the evidence, also acknowledging the changes contained in the draft legislative decree implementing the Directive currently under examination.¹⁹ Through this scheme, which consists of four articles, the Government aims to amend some provisions of the Code of Criminal Procedure and Law 69/2005, concerning the implementation of the Framework Decision on the EAW (2002/584/JHA), without envisaging express or implied repeals. To summarize the scope of the new directive, it can be said that the national legislature has tried to guarantee the right to information in three ways, respectively, relative to the preliminary investigation, to interim measures, and to arrest and holding for questioning.

3.1 Information About Rights (with Specific Reference to the Right of Defense)

Starting with the letter of rights, Italian procedural regulations are such that they cannot fully conform with what is required by the recent supranational regulation.

In Italy, the main regulatory reference is contained in Article 369-bis of CCP-Italy, introduced by Law 60/2001. Entitled “Informing the person subject to investigation on the right to defence,” this provision is intended to ensure the accused—starting with the completion of the first procedural action that the defense counsel is entitled to attend and, in any case, before the request to appear for questioning—information on the compulsory assistance by professional counsel in a criminal trial, the name of the court-appointed counsel and the obligation of his remuneration, the right to appoint his own defense lawyer, and the warning that failure to appoint his own counsel will lead to him being assisted by counsel appointed by the court, as well as on the conditions that may entitle him to legal aid. The rule is based on the assumption, which is a core principle of Italian law, of the essential need for a professional defense, based on the premise that (only) qualified counsel is able to engage in effective debate with the public prosecutor and other parties to the proceedings.²⁰

Article 369-bis of CCP-Italy does not however envisage the right to translation and interpretation or the right to silence.²¹

On the first point, the protection of foreign-language speakers is provided for by the rules on the translation of documents, and in particular Article 143 CCP-Italy, in conjunction with Article 111(3) Const.-Italy. Although the Supreme Court had initially supported a more rigid and literal interpretation than that proposed by the Constitutional Court,²² the principle whereby the suspect’s participation in the proceedings should be effective and not purely random has now been well established.²³ This, on the other hand, does not oblige authorities to make copies of every kind of document but rather the need to identify those documents that specifically raise issues crucial to the defense and that as such must be translated.²⁴ The scope of application thus depends on a functional and not merely formal criterion, so that, as stated by the Supreme Court, the failure to provide translation could result in the invalidity of a judgment only where ignorance of the language prevents the full exercise of the right of defense.

The choice of a functional criterion is in line with the ECtHR, according to which

Article 6(3(e) does not go so far as to require a written translation of all items of written evidence or official documents in the procedure. The assistance should be such as to enable the defendant to have knowledge of the case against him and to defend himself, notably being able to put before the court his version of the events.²⁵

Precisely regarding the provision of Article 143 CCP-Italy,²⁶ Legislative Decree 32/2014 has implemented²⁷ the Directive, thus significantly reformulating it. In fact, from the very first paragraph, we may discern the legislature’s attempt to implement the “linguistic guarantee” in function of the effective exercise of the right of defense, as can be seen in particular from the interpolation whereby an accused person who does not know the Italian language has

also the right to free assistance from an interpreter to communicate with his counsel before being questioned, or in order to submit a request or written statement in the course of the proceedings.

Again, the same goal is pursued in the second paragraph, which, in adherence to the principle that the translation is required of all those documents that may affect the position of the accused, provides for the written translation, within a period such as to enable the exercise of rights and the right to defense, of documents regarding information on civil rights and defense rights, of precautionary measures, of the notice of the conclusion of the preliminary investigation, of court orders that establish dates for the preliminary hearing, of committal documents, and of documents regarding conviction and sentencing.

The breakdown of this list is not to be considered exhaustive, since the third paragraph acknowledges the right time regarding both the initiative of a party and the order of the court to grant free translation of other documents or even solely of parts of them, considered essential for enabling the defendant to know the charges against him. The acknowledgment of this possibility moreover seems to be confirmed by the fact that refusal to do so can be appealed against, together with the judgment.

Directly related to the reform of Article 143 CCP-Italy is also the introduction in Article 104 CCP-Italy²⁸ of an additional paragraph, 4-bis, which establishes that

A defendant in custody, a person arrested or held for questioning, who does not speak Italian, has the right to the free assistance of an interpreter in order to confer with his lawyer in accordance with the preceding paragraphs.

