The right to take part personally in criminal proceedings, although not expressly provided at a Constitutional level, is an expression of the principle of a fair trial upheld by Article 6 of the ECHR and translated into Article 111 of the Italian Constitution. In the course of years, the CCP, also following some condemnations by the Strasbourg Court, underwent several modifications aimed at implementing principles and conditions affirmed by the ECHR that can legitimate proceedings in absentia of a defendant. This study is structured into different parts. In the first, an analysis of national rules concerning the participation of a defendant and other private parties at each stage of proceedings is provided. It reveals that the right to participation is less guaranteed in proceedings – such as proceedings in front of the Supreme Court – where the technical character of questions involved do not require the personal contribution of parties, the activity of a defence lawyer being sufficient. A matter of concern is the recent reform regarding participation by means of videoconference: according to our legislators “video” participation should become a rule for certain categories of defendants, therefore undermining the right to self-defence. In the second part, the structure of in absentia proceedings, following a reform introduced in 2014, is examined. Notwithstanding good intentions of legislators, it remains possible to celebrate proceedings in absentia also in cases where it is not certain that a defendant has received notice of the request for committal to trial. In this regard, the remedy is appreciable, introduced by the same legislators, and recently modified, which works after a conviction against an inculpable absent has become res judicata, by which judgment is quashed and the case file is forwarded to the first instance judge, with the possibility to request special proceedings (such as a summary trial and an application of penalty upon request of the parties). In the third part, the right to participation in the field of transnational criminal justice is analysed, where new instruments adopted at EU level, such as the EIO, recently implemented in Italy, represent a lost opportunity in order to make effective the principle of equality of harms, from the perspective of the defence.
|Title of host publication||Personal Participation in Criminal Proceedings. A Comparative Study of Participatory Safeguards and in absentia trials in Europe|
|Number of pages||49|
|Publication status||Published - 2019|