27 Jan summary proceedings
The Code of Criminal Procedure, all’art. 438, defines the abbreviated procedure as a judgment on the merits of the guilt or innocence of the accused, which takes place in the preliminary hearing or during the conversion of another special rite.
This ritual, indeed, is characterized by the exclusion of the hearing, central phase of the trial where evidence is collected and acquired in cross-examination between the parties, using for evidentiary purposes the documents collected during the preliminary investigations and which are contained in the prosecutor's file.
For this reason, before the reform “Carrots” (Law 479/1999) its nature was that of judgment “to the state of the documents” since it was established after the closure of the investigations and the exercise of the criminal prosecution: the judge's task was to evaluate only the documents collected in the preliminary investigations with a ban on any evidentiary acquisition during the hearing.
The law just mentioned introduced the possibility of acquiring new sources of evidence in two cases:
when the accused requests summary judgment “conditioned” to an evidentiary integration and the judge accepted the request;
when the judge, once the rite has been admitted, believes that he cannot decide given the state of the documents and deems it necessary to provide additional evidence aimed at acquiring evidence “the elements necessary for the decision”.
All this being said, the summary judgment is in any case a trial in all respects, which can end with an acquittal or a conviction.
Precisely because the summary judgment involves renouncing the trial phase and its solid guarantees, the judge has the obligation to accept the request for summary judgment and the only one who can waive it is the accused; also the PM, after the Carotti Law, he no longer has the power to consent or not to the choice of this rite.
The summary judgment offers the accused an advantage in terms of sanctioning treatment since, in case of conviction, he benefits from a flat reduction of his sentence (custodial and pecuniary) one third for crimes and one half for contraventions.
The request for an abbreviated procedure, following the introduction of the paragraph 1 bis dell’art. 438 c.p.p. by Law no. 33/2019, cannot be admitted for crimes punishable by life imprisonment: prohibition that, But, it does not apply to trials relating to facts committed before the entry into force of the law itself.
Exist, in our system, two types of request for summary judgment:
ordinary summary judgment (ex art. 438 comma 1 c.p.p.), for which the Prosecutor cannot express any dissent and the judge has the obligation to celebrate it;
conditional summary judgment which allows the accused to subordinate his request to the taking of one or more further evidence, expressly indicated. The judge, only in this case, he is not obliged to arrange the ritual but must evaluate whether the request respects the rationale of the same (the abbreviated procedure was introduced precisely to make the definition of the process quicker, in compliance with the principle of procedural economy). It will therefore be possible to reject the request when the requested evidence is deemed irrelevant or inadmissible or when its assumption would cause procedural overload. (if you think, for example when examining a large number of witnesses). In the case of acceptance of the request for summary judgment and evidentiary integration, the prosecutor is entitled to ask for proof to the contrary.
Keep in mind that both types of abbreviated procedure allow the interrogation of the accused as an expression of the right of self-defense, the elimination of which determines a nullity in the intermediate regime.
The recent Cartabia Reform has made several changes to the art. 438 comma 5 c.p.p., in particular it expanded the conditions for accessing conditional summary judgment: “taking into account the documents already acquired and usable”, the judge “disposes and accepts the request if the procedure meets the needs of procedural economy in relation to the foreseeable times of the hearing”.
The first paragraph constitutes a codification of the principle widely expressed by the jurisprudence of legitimacy according to which the request for conditional abbreviation should be rejected whenever it takes the form of “mere reiteration of an investigative act already carried out during the investigations”. On the verge, indeed, the jurisprudence of legitimacy has held that, for the purposes of admission to conditional summary judgment, “the need for evidentiary integration exists when the requested evidence meets the requirements of novelty and decisiveness, assuming, therefore, on one side, the incompleteness of evidentiary information in documents, e, on the other, a prognosis of objective and certain usefulness, or suitability, of the probable outcome of the investigative activity required to ensure complete ascertainment of the facts of the case (cfr. Cass. Pen., sez. II, 10 November 2020, n. 10235, Rv. 280990)”.
Another fundamental innovation in terms of rewards, always with a view to defining processes more quickly, reduce the work of judicial offices and above all limit the formulation of dilatory appeals, is the introduction of paragraph 2bis of the art. 442 c.p.p., according to which “when neither the accused, nor his defense attorney have lodged an appeal against the conviction, the sentence imposed is further reduced by one sixth by the executing judge”. This modification must be read in light of the changes made to the art. 676 c.p.p. which includes the issue of sentence reduction among the “other skills” of the executing judge.
Access to conditional summary judgment is certainly much easier today, but only time will show us the repercussions on the overall balance of the criminal trial and whether the objectives that the Reform set for itself have been achieved., also and above all in terms of access to summary judgment.