Audi Alteram Partem in Criminal Proceedings

It is widely recognised that a fair criminal trial necessitates the involvement of private parties in fact-finding, since their involvement in criminal proceedings not only sets the necessary conditions for the proper protection of the defence’s rights but also contributes to reliable decision-making. In recent times, awareness of the decisive role of the defence has grown worldwide as a result of the increasing influence of common-law procedure. This has lead to the rise of clear adversarial tendencies even in civil-law countries, which have progressively reduced the weight of out-of-court fact-finding, typical of the inquisitorial tradition.

A close examination of the Italian criminal justice reveals that significant changes took place in the understanding of criminal proceedings over the last few decades. At the time of the enactment of the current code of criminal procedure (1988), criminal justice in Italy was still governed by the 1930 code, albeit largely amended. The so-called ‘Rocco-code’ maintained some of the main features of the original model, which left to private parties very limited room in criminal proceedings. In particular, the defence could give only indirect contribution to the taking of oral evidence in open court, since depending on the types of the proceedings, witnesses were examined by either the president of the trial court or by a district court judge (pretore). Furthermore, evidence-gathering was largely frustrated by the widespread use of information collected by law enforcement authorities in the pre-trial stages. In particular, the drafters of the fascist code had construed the intermediate stage (istruzione) as the procedural phase primarily aimed at the collection of criminal evidence. Most significantly, defendants were normally remanded into custody at the beginning of the judicial proceedings, being therefore deprived of the right to take part in criminal proceedings as free persons, with inevitable repercussions on their defence rights. Under the 1930 model, the intermediate phase should have been headed either by an investigating magistrate or the public prosecutor. However, the prosecutorial inquiry, though initially conceived as an exception to the ordinary judicial inquiry, soon gained ground in practice, thus also frustrating the accused’s right to be heard by an impartial body. This result was long tolerated on the ground that the public prosecutor, forming part of the judiciary, is under Italian law an independent body of justice (organo di giustizia). Yet nothing could justify the result of an independent inquiry being conducted by the same authority that charged defendants with a criminal offence, remanded them into custody, and collected incriminating evidence against them.

In his book ‘O devido processo penal’, Giacomolli pointed out that Brazilian courts, with rare exceptions, still largely follow practices reflecting an authoritarian understanding of criminal justice. It would be misleading to say, however, that this result is still due to the original authoritarian approach of the 1941 code of criminal procedure. Although clearly inspired by the 1930 Italian code, Brazilian criminal justice has undergone several developments over last decades, which have steered it away from the initial state-centred approach.

Different problems arise in the two countries in the field of transnational criminal justice. Italian law does not provide for comprehensive rules on transnational cases, which are governed by various legal instruments with different status and origin. The rules on international cooperation have basically two sources, namely domestic and international law. National rules are mainly concentrated within the 11th Book of the code, which governs international judicial cooperation with foreign countries. The current codification departed from the approach of the 1978 draft for a new code of criminal procedure. This draft proposal had proposed placing the rules on extradition, letters rogatory and the execution of foreign judgments after the general rules on the subjects and acts of criminal proceedings, the law on evidence, and pre-trial measures. Ten years after the failure of this project, the 1988 codification confirmed the traditional approach of the Rocco code, enacting the rules on the tools of legal assistance at the end of the code—quite an appendix to the provisions governing domestic cases. By this means, the code’s drafters also rejected the model, adopted a few years earlier by German-speaking countries at the beginning of the 1980s, of a separate statute on international cooperation in criminal matters.

The comparative analysis of the developments that have occurred in Italy and Brazil in order to enhance participatory safeguards for private parties in criminal proceedings highlights various common lines. As noted, the Brazilian 1941 code was largely inspired by the Italian codification of 1930. The subsequent history of both criminal justice systems was the constant (albeit not always linear) attempt to depart from this starting point and therefore from the strong inquisitorial tradition that had long characterised the Italian and Brazilian criminal procedural law. Yet Brazil is still governed by the old 1941 codification, whereas in 1988 Italy enacted a new code of criminal procedure, after the failed attempt to launch a new codification in the 1970s.

The examination of the developments that have occurred in the domestic law of the selected countries and the persistent deficiencies in both the areas of domestic and transnational criminal justice provide the basis for the subsequent discussion. At this point, the present study should now focus on the models for solutions provided by international human rights law and EU law to solve the deficiencies existing in Brazilian and Italian criminal justice in relation to the issues under examination.

We have anticipated that the development of a broad participatory understanding of criminal proceedings by the Strasbourg case-law has influenced the evolution of EU law in criminal matters over the last two decades. The focus on defence rights as an engine of a fair criminal justice had already followed the harmonisation process of criminal procedure law that occurred under the former Third Pillar in the field of transnational cooperation among member states. Moreover, EU institutions were certainly also aware of the need to strengthen the defence rights in domestic criminal proceedings in the middle of the last decade, as the European Commission launched the proposal of a Framework Decision on certain procedural rights in criminal proceedings throughout the European Union. Alongside specific aspects that constituted the necessary conditions for the active involvement of private parties in criminal proceedings, this proposal, for example, explicitly focused on the right to interpretation, which, in the light of the requirements set forth by the European Convention, must be of such quality as to enable the defendant’s effective participation in criminal trials. During the legislative procedure, however, this proposal faced enormous difficulties and was never adopted.

