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Pretrial detention compensation. The Italian experience

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Unlawful pretrial detention undermines mutual trust necessary to bolster mutual recognition, impacts on individual rights, undermines trust in fairness of criminal justice system and rule of law. May a common compensation regime help to reduce unnecessary or unlawful pretrial detention? The Italian experience.

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Pretrial detention compensation. The Italian experience

  1. 1. Pre-trial detention related compensation claims in Italy Nicola Canestrini Fair Trials LEAP annual conference 2017, Athens
  2. 2. Italian criminal justice system three instances “semi-adversarial” (adversarial with inquisitorial approach) prosecution is indipendent, mandatory, leads investigation no reimbursment of legal fees in case of acquittal no bail but probation <2 years conviction
  3. 3. pretrial detention in Italy request by prosecutor, ordered by a judge (in chambers), reviewed by request max. statutory conviction length >5 years. discretionary, 2 conditions: serious circumstantial evidence (“probable cause”) AND risk further offences (and/or) evidence tampering (expiration date) (and/or) abscond. “extrema ratio” lenght: phase and crime depending, maximum is fixed by law (for most serious crimes: investigation 1 year, 3 instances: 1 + 1 1/2 + 1 1/12 up to max. 6 years)
  4. 4. approx. 30% prisoners in PTD
  5. 5. PreTrial-detention COmpensation law (It. Constitution and criminal procedure code) acquittal / wrongful PTD/ PTD longer than conviction upon personal request of PT detainee not automatic time limit: 2 years max. of compensation 516.000 € quantum? standard + case by case correction rules of civil proceeding (cost refusal)
  6. 6. 995 cases € 35.248.358,59 2014
  7. 7. “gross negligence of unlawful detained defendant” use of the right to silence? It. Supreme Court, Grand Chamber, judgment n. 51779/2013
  8. 8. www.canestriniLex.com t @canestrinilex  g+ +canestrinilex f canestrinilex

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