Critically, however, we may see that the urgent nature of these procedural situations makes the problem of ascertaining the lack of knowledge of Italian by the person deprived of personal freedom particularly complex. The new regulation does not specify, in fact, whether the notion of “lack of knowledge,” for the purpose of acknowledging the right to a translator or interpreter, should also include a level of knowledge sufficient to allow the defendant to follow the proceedings or understand, but not the ability to express himself except for with great difficulty.²⁹

As to the right to remain silent,³⁰ there is no doubt that the principle of not being obliged to incriminate oneself comes into play from the investigation stage onwards. Significantly, Article 64 CCP-Italy in outlining the basic rules of questioning,³¹ provides that the accused person should be expressly warned of his right not to answer any questions; otherwise, any statements he makes may be considered unusable.

However, precisely in terms of chronology, the reference in Article 369-bis of CCP-Italy to the “completion of the first procedural action which the defence counsel has the right to attend” poses delicate problems in terms of balancing conflicting interests. From the wording of the provision, it clearly emerges that the requirements of confidentiality give way to the benefit of information to the suspect, to an “assisted act,” and therefore to a discretionary choice of the prosecution. Thus, it could well happen that the public prosecutor does not intend to complete the procedure and that the subject learns he has been under investigation only at the conclusion of the investigation. As we shall see, the notice of conclusion of the investigation, a link between the investigation phase and that of judgment, contains not only a summary of the laws that have allegedly been broken but also notice of submission of the relative documentation and of the right to examine it, as well as specifying the right within 20 days to submit documents and memoranda and ask to be interviewed. And, regarding the relationship between the two institutions, the case law of the Court of Cassation has clarified that information on defense rights must necessarily precede, under penalty of nullity, the notice of completion of investigations where, during the investigation, no activity which the lawyer should have attended has been carried out.³²

That said, it is questionable whether the Directive is able to prevent such an eventuality and ensure information during the investigation phase such as to allow the suspect to prepare an adequate defense in view of the contributions that he can make in the final phase of the investigation. In this sense, as noted above, the scope of Article 3 is rather vague, since, by merely requiring that the communication must be provided promptly, it does not establish a deadline, leaving this to be decided by domestic legislation. The failure to provide a term establishing the adoption of a so-called concept of relation reflects the desire to balance the various values involved in the proceedings. Even the European legislature, although viewing defense guarantees as unalienable, prefers “flexible” information requirements, modulated according to the various stages of the proceedings and specificities of each case.

From the point of view of implementation, we can see that the draft Legislative Decree aims to affect the guarantee provided for under Art. 369-bis(1)(c) in two respects: with regard to the timing of information, establishing the sending of the notice of the conclusion of the preliminary investigation as the deadline for informing the suspect, and in terms of content, implementing the wording of paragraph d-bis of the provision on informing the accused person of his right to an interpreter and to the translation of fundamental documents.

Along the same lines are the amendments made to Article 386 CCP-Italy,³³ which establishes that the police officers who performed the arrest or detention or had the arrested person delivered into their custody must submit to the arrested or detained person, under penalty of the nullity of subsequent procedural actions, a written communication prepared in a clear and precise form (and for a person who does not speak Italian, this also involves translating it into a language he understands), informing him of all his rights.³⁴

Still, there was felt the need to bring the implementing law in line with Framework Decision 2002/584/JHA on the European arrest warrant and the rendition procedures between Member States while also envisaging as part of this the delivery of a written notice, in a clear and precise form, informing the subject of the ad hoc guarantees provided under Article 12.³⁵

3.2 Information About the Accusation

3.2.1 Foreword: Information on the Accusation and Protection of Procedural Needs

As far as regards information on the accusation, on a methodological level, the transposition of Directive 2012/13/EU is an important opportunity to examine the effectiveness and adequacy of the guarantees provided for the suspect and the accused person by Italian procedural law, compared to EU legislation and Strasbourg case law.

