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77 Judicature 211 (1993-1994)
Theory versus Practice of Italian Criminal Justice Reform

handle is hein.journals/judica77 and id is 225 raw text is: Theory ver Italian ci of :e reform The implementation of Italy's new code of criminal procedure illustrates how rules are not sufficient to change habits, behaviors, and results. n 1988, the Italian Parliament enacted a new code of criminal procedure, effective on October 24, 1989. The new code super- seded the 1930 code originally writ- ten under the Fascist regime and amended several times after the Sec- ond World War. The structure of the first code (known as codice Rocco, named for the minister of justice who played a major role in its preparation) was based on a non-adversarial, in- The research for this article was carried out for several months in 1990 and 1991 in courts and prosecutors' offices in southern and northern Italy. The research was conducted by participant observation, interviews, and analysis of quantita- tive data. It was directed by Professor Giuseppe Di Federico, director of the Research Center for Ju- dicial Studies at the University of Bologna. Dr. Davide Carnevali and Dr. Francesco Contini also contributed to the project. Research was funded under a grant from the Italian National Research Council by the Research Center forJudicial Studies, University of Bologna. Features of American justice systems were learned by the author during a fellowship sponsored by the Italian National Research Center at the Uni- versity of Denver College of Law in 1989 and 1992. The author gives special thanks to Professor Harry 0. Lawson, co-director of the master of sci- ence in judicial administration program at the University of Denver, who has been an irreplace- able source of information and motivation. The author also thanks Mary Winston Donworth for her precise editing suggestions. 1. Damaska, THE FACES OFJUSTICE AND STATE Au- THORITY 17 (New Haven: Yale University Press, 1986). The process of enacting the new code was complex and lengthy. See Pizzi and Marafioti, The New Italian Code of Criminal Procedure: The Difficul- ties of Building an Adversarial Trial System on a Civil Law Foundation, 17 YALEJ. INT. L. 5 (Winter 1992). Volcansek, Decision-Making Italian Style: The New Code of Criminal Procedure, 13 W. EUR. POL. 33-45 (1990). by Marco Fabri quisitorial model and hierarchical officialdom.1 The 1988 code was an at- tempt to move toward an adversarial model of criminal procedure,2 a model that has its source in liberal ideology and is considered the more appropri- ate system for liberal democratic states.3 Reform was also considered necessary because of the huge backlog of cases and the length of procedures. Italy has what is probably the biggest backlog and the slowest pace of litiga- 2. The adversarial mode of proceeding takes its shape from a contest or a dispute. It unfolds as an engagement of two adversaries before a rela- tively passive decision maker whose principal duty is to reach a verdict. The nonadversarial mode is structured as an official inquiry. Under the first system, the two adversaries take charge of most procedural action; under the second, officials per- form most activities. Damaska, supra n. 1, at 3. 3. Miller, Plea Bargaining and its Analogues Under the New Italian Criminal Procedure Code and in the United States: Towards a New Understanding of Com- parative Criminal Procedure, 22 N.Y.J. INT. L. & POL. 218 (1990). Damaska, Adversary System, in ENCYCLO- PEDIA OF CRIME AND JUSTICE 25 (New York: Free Press, 1983). 4. Computerized caseflow management systems for courts have been implemented only recently in some offices. Information technologies such as video and imaging technologies have been suc- cessfully tested, and they are in the process of be- ing used more extensively. Technology is more and more available; the problem is how to use it effectively. 5. Di Federico, The Crisis of the Justice System and the Referendum on the Judiciary, in Leonardi and Corbetta (eds.), ITALIAN POLITICS: A REvIEw 26 (Bo- logna: I1 Mulino, 1989). 6. Pizzi and Marafioti, supra n. 1, at 17-26. Miller, supra n. 3, at 228-233. 7. Pound, Law in Books and Law in Action, 44 AM. L. REV. 12 (1910). Summers, INSTRUMENTALISM AND AMERICAN LEGAL THEORY 21 (Ithaca-London: Cornell University Press, 1982). tion, both criminal and civil, among all Western countries. Although reliable data are scarce,4 there are about 1.5 million civil suits and more than 2.5 million criminal actions before the Italian courts, and proceedings often last 15 years or more. The excessive duration of trials-for which Italy has been repeatedly condemned by the European Courts of Human Rights- has itself contributed to a multiplicity of disastrous consequences which vio- late citizens' legitimate expectations from their system ofjustice.5 Legislators, scholars, and others thought the new criminal procedure would expedite the criminal process and reduce the immense backlog. The two primary objectives would be reached by terminating approximately 80 to 85 percent of the cases before trial by using plea bargaining and other special procedures.' Yet for several reasons these goals have not been fulfilled. In exploring these reasons, this article focuses on some aspects of the new code in prac- tice that have been extremely dysfunc- tional for the administration of crimi- nal justice in Italy. Using a judicial ad- ministration approach, it considers the law in action rather than law in books,7 with more attention given to caseflow management and organiza- tional issues than to legal aspects. It also points out some major difficulties

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