Within the European area of justice, Directive 2013/48/EU aims to establish common minimum standards on the right of access to a lawyer for suspects and defendants in criminal proceedings throughout the European Union. In this paper, we analyse the possibility of extending the guarantees provided for by Italian criminal procedural law in relation to an emblematic activity, the questioning of a person subjected to preventive custody. Many issues remain unresolved, and there seem to be numerous shortcomings in the text of the new Directive, especially if we are to ensure the practicality and effectiveness of the protection it envisages.

Keywords

Formal interview under cautionRight of defence due processSuspect/defendant in vinculis

1 Foreword

Speaking of the effects on the Italian criminal justice system of the EU Directive adopted on 22 October 2013,¹ concerning the right of access to a lawyer,² means addressing very wide issues, which lend themselves to various interpretations. This paper analyses the effects of the provisions of this supranational precautionary instrument system, focusing on the interview of the person subject to preventive measures.

This topic of analysis is justified by the fact that within this procedure, there typically coexist, on one side, typically evidence-gathering functions and, on the other, functions of defence, monitoring, and civil rights guarantees. This examination is also useful in consideration of the scope of the recent Directive, extended to proceedings de libertate, even if they are aimed at handing over the accused by means of the EAW.

2 Brief Notes on the Relationship Between EU and Domestic Law

For a correct understanding of the issues, we must consider the relationship between EU law and national law. When Italy joined the European Union, it accepted and committed itself to the simultaneous application within its own legal system of both domestic and European laws.³

With regard to primary sources, Italy has taken steps to introduce the order of execution of each Treaty into the same law with which it authorised their ratification.⁴ The validity of the treaties was initially justified by the Italian Constitutional Court in the reference to Article 11-Const Italy, which legitimates limitations of sovereignty without the need to provide for a constitutional amendment.⁵ Today, following the amendment of Title V of Const.-Italy,⁶ the Italian Constitution contains an explicit reference to the EU legal system in Article 117.⁷

As far as regards the adaptation⁸ of the Italian system to secondary sources,⁹ this takes place through the adoption by the State of national measures that the very documents of the Union prefigure or require for their implementation.

Considering this, we should assess how the rules of European origin are located within the State, with particular reference to the hierarchy of sources.¹⁰ The Constitutional Court, called on various occasions to assess the relationship between legal systems, particularly between directly applicable European laws and domestic legislation, initially considered laws of European derivation to be of equal rank to domestic legislation.¹¹

Around the mid-1970s, the Court established the primacy of “Community law” over domestic law, on the basis of Article 11 Const.-Italy and recognised the illegality of state acts aimed at implementing the regulations. It, however, ruled that a national court called upon to pronounce judgment could automatically waive application of the incompatible domestic provision. If a similar domestic law existed, according to the Court, it could only be eliminated after its repeal or a ruling of unconstitutionality.¹²

The Court of Justice adopted a slightly different position, finding that the primacy of Community laws over internal regulations implied that, by virtue of their direct applicability, they should be immediately applied in national law, prevailing over any incompatible domestic legislation, even if the latter was introduced at a later date.¹³

A significant shift occurred in the mid-1980s, when the Constitutional Court ruled that it was legally possible for the national court to independently disapply any domestic laws incompatible with European law, acknowledging the primacy of the latter over the former.¹⁴ The lack of a requirement for the judge to return a judgment of constitutionality, until then considered necessary, was based on the fact that domestic law and EU law are two separate independent legal systems, although coordinated.¹⁵ According to the Court, the distinction between our system and that of the Union implies that European legislation did not become part of domestic law, nor is it subject to the rules laid down by the laws and acts having the force of state law. This means, according to the Court, that this regulatory action is attributed with the force and value of law, since it is acknowledged as having the effectiveness that it possesses in the system of origin.

