CRIMINAL PROCEDURE
Instructional goals
The course aims to make students acquire the necessary knowledge for a good command of the subject and to develop the ability to consult the sources of law, to orient oneself in their textual and systematic interpretation and to apply them to concrete cases, also in view of the study of the other criminal law courses and the subsequent exercise of a legal profession.
Intended learning outcomes
Knowledge and understanding: Following the course attendance, the
student will have acquired the fundamental knowledge for a full command of criminal procedure law.
Teaching activities will be divided into lectures and practical exercises, mainly dedicated to the examination and oral and written discussion of cases and answer to questions, with a constant comparison both with the internal and supranational case law.
This teaching method will facilitate the interaction between students and the professor and to meet the needs related to the prospective professional activity.
Acquired knowledge will be verified by taking a final oral exam.
Particularly relevant topics will be examined through the intervention of experts (professors, magistrates, lawyers).
Ability to apply knowledge and understanding: The student, by virtue
of the skills acquired through the frequency of the teaching activities, will be able to consult the sources of criminal procedure law and to give it a textual and systematic interpretation.
The exercises carried out during the course will also allow the student to
increase his legal research skills and to solve practical cases by applying the principles and the relevant laws, also in the prospect of carrying out a professional activity in the criminal law field.
The above mentioned teaching activities, stimulating the interaction between teachers and students, will make it possible to progressively evaluate soft and hard skills achieved by the students.
Eventually, these skills will be verified through the final oral exam.
Independent judgment: Following the course, the student will get the method and the skills for the purpose of the legal research and interpretation of the criminal procedure law.
The case study approach will allow the development of critical analysis skills, related to the sources of law, the doctrine and the case law, problem solving skills and team work skills.
Communication skills: Upon completion of the course, the student will be able to master the criminal law procedure vocabulary.
Case discussion and other tutorials will also help the student to develop the rhetorical and communicative skills. The student, thanks to the interaction with the teacher and the other students, will be able to modulate his legal language in relation to the context and variety of his interlocutors.
The aforementioned skills will be evaluated during the activities described above and by means of the final oral examination.
Learning skills: Attendance of the course will enable the
student to acquire the skills necessary to identification and interpretation of relevant criminal procedure law, as well as to research and analysis of the related doctrine and case law.
The familiarity acquired with the lexicon and the argumentative method of both the national and supranational Courts decisions will also allow an easy
approach to the case law analysis.
These skills will be useful for the autonomous study and research during the postgraduate studies and the professional activity.
Course Contents
Fundamental principles.
The sources of criminal procedure law.
The subjects of the criminal proceedings.
The acts.
The preliminary investigations and the preliminary hearing.
The special proceedings.
The trial.
The appeals.
The res judicata.
Classes will also deal with the Cartabia reform of criminal justice, adopted with legislative decree n. 150 of 2022
Reference Books
Bargis, M. Compendio di procedura penale (Latest edition). Wolters Kluwer. The following chapters are excluded: VIII - The proceeding before the “tribunale in composizione monocratica”; X – Penal execution (par. 6 ss.), XI – International judicial cooperation; XII – Juvenile criminal proceeding; XIII – Trial before the justice of the peace; XIV – Proceeding against companies (legislative decree n. 231 of 2001). Or, as an alternative: Alonzi, F. e a. Diritto processuale penale (Latest edition). La Tribuna. The following parts are excluded: Chapter V, Section VI – The proceeding before the “tribunale in composizione monocratica”; Chapter VII, § 2 and 3 – Penal execution, Chapter VIII – International judicial cooperation Or, as an alternative: Tonini, P. & Conti, C. Manuale di procedura penale (Latest edition). Giuffrè Francis Lefebvre. The following parts are excluded: 4th Part: chapters II – The proceeding before the “tribunale in composizione monocratica”; III – Trial before the justice of the peace; IV: Juvenile criminal proceeding; V - Proceeding against companies (legislative decree n. 231 of 2001). 6th Part: chapter II: Penal execution
Teaching Methods
The teaching activities will be divided into lectures and exercises. More specifically, in order to develop a training course aimed at ensuring an adequate ability to autonomously deal with legal issues, as well as communication skills, students will be involved in oral and written exercises. They will have either a theoretical and practical approach and they will concern the analysis of national and supranational case law on specific criminal procedure topics (with specific reference to the European Court of Human Rights and the Court of Justice of the European Union).
Moreover, the intervention of experts (professors, magistrates, lawyers) will deal with particularly interesting topics concerning criminal procedure in the current social context.
