Justice in centre stage of the reforms to be made: the end of the statute of limitations must be reconsidered. Examples from the rest of the world.
By Gianni Pezzano
There are fundamental aspects of the Law that we try to follow within their essential limits, each country and every individual follow them according to their past. Three of these are truly vitally indispensable and are the basis for the system of government and law of each country, unfortunately often more in the breech than in the observance. In the case of the lack of respect and observance, or even disobedience to them, they then become the basis for the formation of dictatorships. These concepts are Liberty, Democracy and Justice. These themes are contained within the constitutions of modern democracies and we consider them important for out style of life. Naturally all three cannot be considered in one article, however there are some aspects of the third concept, that of Justice, that must be reconsidered in Italy and it may help to look at how they are applied overseas. One particular aspect of this concept is currently subject to review in parliament and over the years it has been the source of controversy in many trials and is the true theme to be tackled, the end of the Statute of limitations.
In English there is a saying, “Justice should not only be done, it must be seen to be done. In other words, decisions by the legal system must be clear, transparent and certain, which often do not occur within the Italian legal system and thus the attempts at modifying the court process. Each crime has a statute of limitations which defines the time within which a suspect must be identified, investigated, charged, put to trial and a definitive sentence handed down and this time limit varies according to the gravity of the crime. Unfortunately this is often not the case within the Italian legal system and we all know of trials that ended without a result as the time limit had expired.
We must recognize one fundamental fact before we proceed. A trial begins because there is sufficient evidence against a person under investigation to justify a trial. This does not mean that the person charged is automatically guilty and so it is up to the trial to establish the foundation of the accusations and the evidence. In other words, the trial should identify the guilty and the innocent and this does not happen when a trial ends due to the expiry of the time limit. This incapacity to end a trial in a clear manner has had two effects on the Italian legal system. Obviously the first is the mistrust of the public in its legal system. The second is seeing defense attorneys delay trials to reach the expiry of the time limit, delays which then cause more backlogs in trials further blocking the work of the courts. Nobody proposes the abolition of the time limits, but it would be useful to see what is done overseas in order to help find a solution.
In the English speaking countries the time limit applies only to the phase of investigations following a crime which means that at the moment a formal charge is laid against a suspect that the time limit no longer applies and the trial must proceed until a definitive sentence is handed down. In fact, in the case of the most serious crimes such as murder, kidnapping and high treason there is no time limit and therefore there is no problem of expiry. The fact that no time limit will be applied after the formal charges are laid, or after a first degree sentence as some suggest in Italy would guarantee that a trial could proceed to definitive sentence.
This would not be simply of reform of procedure, but of substance. Any person charged should be considered innocent until proved otherwise and a trial that finishes due to expiry of the time limit means that the person charged would always be followed by the doubt of guilt or innocence. And this too has a solution overseas, but we must remember that not all the foreign cases are applicable due to the limits set by the Italian constitution.
In other countries and in particular those English speaking countries often used as examples there exists the concept of “double jeopardy” which means that if a person is found innocent of a crime then he or she will no longer be charged for this crime. Effectively this means that the prosecutor has only one draw of the bow and if that fails it would not have the opportunity to proceed with the case, except for exceptional and very rare cases. The only true appeal possible is by the defence and the only appeal allowed the prosecution is in relation to those cases where the punishment given by the court does not suit the gravity of the crime. We must recognize that double jeopardy is not possible in Italy as the Constitutional right to “equity of treatment” extends to criminal cases.
At the same time this allows us to look at other cases and thus to understand what often happens in famous trials overseas. It is due to double jeopardy that we see investigations overseas that do not finish in court. In fact, often the police and the prosecutors announce the intention not to proceed to trial in certain cases because the evidence against the person under investigation is not sufficient to guarantee a conviction. Currently there is a famous trial in the United States that shows this situation quite well and it is the trial against the famous comedian Bill Cosby where there was not enough evidence against him. In the meantime the investigators continued their activities over the years because they knew that a formal charge within the statute of limitations would have guaranteed a trial in any case.
Another trial that shows how to proceed in a trial within these limits is the case of the Italo-American gangster Al Capone. We often hear the joke that he was jailed for tax evasion and not for the murders that he had ordered, however if we bear in mind what was stated above the federal authorities seeking him had no other choice to be able to put him in jail. Capone was clever and never personally gave the orders to murder his rivals. This was always the responsibility of his accomplices, particularly of the infamous Frank Nitti. In addition, murder was the responsibility of the state police, particularly in Capone’s stronghold of Illinois where many were in his pocket and therefore any trial risked being sunk with the real risk that he would have become untouchable. So the federal authorities made the decision to investigate him for tax evasion well aware that they would have found sufficient proof to convict him, as they went on to do. Another interesting case was that of Lucky Luciano who met the same fate in the sense that he was not jailed for murder, but on charged in relation to a brothel, even though over time it became known that the charges against him had been faked.
Another interesting overseas example for finding a solution to the Italian situation is in the Scottish legal system where the juries have three possible decisions. Naturally the first two are guilty, or innocent, but the third avoids the possibility of double jeopardy because it leaves open the possibility of another trial and so the third possible decision is not proven.
As with any human invention the Justice system is not perfect, each system reflects the virtues and the imperfections of those who designed it and only the passage of time shows which aspects to modify to make them more efficient.
Unfortunately, we sometimes think that anything done in the past is untouchable, but this should not be so. In the course of our lives we have seen enormous social and technological changes that could not have been predicted by the legislators even only a few years ago. In effect, some of these changes linked to the identification of DNA have had consequences in the court system that could be the reason for some countries to revise the concept of double jeopardy that we have considered. But our natural conservatism must not stop us from amending those aspects of our systems that we know have defects. Justice, like Liberty and Democracy is one of the pillars that enshrine the equality that we demand as a guarantee that our lives are truly free.
Therefore, let’s not oppose any changes for the simple reason that anything from the past in sacrosanct. If the founding fathers had thought in this manner our constitution would never have been born.