In subsequent decisions, the Court of Justice ruled that the non-application of internal rules incompatible with Community law should take place not only when those rules conflict with a European regulation but also when they are in conflict with any European provision that produces direct effects. It also ruled that this obligation applies both to courts and administrative bodies.¹⁶

As can be seen from the decisions cited, the result achieved by the Court of Justice and the Constitutional Court, albeit via different routes, is the same: the affirmation of the primacy of European law and the automatic disapplication by national courts of the incompatible domestic law. In the following period, the Constitutional Court, adopting the approach expressed by the Court of Justice, ruled that the court should not apply the internal rules if these are incompatible not only with the regulations but also with laws producing direct effects, i.e., both the provisions of the Treaty¹⁷ and the directives.¹⁸

Directive 2013/48/EU falls precisely within this legal-institutional context, increasingly inclined to give paramount importance to legislative sources of a European, rather than domestic, origin, also in the field of criminal justice.¹⁹ This applies primarily with reference to the aforementioned duty of the national court to disapply domestic rules incompatible with EU rules that have “direct effect”²⁰ and, moreover, to interpret Italian provisions in accordance with European legislation that does not have direct effect.²¹ But it applies also and above all with reference to the duty of national courts to comply with the interpretation of EU law provided by the Court of Justice of the European Union.²²

This would seem to determine a change in the relationship between the judge and the law. The criminal judge reconstructs the abstract circumstances of the case, performing an interpretation, so to speak, of the second degree, which can result in the “creation” of a rule of criminal procedure to be applied to the case, rather than that determined by the national legislature.²³ The domestic law is the subject of an interpretation whose parameters are legislative (domestic and European) and case law (Court of Justice) principles.²⁴

In the range of instruments protecting the fundamental rights of the accused, the legal system of the European Union may act as a strong lever, principally, for reasserting the rule of law, in the face of “deviant” domestic case law.²⁵ The reference to EU law could moreover help overcome any structural weaknesses in domestic law: when it conflicts with the fundamental rights outlined at a European level and provided that the European framework is capable of producing direct effects, it should be set aside.²⁶

In a system of the “multi-level” protection of rights, we need to verify what scope for innovation these acts have in terms of providing procedural guarantees, compared to the levels of protection ensured under Italian law and judicial practice in terms of the application of domestic rules.

In general, criminal courts should be attributed with the duty of interpreting European law “on the basis of the interpretative principles in force in the legal system of origin, and not those established in the Italian system”.²⁷ However, by virtue of the “non-regression clause” usually provided for in the Directives issued in this field,²⁸ no provision of these texts can be interpreted as limiting the procedural guarantees laid down by domestic legislation (constitutional and ordinary) or by the Charter of Fundamental Rights of the European Union, the ECHR, international law or the law of any other Member State.²⁹

3 The Right of Defence in Remand Proceedings in Italian Procedural Law: The Formal Interview Under Caution

3.1 General Characteristics of the Formal Interview Under Caution

In order for a more detailed examination of the issue before us, we should now dwell on the essential characteristics of the interview of a person subject to a personal precautionary measure, since this represents the most significant expression of the delicate relationship between authority and freedom in the field of precautionary measures.³⁰ Significantly, the Italian Code of Criminal Procedure of 1930 had included the regulation on arrest warrants at the beginning of the book dedicated to the stage of evidence gathering, with the clear objective of defining the status (detention) of the accused person³¹ and making it an instrument for the successful collection of evidence in criminal matters.³²

With a remarkable qualitative leap compared to the previous law, which allowed the accused person in detention to have his first meeting with the lawyer only after the end of questioning,³³ the law containing the delegation for the new Italian Code of Criminal Procedure³⁴ granted him the right to meet with the lawyer immediately, or no later than 7 days from implementation of the measure limiting his personal freedom.³⁵ This constituted the first step in the development of the instrument as a means of defence.³⁶

The fact that the detention order was issued without involving the accused person and only on the basis of material acquired and selected by the Public Prosecutor led the legislature in 1988 to establish that after execution of the order the person in custody should be questioned.