Assessment Method
During the oral exam the student will be required to show that he/she knows and understands the principles and notions of Criminal procedure and that he/she is able to apply them to practical cases and to face interpretive problems.
The student is expected to be able to independently analyse the sources of Criminal procedure and relevant case law, and to use the appropriate technical and legal vocabulary, thus proving that he/she has acquired the study method, as well as the legal analysis and learning abilities, necessary to carry on, also independently, further study of the matter.
The following evaluation criteria will be taken into account to assign the final grade, expressed in thirtieths:
- knowledge and understanding of the notions and principles of the matter, ability to apply them to concrete cases and, possibly, result of the intermediate written test (70 %);
- appropriate use of the technical and legal vocabulary, ability to find and interpret relevant sources and acquisition of the legal analysis and study method (35%).
Learning gaps concerning one or more notions or principles will lead to an insufficient evaluation, even in presence of a basic knowledge of the matter.
The teaching activities will be divided into lectures and exercises.
The latter will consist mainly of the examination and
discussion of cases, in a way that solicits the participation of the students and their interaction with the teacher.
Thesis assignment criteria
Good knowledge of the subject, highlighted by the grade reported
in the final exam; attendance of the course.
Week 1
Course objectives.
1.2. Criminal procedural law.
1.3. Criminal law and trial. The problem of the method.
1.4. The trial systems. Inquisitorial system and adversarial system. The
mixed system. The features of the Italian model.
1.5. The principles of criminal proceedings: the constitutional and international framework for the protection of human rights. In particular, the rules on the "due process".
1.6. The adversarial principle (contraddittorio) in the context of art. 111 Constitution – The relevant case law.
1.7. Criminal proceeding judges. Jurisdiction in the subjective and objective meaning. The constitutional principles.
1.8. Jurisdiction: notion. Jurisdiction by subject. Jurisdiction
by territory. Jurisdiction by connection. The distribution of the affairs within the jurisdiction of the tribunal.
1.9. The capacity of the judge: concept and species. 1:10. Incompatibilities.
Abstention and recusal.
Exercise: Case law and lack of functional jurisdiction.
Bargis Handbook: Introduction – Chapter I
Alonzi Handbook: Chapter I
Tonini Handbook: First Part, Chapters I e II, Second Part, Chapter I
Week 2
2.1. The prosecutor: constitutional and legal framework. The
functions.
2.2. The police: functions and institutional position.
2.3. The accused and the person under investigation. The right to silence. The capacity to be accused and procedural capacity.
Exercise: National and supranational case law on the nemo
tenetur se detegere principle.
2.4. Preliminary investigations: objective and subjective profiles. Characters of the phase: Notizia di reato. The pre - procedural investigations.
2.5. The conditions to proceedings.
2.6. The Cartabia reform and the priority criteria in the conduction of investigations.
2.7. The peculiarities of the investigations in relation to the different types of crime.
2.8. The terms of the investigation and the new provisions introduced by the Cartabia reform of criminal justice.
2.9. The epilogues of the investigations: filing of the case or indictment.
Bargis Handbook: Chapters I and V
Alonzi Handbook: Chapter II
Tonini Handbook: Second Part, Chapter I, and Third Part, Chapter I
Week 3
3.1. The limitation of personal liberty by the police: arrest and "fermo". Procedure, right to defense and appeals.
3.2. The seizure orders: different kind of seizure and appeals.
3.3. Interception of communications.
Bargis Handbook: Chapters I and V
Alonzi Handbook: Chapter III
Tonini Handbook: Second Part, Chapter V
Week 4
4.1. Criminal evidence: concept and species. The systematic choices of the code of criminal procedure. The laws regulating the evidence: the
constitutional principles and the criminal procedure code. The principle of
legality of evidence.
4.2. Legal prohibitions regarding evidence and its breaches. The unconstitutional evidence and the theory of the “poisonous fruits tree”.
4.3. The evaluation of the evidence: the principle of intime conviction and the motivation of the judicial decision. The legal proof.
4.4. The testimony: concept and object. Indirect testimony.
The obligation to testify and the privilege against self-incrimination. 4.5. Other “declarative” evidence : the examination of the private parties and the examination of the accused in a related proceeding or for a related crime.
4.6. The expertise: concept and object. The activities of the expert and their conclusive opinion.
Exercise: The various figures of people making declarations in the criminal trial: case study and relevant issues. The problems concerning the expert's examination.
