18 May defense investigations

The investigative activity carried out by the defender has some specific peculiarities that distinguish it from that of the public prosecution:

• it is purely optional, as opposed to the typical compulsory investigations of the Public Prosecutor;
• has a unilateral purpose, in the sense that it aims exclusively at the defense of the client, where the Public Prosecutor, ex art. 358 c.p.p. must also carry out investigations in favor of the suspect;
• it has no coercive powers (eg, differently from what happens with respect to the Public Prosecutor, the person informed of the facts has the right not to respond if a statement is requested by the defender).

In carrying out this activity, the defender must observe the rules of the Forensic Code of Ethics, with particular regard to the duties of probity, loyalty, competence and truth in compliance with the principle of procedural loyalty and as a guarantee of the real dialectic of the procedure.
To acquire news, not just the defender, but also the substitute, investigators and technical consultants, they can confer with people able to report useful circumstances for the purposes of the investigative activity. This is the so-called. interview for which the law requires that the acquisition of information takes place through an undocumented conversation.
Unlike the informal interview mentioned above, in case of a request for a written declaration, or obtaining written information (or formalized acquisition tools), which must be recorded in accordance with the procedures set out in art. 391-Tue, the legislator has provided that the subjective legitimacy is, instead, limited to the defender or his substitute only.
Even the substitute, however, must be in possession of the necessary professional qualification (Cass. pen. 20/06/2016, n. 25431, that, in application of this principle, considered the documentation of defensive investigations carried out unusable, as part of a procedure under the jurisdiction of the Court in collegial composition, as a trainee lawyer not authorized to practice before the aforementioned judicial body).
In no case, then, the technical consultant or private investigator will be able to acquire a statement
written or take information from people informed of the facts: the only modality allowed to them is that of the interview.
Given that neither the suspect nor the suspect will be able to attend the information gathering, nor the offended person, nor the other private parties (comma 8), art. 391-bis enumerates the warnings that, in any case, they must be given to people informed of the facts viz:

• your quality and purpose of the interview;
• if they intend to have an interview, or receive statements or take information by indicating, in this case, the methods and form of the documentation;
• of the obligation to declare whether they are investigated or charged in the same proceeding or in a related or connected one;
• the right not to answer or not to make the declaration;
• the prohibition to disclose any questions and answers possibly formulated by (and provided to) Judicial Police or Public Prosecutor (in which case, the fourth paragraph establishes the ban on asking for information on questions and answers);
• of the criminal responsibilities related to a false declaration (the reference is to the crime pursuant to art. 371-ter c.p.) In the summary information provided pursuant to art. 391-Twice c.p.p., the defender has, Furthermore, the obligation, under penalty of nullity, to give notice to the next of kin of the accused regarding their right to refrain from testifying (Cass. pen. 08/10/2013, n. 41484).

If the person from whom to receive information is under investigation or accused, notice must be given, at least 24 hours before, to his defender whose presence will be necessary; for the eventuality the subject does not have it will be the Judge, at the request of the defender, to appoint an official.
In the proceedings pursuant to art. 351, like 1-ter, c.p.p., where there is a need to acquire information from minors, the defender will have to make use of the help of an expert in child psychology or psychiatry.
As regards the methods of convocation, the code does not provide for any specific formalities to be respected which determines, at least in the abstract, the possibility of even an oral call (with the only exception of the defender of the accused / suspected who must be invited at least 24 hours before the act, in a formal way).
The sanction foreseen for failure to comply with the provisions referred to in the previous paragraphs is twofold:

• unusability of the information thus acquired;
• disciplinary offense for the defender (in this case it is the Judge who communicates it to the body holding the disciplinary power).

Another eventuality that may occur in practice is that of the need to acquire information from a detained person; in this case the defender must obtain an ad hoc authorization from the judge who proceeds, after consulting the defender and the Public Prosecutor. Before the exercise of the criminal action, the competence belongs to the G.I.P.; during the execution of the sentence will be, instead, of the Surveillance Magistrate.
The defender must stop taking information if the person makes statements showing evidence of guilt against him; in this case, the statements previously made cannot be used against him.
Before the defender, the person informed of the facts has the right not to respond or not to make the statement.
In this case, the defender has a twofold alternative:

1. or asks the Public Prosecutor to arrange for a hearing (which must take place within 7 days from the request, term considered purely ordinatory), provided that they are not persons under investigation or accused in the same proceeding or pursuant to art. 210 c.p.p.; in this case, the defender will participate in the hearing with the right to ask questions first; the defender must specify the subject of the hearing (i.e. the circumstances about which he intends to hear the person and the reasons why he believes are useful for the investigation, Cass. pen. 06/12/2006);
2. or asks that testimony be taken in the forms of an evidentiary incident, even outside the hypotheses provided for by art. 392, comma 1; this is a probative incident, just saying, abnormal, as not justified by the so-called. danger in delay. For the eventuality, the defender intends to receive a written statement, the legislator has set specific rules, or:

