Mandatory arrest and optional arrest
Arrest, as a measure that restricts personal liberty, is carried out by the Criminal Police against an individual who is caught while committing a criminal offence (i.e. flagranza propria) or against “whom right after committing the offence is chased by the criminal police, by the aggrieved party or by other parties, or whom is caught with things or evidence that prove he committed the offence right before” (i.e. flagranza impropria).
We differentiate between:
- mandatory arrest, that is when the Criminal Police has to mandatorily proceed with the capture in case the offender is caught in flagrante, the committed or attempted offence with criminal intent is by law punishable by life sentence or detention not less than 5 years in the minimum case and not less than 20 years in the maximum case, or otherwise, the crimes are specifically listed and characterized by preservation of the constitutional order, collective security and common decency.
In the case of crime prosecutable upon complaint, for the mandatory arrest in flagrante, it is necessary that a complaint has been filed;
- optional arrest, in case the person acting is caught in flagrante and the committed or attempted offence with criminal intent is by law punishable by detention superior to 3 years in the maximum case, or the unintentional offence is by law punishable by detention not less than 5 years in the maximum case or the offences are specifically listed.
In support of this measure, gravity of the offence or the subject's dangerousness, which may be inferred from the subject's personality or the circumstances of the case, shall subsist as supporting evidence.
The arrest may also be carried out by a private (private optional arrest) in those cases in which the arrest may be identified as mandatory or in case of in flagrante delicto punishable ex officio.
ARRESTED IN ITALY: how does the police proceed when carrying out an arrest
Made the arrest, the Criminal Police shall undertake the following duties, in compliance with Articles 386 and 387 of the Code of Criminal Procedure:
- notifying the Public Prosecutor of the place in which the arrest has been carried out;
- informing the prisoner of his right to:
1. appoint a trusted lawyer or have the possibility to be entitled to free legal aid;
2. obtain information in regard to the charges;
3. access to an interpreter for translation of relevant acts;
4. remain silent;
5. have access to the acts which the arrest is based on;
6. notify the consular authority and the family members;
7. have access to urgent medical care;
8. be brought before the judicial authority for validation, which shall take place within 96 hours from implementation of the measure (deadline by which the order shall be issued);
9. appear before the Court for the interrogatory;
10. bring proceedings before the Court of Cassation against the order which decides on the arrest validation.
- immediately informing on the arrest the trusted lawyer eventually appointed or the Public Prosecutor's appointed lawyer;
- making the prisoner available to the Public Prosecutor, not later than 24 hours;
- drafting the arrest record and forward it to the Public Prosecutor who has ordered the measure, if different from those of the place in which the measure has been carried out, not later than 24 hours;
- notifying the family members, upon consent of the prisoner.
Once the arrest has been implemented and the prisoner has been made available to the Public Prosecutor, the latter has precise duties, including proceeding with the interrogatory. Once concluded the interrogatory, if the Public Prosecutor is unable to release the prisoner, he will ask for arrest validation to the competent judge for preliminary investigation of the place in which the arrest took place.
The participation of the Public Prosecutor to the validation hearing is optional, therefore, in case the Public Prosecutor decides not to participate, he will forward to the judge his own requests regarding the personal liberty of the person arrested and will define the elements underpinning his requests.
In regard to the validation hearing, the judge for preliminary investigation shall be required to schedule it within 48 hours from the Public Prosecutor's request of validation by notifying without any delay the:
- Public Prosecutor;
- Defence attorney (whose participation is necessary);
- Person arrested.
The judge for preliminary investigation will question the prisoner, if present, with his defence attorney. At this stage, the Public Prosecutor may:
- validate the arrest by order (i.e. validation order);
- not validate the arrest.
In both cases, it is possible for the prisoner (in case of validation) and for the Public Prosecutor (in case of non-validation) to appeal the decision before the Court ofCassation.
The arrest shall lapse if the validation order is not pronounced/filed within 48 hours from the moment in which the person arrested is made available to the Judge.
Since the validation order is a measure for judicial review of the Public Prosecutor's detention order, if the judge does not apply a coercive measure in conjunction, he shall be required to order immediate release.
ARRESTED IN ITALY: appeal against the precautionary measure, appeal before the Review Commission (i.e. Tribunale del Riesame)
Against the decision of applying a personal or real precautionary measure, the defender attorney may appeal before the Review Commission, that shall have jurisdiction in respect of the matter.
More specifically, the defence attorney may appeal before the Court:
- ex art. 309 of the Code of Criminal Procedure, within 10 days from implementation of precautionary measure;
- ex art. 310 of the Code of Criminal Procedure (on Appeal before the Review Commission) within 10 days from the measure disposed by the judge for preliminary investigation that has dismissed a request for annulment or replacement of precautionary measure.
In conclusion, it shall be pointed out that the defender attorney at any time may submit to the judge for preliminary investigations the request or the annulment of replacement of precautionary measure.
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