Article 294 of the Italian Code of Criminal Procedure (hereafter, CCP-Italy) provides that the court “which has decided to apply the measure”³⁷ must proceed with questioning at most 5 days after the commencement of preventive custody in prison or at most 10 days for other measures.³⁸

According to the Constitutional Court, for the defendant in vinculis, questioning is the most effective means of defence regarding solely the custody order issued.³⁹

The defence, due to the knowledge of the actions carried out by the Public Prosecutor at the basis of his request, may try to scale down, through the European measure, the weight of the elements in the charge. It is precisely through questioning that the court must assess whether the conditions for enforcement of the measure remain. Therefore, formal interview under caution is indispensable, under penalty of invalidity.

Before the amendment introduced by Law 63/2001, Article 294(4) CCP-Italy envisaged for the prosecution and the defence the “right to intervene” rather than the obligation to do so. Consequently, if the defender had not exercised this option, the court was not obliged to appoint any replacement pursuant to article 97(4) CCP-Italy.⁴⁰

Following Law 63/2001, the possibility of intervention on the part of the prosecutor remains, but the presence of the lawyer at the questioning was established as a necessary condition for its validity. In this way, the formal interview under caution is similar to the other hypotheses envisaged under Article 503(5) CCP-Italy,⁴¹ those referred to in Articles 391⁴² and 422 CCP-Italy.⁴³

If the relevant conditions are met, Article 97 CCP-Italy applies here: in other words, it will be necessary to appoint a lawyer if the defendant fails to do so, assigning one to him pursuant to article 97(4) CCP-Italy in the event of failure to contact, non-appearance of or abandonment on the part of the lawyer appointed by the defendant or the court.

In terms of penalties, violation of the provision constitutes nullity as provided for under Article 179 (1) CCP-Italy. Acknowledgement of the invalidity of the procedure results in the loss of effectiveness of preventive custody, leading to the need for a valid interview, which must be completed prior to the issuance of a new measure (Art. 302 CCP-Italy). It also means that none of the statements made up to that point may be used as evidence.

3.2 Interview Between the Lawyer with the Accused in Preventive Custody and Its Deferment

In order to more thoroughly examine the issue before us, it seems only right to analyse the provision contained in Article 104 CCP-Italy, which governs the right, and not merely an option, of the person in custody to speak to his lawyer.

This regulation, on one hand, conforms to the requirements of equal treatment, as well as to the exercise of a defence⁴⁴ for defendants (or suspects) held in custody and those at freedom,⁴⁵ and, on the other, complies with Article 93 of the European Prison Rules,⁴⁶ according to which “the accused has the right, from the moment of imprisonment […] to receive visits from his lawyer in order to prepare his defence”.⁴⁷ The Code of Procedure provides that, as a rule, the person remanded in custody, like the person held for questioning or arrested, has the right to meet with his lawyer immediately after being deprived of personal freedom [Art 104(1) and (2), CCP-Italy].⁴⁸

It was therefore provided that the defender, whether appointed by the defendant himself or by the court, should be immediately notified of the enforcement of restrictive measures [Articles 293(1) and 386(2) CPP-Italy],⁴⁹ and the defence lawyer has the right to access the places where the person held for questioning, arrested or subjected to preventive custody is being held (Art. 36 of the Rules Implementing the CCP-Italy).

In order to guarantee the full exercise of the right of defence pursuant to article 24 Const.-Italy, after the execution of such measures, the Constitutional Court has emphasised the need to ensure

“that the lawyer has the most comprehensive and facilitated understanding of the elements on which the request of the prosecutor is based, in order to provide appropriate and informed assistance during questioning” of the person held in custody, “and to be able to assess with full knowledge of the situation the most appropriate instruments to protect the personal liberty of his client, from a request for review, revocation or replacement of the measure to the filing of an appeal”.⁵⁰

The right in question⁵¹ is available from the beginning of the deprivation of liberty, whether as a result of preventive custody or in cases of arrest and holding for questioning. In this regard, it must be made available automatically, without any obstacles for the defence lawyer.