Bargis Handbook: Chapter III
Alonzi Handbook: Chapter V, Section III
Tonini Handbook: Second Part, Chapter IV
Week 5
5.1. The provisional protective measures: general principles and the single measures.
5.2. The maximum duration of the protective measures.
5.3. The dynamics: application, modification and loss of effectiveness. The
regime of related appeals.
5.4. The new figures of protective measures in relation to new criminal forms (e.g. the stalking).
Exercise: Adequacy and proportionality of the measures and analysis of the
case law.
Bargis Handbook: Chapter IV
Alonzi Handbook: Chapter III
Tonini Handbook: Second Part, Chapter VI
Week 6
6.1. The preliminary hearing: nature and purpose of the phase. The introductory acts.
6.2. The development of the hearing. The epilogues.
6.3. The rules of judgment for the referral and the novelties introduced by the Cartabia reform; the subsequent activities and the introduction of the judgement.
Exercise. The atypical developments of the preliminary hearing: the parties and the discussion. Cases law.
6.4. The summary trial.
Bargis Handbook: Chapter V
Alonzi Handbook: Chapter IV
Tonini Handbook: Third Part, Chapter IV
Week 7
7.1. The alternative criminal trials: types and functions.
7.2. Features and case law related to the single alternative proceedings.
7.3. Nature and functions of the probation; the new provisions introduced by legislative decree n. 150 of 2022.
Bargis Handbook: Chapter VI
Alonzi Handbook: Chapter IV
Tonini Handbook: Fourth Part, Chapter I
Week 8
8.1. The trial: general features. The opening of the trial. The
Requests for the admission of the evidence. The admission of the evidence: criteria and decisions of the judge.
8.2. The principle of correlation between indictment and sentence. The additional charges.
8.3. The final discussion and deliberation of the verdict. The principle
of immediacy and its implications; the evolution of the case-law and the interpretation of the principle in the Cartabia reform. The legal criterias and the rules for the deliberation of the verdict. The motivation of the judicial decision.
The decision. Conviction, and acquittal. The absolutory formulas. The rules of judgment and the burden of proof.
8.4. The institute of cross-examination and collection of the evidence.
8.5. The examination of the witness: questions allowed and questions prohibited. The powers of the judge during the examination. The examination of the experts and of the private parties. The correspondent regime of complaints. The trial readings. The investigating powers of the judge.
Exercise: The problem of the witness "to be protected": the exceptional
regime of declarations made by witnesses exposed to the risk of violence or collusion; the "remote" examination of the victims of sexual crimes and minors; the remote examination of others subjects.
Bargis Handbook: Chapter V
Alonzi Handbook: Chapter IV
Tonini Handbook: Third Part, Chapter IV
Week 9
9.1. The general provisions on appeals and the various figures of
appeal.
9.2. The novelties regarding appeals introduced by the “Orlando Reform”.
Bargis Handbook: Chapter IX
Alonzi Handbook: Chapter VI
Tonini Handbook: Fifth Part
Week 10
10.1. The appeal: general framework and the persistence of some ambiguities.
10.2. Legitimation to appeal and the principle of equality of the parties. The
plea deal on appeal.
10.3. The motivation of the appeal decision in relation to the
first degree decision and the issue concerning the renewal of the evidence collection in case of reformatio in peius.
Week 11
11.1. The cassation judgment. General characteristics in relation to cases of appeal by cassation.
11.2. The problem of the lack of motivation and the control over the facts.
11.2. The cassation appeal or cassation appeals? Analysis
of the various cases for appeal by cassation in relation to the nature of the alleged defects.
11.3. The phases of the ruling, the referral judgment, its nature and the limitations coming from the referring decision; the subsequent
possible remedies.
Exercise: The concept and practical application of the criterion of the inadmissibility decision due to manifest unfoundedness. The problems between theory and practice.
Bargis Handbook: Chapter IX
Alonzi Handbook: Chapter VI
Tonini Handbook: Fifth Part
Week 12
12.1. The extraordinary appeals. The new article 628-bis of the code of criminal procedure.
12.2. The res judicata. Is it really still intangible? The new spaces that the
case law gives to the judge of the execution, whose procedural model appears more and more inadequate for the duties it is called to satisfy.
12.3. Brief overview on the juvenile trial.
12.4. Brief overview on the trial before the justice of the peace
Bargis Handbook: Chapter IX
Alonzi Handbook: Chapter VI
Tonini Handbook: Fifth Part