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.

1. Pre-trial detention related
compensation claims in Italy
Nicola Canestrini
Fair Trials LEAP annual conference
2017, Athens

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. 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. approx. 30% prisoners
in PTD

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. 995 cases
€ 35.248.358,59
2014

9. “gross negligence of unlawful detained defendant”
use of the right to
silence?
It. Supreme Court,
Grand Chamber,
judgment n.
51779/2013

10. www.canestriniLex.com
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