CLAIMS FOR DAMAGES FOR UNFAIR DETENTION IN ITALY: PREREQUISITES
Compensation for the damages caused by unfair detention in Italy is governed by Articles 314 and 315 of the Criminal Procedure Code.
The fundamental prerequisite for obtaining a compensation is that
a person has been remanded in custody prior to the trial (unfair detention), because held responsible for a crime, but at the conclusion of the
italian criminal proceedings, the same has been acquitted by a judgment which has become irrevocable.
Subjects whoare entitled to obtain a compensation include:
- who has unfairly been imprisoned as a result of a wrong order of execution;
- who has unfairly been remanded in custody prior to the trial on the basis of a order issued or maintained in the absence of the requirements provided by the law.
CLAIMS FOR DAMAGES FOR UNFAIR DETENTION IN ITALY: PROCEDURE
Whoever has suffered an unfair detention in Italy has a real right to obtain compensation.
The claim for compensation related to an unfair detention must be made by the party concerned, by means of an appeal before the relevant Court of Appeal, namely at the Registry of the Court of Appeal of the district where the judgment or the decision to withdraw the proceedings has been delivered. The Court of Appeal of the district, in which the contested measure was issued, is competent in the case of a judgment issued by the Court of Cassation.
A decision about the application will be taken by the Court of Appeal with a procedure in Chambers.
Any application related to an unfair detention in Italy must be filed (on penalty of inadmissibility) within two years:
- from the day on which the judgment of acquittal or conviction became irrevocable;
- since the decision do not proceed to judgement has become final;
- since the decision to withdraw the proceedings has been notified to the person concerned.
According to Article 315 of the Code of Criminal Procedure, the amount of compensation cannot exceed the sum of 516,456.90 euro.
The assistance of a lawyer with a special power of attorney is compulsory for this proceeding and if the party satisfies the financial requirement provided by the law then he will be entitled to require the legal aid at the expense of the state.
In the event of the death of the person who has been unfairly detained, the compensation will be received by the spouse, descendants and ascendants, brothers and sisters and relatives within the first degree and persons linked by an adoption to the dead person.
COMPENSATION FOR UNFAIR DETENTION IN ITALY: RECOVERABLE DAMAGES
Familiar and personal consequences deriving from an unfair detention can be heavy for a person.
With a recent judgment number 7787/2016, the Court of Cassation clarified what damages are recoverable for an unfair detention.
According to the Court of Cassation, "the damages caused by the unfair detention cannot be considered as just related to those temporarily linked to the period of imprisonment". As matter of fact it is necessary to have regard not only to the damages caused to the property or the health of the person imprisoned but also to those related to himself, to his external relationships and his family.
It is admitted the compensation for non-pecuniary damages in the form of moral damage (moral and psychological suffering), biological damage, seen as the impairment of the psychophysical health of the subject and the existential damage (consisting in the change of his familiar relationships).
Also the compensation for financial damage is admitted.
Lastly it has been recognised also the right to be reintegrated into employment to the person who has been dismissed and then acquitted in a final judgement,or notified with a decision do not proceed to judgement or to withdraw the proceedings.
Have you suffered a damage from an unfair detention in Italy? Would you like to obtain justice? Please contact us to receive advice.