In terms of domestic law, the declaration of the right of defense as “inviolable at every stage and level of the proceedings” in Article 24(2) Const.-Italy is counterbalanced by a codified system that betrays to a large extent its merely civil rights scope. With specific regard to the information in question, however, the constitutional reform of 1999 included in Article 111(3) Const.-Italy a provision that grants all individuals charged with a criminal offense the statutory right to be notified promptly and confidentially of the nature and cause of the charges made against them.

A strictly literal interpretation of the situation resulting from such constitutional provisions might lead us to believe that the suspect must be informed immediately of any investigation against him, in order that he may exercise promptly and at the same time as the investigating body the power to search for and collect evidence. Such a reading appears to be almost obligatory if we are to give a complete meaning, in particular, to the provision contained in Article 111(3). On close examination, we can see that it is bound to protect also the suspect during the investigation prior to the beginning of a trial: on one hand, the person accused is usually informed of the indictment once committal proceedings have begun, while, on the other hand, the requirement of confidentiality arises routinely in the investigation phase but not in the trial.³⁶ However, this interpretation does not take into adequate account the origin of such a provision, inserted in the Constitution in order to give recognition and constitutional value to a fundamental guarantee contained in the ECHR. It may be useful to point out that, of all the guarantees acknowledged to the person “charged with a criminal offence” in Article 6(3) ECHR, the one in question imposes a burden of detail in terms of the information, extending to the nature of and reasons for the charge, which seems to presuppose the formulation of a formal accusation at a more advanced stage of the proceedings.³⁷

On the other hand a model obliging the investigative bodies to inform the suspect only if they establish a precise investigative line, albeit strictly adhering to the charge,³⁸ does not take into account the antagonistic forces inherent in criminal proceedings.³⁹ Completeness and authenticity of the investigation, on one hand, and defense prerogatives, on the other, dictate that the process involves a negotiated solution. ⁴⁰

As highlighted by the Constitutional Court⁴¹:

the principle of the equality of arms does not necessarily imply identity between the procedural powers of the public prosecutor and the accused. In fact, a difference in treatment may be justified, within reason, by the peculiar institutional position of the prosecutor, by his function, and by requirements related to the proper administration of justice.

Thus, the investigative requirement of confidentiality will prevail over the right to defense to the point that it suppresses it,⁴² whenever the needs of the investigation become dominant. However, precisely the principle of reasonableness requires extension of the right to defense whenever there is an action that will affect the trial stage. The strength of the system thus depends on a diachronic reconstruction of the process, where the individual positions can only be appreciated in terms of the whole.

Precisely in this regard, it is interesting to note the contribution of Strasbourg case law to the abandonment of excessive formalism. In particular, it was responsible for establishing the autonomous notion of accused person,⁴³ whereby what is important is not the making of the charge but any “official notification given to an individual by the competent authority of an allegation that he has committed a criminal offence.”⁴⁴

This can also take place at a time prior to the submission of a formal accusation to the judicial authority: relief measures such as the confirmation of a seizure, a request to come in for questioning, or a request for authorization to proceed thus become significant. It is not necessary for the indictment to be precise and definitive but rather that the document produced or to be produced is in practice such as to possibly affect the position of the subject on the basis of a charge related to a crime.⁴⁵ The presumption of innocence also leads to this conclusion, as acknowledged in Italy by Article 27(2) Const.-Italy. There is no doubt that its scope can be appreciated not only in the decision-making moment but also in research activity and the gathering of evidence. Therefore, the defendant must have the opportunity to actively contribute to the reconstruction of the fact with similar powers to those of the prosecution.⁴⁶ Nor can this reconstruction be denied by the fact that information should be given “as soon as possible.” Also in this case, it is necessary to see the legislation in terms of the dynamics of the proceedings, so that information need not be given immediately, but compatibly with the need for investigative effectiveness.⁴⁷

Ultimately, it can be concluded that the right to information on the charge should be understood not as an inflexible right anchored to a specific stage of the proceedings but rather as a form of protection whose degree of detail varies according to the phase of the investigation and the degree to which the action from time to time in question affects the individual rights of the person subject to criminal proceedings. That said, it must be ascertained whether and to what extent procedural legislation allows such information and in what terms the Directive in question may have an effect. In this regard, domestic legislation proves to be strongly lacking in at least three respects, due to the following factors: (a) the absence of tools aimed at ensuring adequate knowledge of the charge at the preliminary stage, (b) the existence of presumptions that hinder the effective provision of information, (c) the establishment of mechanisms for indirect knowledge of the charge.