The aim of the instrument is mainly to allow defence strategies to be agreed during questioning. In any case, since the right to interview is absolute in nature, it is not possible to impose any purpose on the meeting between detainee and lawyer, nor may the interview be influenced by the fact that the former is in solitary confinement.⁵²

Article 104 CCP-Italy provides, however, a limit to the right to meet with the lawyer in the case of “specific and exceptional reasons for caution”. For these reasons, the interview may be deferred for a period not exceeding 5 days.⁵³

The Court of Cassation⁵⁴ has pointed out, on the line of consolidated maxims, that

the order adopted by the investigating magistrate to postpone the interview is justified in the event of exceptional precautionary requirements, regarding the danger of pre-establishing defensive strategies aimed at hindering ‘the course of justice’, going beyond the legitimate exercise of the right of defence, or at delaying or preventing the identification of the other associates who have not yet been identified during the investigation.

This approach displays, however, a theoretical danger, since there is no proof that the delay of the interview is, in practice, essential in order to avoid compromising the proceedings.

Equally theoretical is the assessment made in the field of organised crime. Here, according to the Court of Cassation:

danger of suppression of evidence is related to the intrinsic seriousness of the alleged offence of mafia association, the plurality of suspects (35 people) and the plurality of alleged criminal offenses and purpose of the criminal association (multiple cases of continued aggravated extortion).⁵⁵

Insofar as the deferral departs from the general principle, it should be applied only when strictly necessary.⁵⁶

We should note that this limit was not considered contrary either to Articles 3 and 24(2) Const.-Italy or to Article 6 ECHR, which do not preclude a reasonable postponement of the first contact between the accused and lawyer “in the more important interests of the administration of justice”.⁵⁷

We should mention from the outset the critical issues that emerge in relation to the parameter indicated in Article 8(1)(c) of the Directive, whereby “any temporary exemption pursuant to article 3 (5) or (6), or of Article 5(3) is not based solely on the type or severity of the alleged offence”.

3.3 Judicial Review on the Justification of Preventive Custody

Postponing the interview violates the minimum guarantees that inform the rules of due process and should therefore be subjected to close scrutiny.⁵⁸

The limitation of this right is possible from the beginning of detention and, in the event of it being extended for the full period allowed by law, any contact between defence lawyer and prisoner would, in fact, be prevented before the interview under Article 294 CPP-Italy.⁵⁹

Significantly, the prosecutor has the possibility to request that the judge examines the suspect within 48 h following “capture” [Art. 294(1-ter) CCP-Italy]. In this case, if the ban on meeting the lawyer is ordered for the maximum period, the prosecutor still has 3 days to question the suspect, resulting in an inevitable risk of making the formal interview under caution an instrument that provides no effective protection.⁶⁰

The prosecutor, where permitted, may independently prevent the suspect from meeting his lawyer and, in the meantime, question the person arrested, held for questioning, or subjected to preventive custody.⁶¹

From a detailed examination of the regulations in question, the results achieved are far from clear, especially in the preliminary phase, in which problems concerning the limitation of personal freedom normally arise.

