pretrial detention compensation. the italian experience

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Pre-trial detention related compensation claims in Italy Nicola Canestrini Fair Trials LEAP annual conference 2017, Athens

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Page 1: Pretrial detention compensation. The Italian experience

Pre-trial detention related compensation claims in Italy

Nicola Canestrini Fair Trials LEAP annual conference 2017, Athens

Page 2: Pretrial detention compensation. The Italian experience

Italian criminal justice systemthree instances

“semi-adversarial” (adversarial with

inquisitorial approach)

prosecution is indipendent, mandatory,

leads investigation

no reimbursment of legal fees in case of acquittal

no bail but probation <2 years conviction

Page 3: Pretrial detention compensation. The Italian experience

pretrial detention in Italyrequest by prosecutor, ordered by a judge (in chambers), reviewed by request max. statutory conviction length >5 years. discretionary, 2 conditions:

serious circumstantial evidence (“probable cause”) AND risk

further offences (and/or) evidence tampering (expiration date) (and/or) abscond.

“extrema ratio” lenght: phase and crime depending, maximum is fixed by law (for most serious crimes: investigation 1 year, 3 instances: 1 + 1 1/2 + 1 1/12 up to max. 6 years)

Page 4: Pretrial detention compensation. The Italian experience

approx. 30% prisoners in PTD

Page 5: Pretrial detention compensation. The Italian experience

PreTrial-detention COmpensationlaw (It. Constitution and criminal procedure code)

acquittal / wrongful PTD/ PTD longer than conviction

upon personal request of PT detainee not automatic time limit: 2 years max. of compensation 516.000 € quantum? standard + case by case correction rules of civil proceeding (cost refusal)

Page 6: Pretrial detention compensation. The Italian experience

995 cases

€ 35.248.358,59

2014

Page 7: Pretrial detention compensation. The Italian experience
Page 8: Pretrial detention compensation. The Italian experience
Page 9: Pretrial detention compensation. The Italian experience

“gross negligence of unlawful detained defendant”

use of the right to silence?

It. Supreme Court, Grand Chamber, judgment n. 51779/2013