‘Between crime-fighter and judge: a study of the legal and cultural influences on the pre-trial role of the Italian prosecutor with particular reference to the definition of the crime problem’ UMI Number: U585174 All rights reserved INFORMATION TO ALL USERS The quality of this reproduction is dependent upon the quality of the copy submitted. In the unlikely event that the author did not send a complete manuscript and there are missing pages, these will be noted. Also, if material had to be removed, a note will indicate the deletion. Dissertation Publishing UMI U585174 Published by ProQuest LLC 2013. Copyright in the Dissertation held by the Author. Microform Edition © ProQuest LLC. All rights reserved. This work is protected against unauthorized copying under Title 17, United States Code. ProQuest LLC 789 East Eisenhower Parkway P.O. Box 1346 Ann Arbor, Ml 48106-1346 DECLARATION This work has not previously been accepted in substance for any degree and is not concurrently submitted in candidature for any degree. Signed .... (candidate) Date.?. .^.J STATEMENT 1 This thesis is being submitted in partial fulfilment of the requirements for the degree ofM . (insert MCh, MD, MPhil, PhD etc, as appropriate) Signed... T^TTT. (candidate) Date.?.i/f?.?.d d .. STATEMENT 2 This thesis is the result of my own independent work/investigation, except where otherwise stated. Other sources are acknowledged by explicit references. Signed. (candidate) Date..?<3./Tf?.f.d . ^.9.?.%.. STATEMENT 3 I hereby give consent for my thesis, if accepted, to be available for photocopying and for interlibrary loan, and for the title and summary to be made available to outside organizations. Signed.. (candidate) Date. $ / / ? . ?. ?.3. STATEMENT 4: PREVIOUSLY APPROVED BAR ON ACCESS I hereby give consent for my thesis, if accepted, to be available for photocopying and for interlibrary loans after expiry of a bar on access previously approved by the Graduate Development Committee. Signed. ./Z^ii^<T^./^^vJ^?>rr^-^(candidate) Date..?.. .*7. d . ^ 9 . f . .3 Abstract The Anglo-Saxon literature on Italian prosecutors (and the Italian criminal justice system in general) is limited. Moreover, the literature using a socio-legal approach and trying to understand what prosecutors do in practice is almost inexistent. This study seeks to fill, partially, this gap. Legal actors are, obviously, an extremely important focus for those who intend to study criminal justice and criminal procedure. Legal systems are applied and interpreted (translated to use Langer’s words) according to different legal cultures. Amongst the judicial actors who appear to be, legally, in the position to determine the way the legal system works there are prosecutors. Prosecutors carry out many functions and, in Italy, they are involved from the beginning of the investigation till the end of the trial. In other words: Italian prosecutors play a very important part during both the pre-trial and trial phase. We will concentrate on the former trying to answer one main question: what prosecutors do in practice? In particular, this is a study of the legal and cultural influences on the role and function of Italian prosecutor with particular reference to their gate-keeping role. In this sense the thesis brings out the distinctive impact of both the legal framework and prosecutors’ professional culture and identity on the prosecutors’ capacity to mediate of ‘crime control’ policies. While we will study this we will also analyze Italian prosecutors’ legal and professional culture and their relationship with the police. This will be crucial to understand the way prosecutors take gate keeping decisions. The analysis of the Italian case seems to be very important. It shows that, when it comes to definition of the crime problem, prosecutors still play an important and distinct role. Important because their decisions still influence the definition of priorities (i. e. they do not seem to be mere executors of anticrime policies). Distinct because prosecutors appear to be able to mediate the impact of external influences. So. they have a (partially) different idea of priorities compared to the dominant political culture. This puts them in a different (distinct) position. To sum up: in Italy the prosecutors’ role during the pre-trial phase of being ‘between’ crime fighter and judge is visible. There is room for prosecutors’ choices and decisions. To corroborate this thesis we used the examples of street crime, immigration and the impact of moral panics on prosecutors’ decisions. These are all issues which concern very much the “fight against insecurity” which is considered, in the western capitalistic countries, a crucial problem for the central state, the public and the media. We will try to demonstrate that, although Italian prosecutors are affected by the “problem of security” and, certainly, can not block the evolution (or involution) of the criminal justice system, they are in the position to limit the impact of these external influences. Acknowledgments I would like to thank those who supported me during these four great years. My parents, because they believe in me and always encouraged me to do something different. My friends, because they shared with me the joy and the pain of doing a PhD. I am sure I will forget someone, please forgive me. Dr. Elen Stokes, Dr. John Coggon, Dr. Richard Williams, Mr. Mauro Barelli and Mr. Ho-Sam Bang, because they have been wonderful colleagues. Ms. Annette Morris and Dr. Lewis Bott, because they taught me a lot about academia (and I was teaching about wine and food). Obviously, the three wonderful ladies: Sharron Alldred, Helen Calvert and Sarah ‘Google’ Kennedy, because they helped me through the administrative jungle that comes with the PhD full package. I am also deeply thankful to the Cardiff Law School for giving me the opportunity of doing a doctorate. And I also want to thank my very first tutor in Cardiff Prof. Thomas Watkin, who has always given me very valuable advice in the last ten years. The examiners, Prof. John Jackson and Prof. David Miers and Prof. Richard Lewis who chaired my viva. I learnt a lot while I was defending my thesis. Finally, I must thank all the persons that helped me with my research. In particular: Mr. Francesco Parisoli, Prof. Valerio Marotta, Ms. Maddalena Padovan, Mr. Antonio Colonna and Ms. Lucia Russo. I did not forget my supervisors: Dr. Stewart Field and Prof. David Nelken. They have been patient with me and taught me a lot. It has been a privilege to work with them. I will not forget it. Comparative law, especially the study of legal institutions and procedures, should be ranked among the most illuminating branches of legal science. When teaching a course that emphasizes comparative procedure, I remind students of the justification that was given them when they were asked to learn Latin in school: We study Latin to learn English. So with comparative law... The purpose of comparative study is to help understand what is distinctive (and problematic) about domestic law. John H. Langbein (“The Influence of Comparative Procedure in the United States” 43 American Journal o f Comparative Law, 545) To Mum and Dad, my teachers and my friends, with admiration CONTENTS Abstract Acknowledgments Table of cases ...........................................................................................................................v Table of statutes ..................................................................................................................... vi List of abbreviations ............................................................................................................. xv CHAPTER I. INTRODUCTION: SUBJECT, PURPOSE AND STRUCTURE OF THIS STUDY..................................................................................................................1 1. Subject ...............................................................................................................................2 2. Purpose..............................................................................................................................3 3. Structure ............................................................................................................................6 CHAPTER II. THE PROSECUTOR IN CONTINENTAL EUROPE AND IN ITALY IN COMPARATIVE CONTEXT...................................................................... 8 1. Introduction ........................................................................................................................ 9 2. The prosecutor in continental Europe: the fundamental characteristics according to the Anglo-American literature ................................................................................................9 3. The prosecutor in Italy: the English literature ............................................................... 14 CHAPTER III. RESEARCH AND METHODOLOGY............................................19 1. Researching on the Italian prosecutor............................................................................20 2. Methodology..................................................................................................................... 22 PART I: THE LEGAL AND SOCIO-POLITICAL CONTEXT CHAPTER IV. THE LEGAL CONTEXT....................................................................27 1. Introduction ..................................................................................................................... 28 2. The legal framework