The judge for preliminary investigations, when questioning the person detained, while having to provide a reasoned order at the request of the prosecutor, is unlikely, given the limited time, to be able to effectively assess whether or not postponement is necessary. He will largely base his decision on evidence provided by the prosecution, that is, by one of the parties, with a negative impact on the effectiveness of judicial review. Nor is there any point appealing to the obligation of the prosecutor, introduced under Law 332/1995, to attach to the application for a precautionary measure all the information favourable to the suspect, an obligation that cannot be considered satisfied at the time of submission of the request but must also include the new judicial review of the legality of preventive custody during pre-trial questioning. In fact, it is always the prosecutor who determines which factors are favourable to the accused and which should be forwarded to the judge. The exception, therefore, ends up becoming the rule and fully allows the judge for the preliminary investigations and the public prosecutor to question the detained suspect, without the latter having had any contact with his lawyer. The absence of a contact with the lawyer prevents the accused from preparing an adequate defence. Even if the interview is preceded by a prior meeting with the lawyer, it will still be extremely difficult for the latter, due to the strict time requirements governing preventive custody, to carry out a “parallel defensive investigation” with the interview in mind. Moreover, given the unfortunate wording of Articles 335 and 369 CCP-Italy,⁶² it may well happen that the suspect becomes aware of criminal proceedings against him only when the precautionary measure is enforced. The very discovery of procedural documents by the prosecutor to the interested party often remains something that should happen in principle but is not supported by practice.

The filing of procedural documents, pursuant to Article 293(3) CPP-Italy, then, is often pointless, since the issue of copies may not interfere with the short, binding time limits laid down for the questioning of an accused person, it being evident that neither may the lawyer demand nor may the judicial authority grant extensions of such terms when it turns out to be infeasible to copy all the documents required within the strict time limits established for questioning. This situation occurs systematically in cases where the prosecutor requests that questioning take place within 48 h.

These drawbacks, in part, do not occur in the less frequent event of application of the precautionary measure and questioning after the charge has been made.⁶³

As the lawyer, among other things, is not granted any opportunity to ask direct questions to the accused, he is forced to provide passive support.

Note, also, that the questioning may be conducted by the same judge who ordered the precautionary order, who will clearly seek confirmation of his earlier decision. Nor does the judge have the competence to engage in further investigations, at least not if these are requested by a party in the proceedings, to assess in greater detail the evidence collected during questioning.⁶⁴ Once the legality of the measure has been confirmed during questioning and the process has been completed with the subsequent adversarial meeting (even if its adversarial nature is not achieved or is not achieved effectively), the procedural system does envisage any tools for the periodic assessment of the judge’s decision to order preventive custody, but merely adheres to standard procedural deadlines.

The right of the lawyer to attend the interview is an obligation in terms of professional ethics, and failure to allow this results in disciplinary liability, but the reality of court-appointed counsel and legal aid is dramatic.

The prevalence of a merely formal guarantee of the right of defence is even more evident when there is the recourse to pre-precautionary measures (a prelude, at least usually, to the issue of an order for a custodial measure), which are applied at the actual time when a crime is allegedly committed.

In this hypothesis, the use of the instruments provided for in Articles 291(1) and 293(3) CPP-Italy is only theoretical: the defence and civil rights aspects of questioning succumb to satisfy investigative needs that, in the event of arrest or holding for questioning, take priority and are easy to implement at a time when the detainee is in a position of severe psychological inferiority, which is not compensated for by the necessary presence of a lawyer, since the latter must remain silent and is kept almost entirely in the dark regarding the details of the case.

Note that the physical and psychological pressure caused by solitary confinement is such as to greatly diminish, if not cancel, a person’s freedom of self-determination. This ends up frustrating the adversarial process during questioning and the effectiveness of judicial review. The perverse mechanism of the deferral of the meeting with the lawyer laid down by Article CPP-104 Italy is strictly linked to the application of caution, to emphasise that the person subjected to the restriction of personal freedom, in his moment of greatest psychological weakness, is a tool with which to obtain statements. At the same time, therefore, the immediate recognition of a qualified defence is seen as compromising the genuineness of the procedural action, and not an indispensable condition for allowing more effective self-defence, also in terms of the guarantee whereby nobody is obliged to incriminate himself.