3.2.2 Criminal Proceedings and Information Tools Used by the Prosecution

Preliminary Inquiries and Tools for Providing Information on the Charge

The inadequacy of the instruments aimed at allowing the provision of information on the accusation can be seen right from the preliminary investigation stage.

In fact, the Code of Criminal Procedure provides for the possibility of access to the register in which the state prosecutor immediately records every crime report he receives or has acquired of his own initiative and, at the same time or by the time the information is viewable, records the name of the person to whom the crime is attributed (Art. 335 CCP-Italy). This right, however, in addition to being dependent on the impulse of the person who suspects he is being investigated,⁴⁸ brings somewhat uncertain results.⁴⁹ Indeed, not only is there the risk that the person will apply to an office other than the one that may have started investigations but also that his request remains unanswered. As to the first possibility, applying to the wrong public prosecutor’s office is not remedied by automatic transmission of the request to the competent office, a failing that seems somewhat anachronistic. In terms of the latter aspect, the regulation does not provide for any period within which a reply must be given, nor can the 15-day period provided for under Article 121(2) CCP-Italy be deemed to apply.

In addition to these limitations, Article 335 CCP-Italy shows a number of exceptions to disclosure to the interested party of any investigations regarding him. It is thus, mainly, possible that the prosecutor may deny access to the register by making the investigations subject to official confidentiality, due to “needs pertinent to the investigation,” a purely formalistic reasoning that makes the limitation of the suspect’s rights even more obvious. Even more problematic is the situation in which the registration relates to an offense under Article 407(2)(a) CPP-Italy, for which the possibility of communication is ruled out a priori on the basis of the absolute presumption that informing suspects in such cases always puts the needs of the investigation in jeopardy. Moreover, the list of these crimes over the years has been applied extensively,⁵⁰ since it covers various offenses not so much based on the same legal concept but resulting from the same sense of emergency characterizing recent legislation. A particularly sensitive issue occurs when the request for access is made by a person subjected to investigation for a series of crimes, only for some of which the above prohibition on communication applies, or by a subject accused of a common crime in the context of a procedure in which others happen to be investigated for acts of organized crime.⁵¹

Finally, one of the most significant problems posed by this provision concerns the absence of any check on the timing of registration, a significant issue given that this is the moment from which the time limit for conclusion of the investigation runs. By leaving the task of registering the crime to the investigating body, there is the risk that this monopoly may become abuse: the prosecutor, violating his duty of fairness and procedural correctness, may temporarily register the notice of crime in the so-called modello 45, a form used to record events that do not constitute criminal offenses, then conduct the investigation and only in the final phase transfer the registration to the so-called modello 21, the form used to record actual crime reports, with the result that the time limit for completion of the investigation will only start to run from that moment.⁵²

The injury resulting from any procrastinations sine die is exacerbated by the reluctance of the case law of the Court of Cassation, which, in a now consolidated approach, has argued that

the failure to register does not determine the unusability of the investigative actions performed, since the time limit for completion of the investigation has yet to start running […] the appreciation of the timeliness of registration in fact falls within the exclusive discretion of the prosecutor and is exempt from review by the court.⁵³

The ruling out of any penalty has not affected the positions of the Constitutional Court that, despite the issues of legitimacy raised in Article 335 CCP-Italy, which fails to provide the possibility of backdating the time from which the effects of registration run, in cases of undue delay or omission, has always ruled that such requests are inadmissible “due to the ambiguity of the claim.”⁵⁴

However, while in the absence of an ad hoc sanction, one feels bound to disagree—especially because of the emphasis given to the aspect of timing the supply of information in Directive 2012/13/EU—with the rulings of the Supreme Court and the Constitutional Court. Furthermore, it is possible to show how the negative implications of late registration will have repercussions not only on the effectiveness of the right of defense but also on the principle of reasonable duration of the proceedings.

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Influence of the Directive 2012/13/EU on the Italian System of Protection of the Right to Information in Criminal Procedures

The Influence of the Directive 2012/13/EU on the Italian System of Protection of the Right to Information in Criminal Procedures