It is certainly not an easy task to ascertain whether and to what extent the European Convention acknowledges participatory rights to the individuals involved in transnational criminal procedures. Recourse to the European Convention to ensure respect for human rights in transnational cases has been a relatively recent challenge. This is principally due to the general approach of the provisions of this Charter relevant in the field of criminal justice, provisions that were traditionally interpreted as mainly aimed at protecting individuals involved in domestic proceedings, except for a few provisions relating to cross-border cases. This approach was in turn the result of a markedly territorial conception of the Convention (and of international human rights law more broadly). The Strasbourg Court has on several occasions confirmed this conception, despite referring to the ‘territorial’ scope of the States’ commitment to ‘secur[ing] to everyone within their jurisdiction the rights and freedoms defined’ as involving both the acts committed within their territory and the people falling within their jurisdiction.

Like the European Convention, the Pact of San José does not contain specific provisions explicitly aimed at the protection of due process rights in transnational criminal cases. Perhaps more than in Europe, the recourse to this international Charter to protect the individuals involved in transborder inquiries constitutes a relatively recent achievement, which has been rarely analysed until now. The fact that the Inter-American case-law has only rarely been called upon to examine issues concerned with due process rights in transborder cases has contributed to this situation. Moreover, a few cases were recently raised before the Inter-American institutions, providing a basis for the examination of this problematic area.

It has been observed that the focus by EU institutions on the defence’s contribution to fair criminal justice followed the legislative developments occurred over the last decade in the field of international cooperation within the EU area. Moreover, the evolution of EU legislation did not follow a uniform path. Whereas the main goal pursued in the first legislative season was to strengthen mutual cooperation among member states in core areas of legal assistance, the approach changed considerably within a few years. In particular, the enhancement of mutual trust by means of the EAW procedure resulted in a double-edged sword, exposing the individuals concerned to several risks arising from these new surrender proceedings. The rising awareness of these risks, alongside the failure of the proposal of a legislative tool aimed at defining the main procedural rights in criminal proceedings, led to significant changes in the EU legislative policy in criminal matters. A clear example was the 2009 amendment of the EAW legislation, issued with a view to strengthening the participatory safeguards of absent defendants involved in surrender procedures. Further developments occurred after the entry into force of the Lisbon Treaty. The new legislation launched to implement the 2009 Roadmap was not limited to domestic criminal proceedings but aimed at extending important defence guarantees to the area of transnational criminal justice, albeit only in the field of the EAW proceedings.

After examining the contribution that international human rights law and EU law have made to the enhancement of participatory safeguards in criminal proceedings, this study provides a second comparative-law analysis. The purpose of the present discussion is to critically compare the models and common principles of a participatory understanding of criminal justice emerging from Strasbourg and Inter-American case-law, as well as from the developments that have taken place in EU law, in order to elaborate some requirements to solve the shortcomings that we observed in the national criminal justice systems under examination.

Despite the general scope of application of international human rights instruments, recourse to international human rights law to protect the individuals involved in transnational inquiries constitutes a relatively recent achievement especially in relation to mutual assistance procedures in criminal matters. The comparative analysis of the European Convention and the Pact of San José has highlighted that this result is due to a number of diverse factors. As far as the Rome Convention is concerned, the traditional approach to international cooperation as a form of administrative assistance has long prevented the European case-law from acknowledging the full application of fair trial guarantees. The main factor, moreover, was probably the manner of decision-making of the Strasbourg Court, which led it to develop case-law on several fair trial rights (from the right to be present at trial to the right to confrontation, and so on) that looks at the overall conduct of criminal proceedings. This form of assessment of the state’s legal action—aimed at evaluating whether a fundamental right, despite being initially withheld, was ensured at a later stage of the proceedings—does not fit, however, the characteristics of transborder cases, in which each country is often only responsible for a small part of a complex proceeding underway in another country.

In the light of the analysis conducted hitherto, the present discussion aims at comparing the results emerged from the study of selected countries with the solutions models provided by international human rights and EU law. In this respect, I shall now first examine the impact that the solution models provided by the case-law of the Strasbourg Court and the Inter-American Court have had, or may have in the near future, on the development of a participatory understanding of criminal proceedings in both Italy and Brazil. As regards Italy, I shall also examine the influence of EU law on the enhancement of participatory rights at the national level. Furthermore, the analysis will also examine the reasons for which the selected countries still reflect an uneven and even authoritarian view of criminal justice. The examination of this problematic area, however, is far from being unidirectional. As anticipated in Chap. 1, the ultimate purpose of this comparative study is theoretical-reconstructive. In this light, we will also examine the impact that national arrangements have had on the evolution of international human rights case-law, and on the adoption of specific solutions at the EU level.