The codes of the Kingdom of Sardinia in civil and penal affairs were extended to the whole of Italy when Italy was unified in the mid-19th century. The revised 1990 penal code replaced the old ‘inquisitory’ system with an accusatory system similar to that of common-law countries.
Besides the codes, there are innumerable statutes that integrate the codes and regulate areas of law for which no codes exist, such as public law. Under the Italian constitution, the judiciary is independent of the legislature and the executive, and therefore jurisdictional functions can be performed only by magistrates and judges cannot be dismissed.
The Italian judicial system consists of a series of courts and a body of judges who are civil servants. The judicial system is unified, every court being part of the national network.
The highest court is the Supreme Court of Appeal, which has appellate jurisdiction and gives judgements only on points of law. The 1948 constitution prohibits special courts with the exception of administrative courts and military court-martials, although a vast network of tax courts has survived from an earlier period.
The Italian legal system is inordinately complicated and most lawyers ( avvocato) and judges ( giudici) are baffled by the conflicts between different laws, many dating back centuries, and EU directives serve to complicate matters further.
There are literally thousands of laws, most of which are ignored, and newcomers must learn where to draw the line between laws that are enforced and those that aren’t or are only weakly enforced. It sometimes appears that there’s one law for foreigners and another for Italians, and fines ( multe) are commonplace.
The legal system grinds very slowly and it takes years for a case to come to court; the average time between indictment and a court judgement is ten years, and eight out of ten convictions involving prison terms never take effect. This means that you should do everything possible to avoid going to court, by taking every conceivable precaution when doing business in Italy, i.e. obtaining expert legal advice in advance.
If things go wrong, it can take years to achieve satisfaction and in the case of fraud the chances are that those responsible will have gone broke, disappeared or even died by the time the case is decided.
Even when you have a cast-iron case there’s no guarantee of winning and it may be better to write off a loss as ‘experience’. Local courts, judges and lawyers frequently abuse the system to their own ends and almost anyone with enough money or expertise can use the law to their own advantage.
Criminal Courts in Italy
The criminal legal process involves judges, tribunals and assize courts ( corte d’assise), which include juries ( giudici popolari), unlike other courts which are composed entirely of lawyers. Once a trial has been concluded and judgement passed, a party found guilty can appeal the decision to an appeal court. If the appeal fails, it may be possible to appeal to the supreme court, but only on the grounds of the wrong interpretation or application of the law by a judge.
Civil Courts in Italy
Civil justice is applied in disputes between private bodies and in some cases also between private and public administrations. Civil justice is dispensed by justices of the peace ( giudici conciliatori/guidice giudice di pace), judges ( pretori), tribunals ( tribunali), appeal courts ( corti d’appello) and the supreme court ( corte di cassazione).
The conciliatori and pretori are single-person organs, while the tribunali and corti are collective organs comprising variable numbers of members. A justice of the peace generally has jurisdiction in all civil law cases concerning property up to a value of €2,600 (similar to a small claims court in other countries).
Administrative Courts
Administrative courts have two functions: the protection of legitimate interests ( interessi legittimi), i.e. the protection of individual interests directly connected with public interests, and the supervision and control of public funds. Administrative courts are provided by the judicial sections of the council of state, the oldest juridical-administrative advisory organ of government.
The court of accounts has both an administrative and a judicial function, the latter primarily involving fiscal affairs. The losing party has the option of requesting a review of the entire case by the council of state ( consiglio di stato) in Rome, whose judgement is final.
Arrest
If you’re arrested in Italy, you have no right to see a lawyer ( avvocato) before a hearing before a judge, but may give the name of your lawyer in writing. You have the right to silence and need only state your name, date and place of birth, and whether you’ve been arrested in Italy before. You have the right to notify your local consulate, who can provide the names of lawyers who speak your language.
You can be held for a maximum of three days before a hearing, when you must be represented by a lawyer (if you don’t provide a lawyer, one will be appointed by the court), after which you’re usually permitted to go free provided you’re deemed unlikely to flee, be a danger to society or destroy evidence. In serious cases it can be difficult to obtain bail and you can be held for up to three years without trial!
Lost Property or Documents
If you lose or have something stolen in Italy, you should make a report ( denuncia) to the carabinieri nearest to where the incident occurred, rather than in the town where you live. Making a report is essential if you want to claim on an insurance policy, as the police report constitutes evidence of your loss.
This article is an extract from Living and Working in Italy. Click here to get a copy now.