In light of the above, it is regrettable that investigative needs take priority over the rights of freedom of the detained person.⁶⁵ This restriction of liberty must never be enforced merely to avoid contact between the defendant and his lawyer in view of questioning pursuant to article 294 CCP-Italy or a remand hearing. It would be desirable, therefore, for the reasons for the postponement to be made clear right from the moment of arrest.⁶⁶ Deferral may not be used to prevent the flow of information between the defendant and his lawyer with the aim of obtaining “unadulterated” information from the suspect during questioning.⁶⁷

4 The Guarantees Provided Under Directive 2013/48/EU

4.1 Minimum Standards on the Right to Appoint a Lawyer: Scope and Content. Principle of Effectiveness and Practicality

Within the framework of reinforcing the procedural rights of suspects or defendants in criminal proceedings,⁶⁸ Directive 2013/48/EU⁶⁹ establishes minimum standards⁷⁰ concerning the right to avail oneself of a lawyer in criminal proceedings and in execution proceedings for the European arrest warrant.⁷¹

This Directive should be implemented taking into account the relevant provisions of Directive 2012/13/EU,⁷² which establish that suspects and accused persons should be informed immediately of the right to avail themselves of a lawyer and that if they should be subjected to the restriction of personal freedom, they must immediately receive a letter of rights that contains information on this right.⁷³

In order to perform a more accurate examination of the effects of the Directive in question on the procedure of the formal interview under caution, especially to see if there is the possibility of increasing guarantees for a detained accused person compared to the provisions contained in the Italian Code of Criminal Procedure, we need to identify, principally, its scope of application and then, subsequently, the scope of the right at issue and, finally, the possibility of derogations and waivers.

Pursuant to article 2(1), the Directive

applies to suspects or accused persons in criminal proceedings from the time when they are made aware by the competent authorities of a Member State, by official notification or otherwise, that they are suspected or accused of having committed a criminal offence, and irrespective of whether they are deprived of liberty. It applies until the conclusion of the proceedings, which is understood to mean the final determination of the question whether the suspect or accused person has committed the offence, including, where applicable, sentencing and the resolution of any appeal.

The moment when time starts to run is, therefore, identified by the material concept of “charge”, in line with that developed by the European Court of Human Rights.⁷⁴ As is known, in the context of the ECHR, this term has acquired its own independent meaning, responding to a “material concept” that identifies it with “the official notification, emanating from the competent authority, of the accusation of having committed a criminal offence”. Consequently, in this sense, one can be “charged” before being brought before a judicial body, since it is not even necessary to include the “accusation” in a communication to be received by the person concerned. On this basis, the following were therefore considered times when proceedings begin and from which civil rights guarantees come into effect: arrest in flagrante delicto, the issuance of a preliminary injunction, the request to present oneself for questioning before the magistrate, the questioning of a person suspected of having committed a criminal offence, formal notification of the accusation.

The “accusation”, therefore, may also emerge during questioning [Art. 2(3)]. In this case, i.e. when a person other than a suspect or an accused person, such as a witness, in turn becomes a suspect or accused person during questioning carried out by the police or by another law enforcement authority in the context of criminal proceedings, it is appropriate to immediately suspend questioning.⁷⁵

Having identified the scope of application, we need to identify the scope of the right in question.

Article 3, entitled “The right of access to a lawyer in criminal proceedings” provides that Member States must ensure that suspects and defendants have the right to meet in private and to communicate with the lawyer assisting them [Articles 3(1) and 4].⁷⁶ Therefore:

Member States shall ensure that suspects and accused persons have the right of access to a lawyer in such a time and in such a manner so as to allow the persons concerned to exercise their rights of defence practically and effectively.

One of the key principles of the new Directive is thus clear: the defence must be practical and effective.

Also, the practical arrangements that Member States may establish regarding the duration and frequency of meetings or the safety of the lawyer and of the suspect or accused person⁷⁷ or the duration, frequency and methods of communication between suspect-accused persons and the lawyer assisting them⁷⁸

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Effects of the Directive 2013/48/EU on the Italian System of Precautionary Measures: Defence Rights in Remand Hearings

The Effects of the Directive 2013/48/EU on the Italian System of Precautionary Measures: Defence Rights in Remand Hearings