What’s wrong with Italy’s legal system, when someone like Amanda Knox can be tried for murder, convicted, acquitted on appeal, and then convicted again? It appears from this column from Italy’s Diritto – a legal blog – that Italians are just as baffled about it as Americans. The reason, according to legal scholar and former politician Davide Giacalone, is that since 1988, Italy has adopted a mixture of common law, which is followed in the U.S. and Britain, and civil law, which is prevalent in mainland Europe. The result: in Italy, double jeopardy – when a defendant is convicted for a crime they were first acquitted for – is more than a remote possibility.
From Diritto, Davide Giacalone, begins his explanation of the muddle called Italian justice this way:
Try and explain it.
Try explaining to an American that a defendant can be convicted, then acquitted, and convicted again, while still waiting for a final verdict, and, in the meantime, put in jail for four years. Whether you explain it to an average man on the street or a distinguished jurist, he will look at you as if you are a savage from some superstitious, godforsaken tribe. It goes without saying that if one of their citizens, like Amanda Knox, were to find herself convicted by such a mechanism, sending her back would be out of the question. This is somewhat paradoxical, because when it came to one of our citizens, whom they convicted (Silvia Baraldini), they didn’t want to return her because they were convinced she would be released. When they finally surrendered her, the justice minister (Oliviero Diliberto) welcomed her at the airport as if she had returned from the Gulag. So, rightly, they see us as a tribe that is not only unreliable, but provocative.
The good thing (so to speak) is that we remedied such regrettable issues with Law No. 46 of February 20, 2006 – better known as the Pecorella Act. The act established that in cases of acquittal, the prosecution may only appeal to the Court of Cassation [which rules on trial procedure rather than evidence]. The reasoning was simple: in 1988 the Criminal Code adopted the accusatory model [Americans would say the “adversarial model”], which establishes that a conviction can only be imposed when there is no “reasonable doubt” of guilt. So if a tribunal or court has already acquitted a defendant, then it is quite obvious that from that point forward, there is a reasonable doubt.
The Pecorella Act was sent back to the legislature because the president of the republic (then Carlo Azelio Ciampi) had doubts about it. Yet it was approved again and enacted. Then the Constitutional Court, with three coordinated judgments, tore it to pieces. The underlying reason: the trial process must be taken as a whole, so if they acquit you on your first or second appeal, you’re still not considered innocent, because one must wait for the entire legal process to conclude. In a process wherein the parties to the trial must be equal – if the defense can file an appeal, so, too, can the prosecution.
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