• the declaration must be signed by the declarant, with signature authenticated by defender, or by a substitute,
• the defender will have to draw up a report, to which the declaration will be attached, which must contain:

a. the date on which the return was received;
b. their personal details and of the person who issued the declaration;
c. the attestation of having addressed the warnings pursuant to art. 391-to (to about, it is to be specified that, despite the silence of the law, it is commonly believed that in the minutes relating to the information there must be the warnings pursuant to paragraph 3 dell’art. 391-Twice c.p.p.);
d. the facts on which the declaration relates.
The information is documented by the defender or his substitute who can also use their trusted persons for the material drafting of the report..
The Public Prosecutor, in the presence of specific needs relating to the investigation activity, can , with a reasoned decree, forbid those who have been heard from communicating the facts of the investigation of which they are aware, for a duration not exceeding two months (art. 391-quinquies). For this hypothesis, is, But, It is necessary for the Public Prosecutor to communicate this prohibition to people, correlatively informing them of the criminal consequences arising from the violation of the same obligation.
The defender has the right to ask the Public Administration, at their own expense, useful documentation for investigative purposes; in this case he will have to address his request to the Administration that formed the document or that holds it permanently. In case of refusal by the Administration, may ask the Public Prosecutor to seize the document which is last, if it believes it cannot accept the defense request, will have to transmit the request, complete with their opinion, to the Judge for preliminary investigations to decide.
Finally, the defender (the substitute and the auxiliaries pursuant to art. 391-to) they can view the state of places or things, proceed with their description and carry out technical surveys, graphs, floor plans, photographic or audiovisuals.
Then, they can draw up a report in which they are reported:
1. the date and place of access;
2. their personal details and those of the other parties involved;
3. the description of the state of places and things;
4. an indication of any findings that are an integral part of the deed and are attached to it.
The minutes must be signed by the attendees.
In case you need to access private places or, However, not open to the public and there is no consent from those who have the availability, at the request of the defender, the Judge authorizes access with a reasoned decree that cannot be challenged, which specifies the modalities. In this case, the person referred to in the first paragraph is advised of the right to be assisted by a trusted person as long as they are readily available and suitable pursuant to art. 120 c.p.p. Limited to places of residence and their appurtenances, access will be permitted only in cases where it is necessary to ascertain the traces and other material effects of the crime.
Lastly, it is worth remembering that the defender and his assistants have no obligation to report, not even in relation to the crimes of which they became aware in the course of the activities they carried out (art. 334-Twice c.p.p.).
The defender or his auxiliaries have the right to carry out investigations even as a preventive measure, or for the eventuality of criminal proceedings (art. 391-nonies c.p.p.).
It deals with, then, of the activities coinciding with those that can be carried out in the context of procedural defensive investigations; even if carried out in advance, evidently, it will be necessary to follow the forms indicated in articles. 391-until ss., under penalty of their unusability.
Acts that require the authorization or intervention of the Judicial Authority cannot be carried out in advance, or those provided for by art. 391-to, paragraphs 5, 7, 10 ed 11, del 391-quater, comma 3, del 391-seven times from del 391-millions, comma 3.
To be able to carry out this activity, the defender must have previously received a specific mandate, with authenticated signature, which must contain the appointment of the lawyer and an indication of the facts to which it refers. How many, in the end, the usability of such documents, the circumstance that an ad hoc discipline has not been dictated, makes the thesis preferable, proposed by several parties, for which this data would be emblematic of the legislator's will to equate these to "ordinary" defensive investigations.
The law 397/2000 also provided that the defender can form and submit to the Judge for preliminary investigations his own dossier where he can bring together the evidence in favor of his client; to about, indeed, art. 391 options dispone, in the first paragraph, that during the preliminary investigations and the preliminary hearing, the defender, when the Judge has to take a decision with the intervention of the private party, he can directly present the evidence in favor of his client.
And again, in the second paragraph, it is expected that, always during the preliminary investigations, the lawyer who has knowledge of criminal proceedings, he can present the elements in favor of his client directly to the Judge, where the latter has to take a decision for which the participation of the party is not envisaged.
Such documentation, in original (or in copy, where the defender requests the return of the original) is included in the file of the defender who is trained and kept in the office of the G.I.P.; after the closure of the investigation, the defender's file is included in the one pursuant to art. 433 c.p.p. The Public Prosecutor has the right to view and extract a copy of this documentation, before the judge makes his decision.
The defender can, in any case, submit to the Public Prosecutor evidence in favor of their client (art. 391-gs, comma 4, c.p.p.).
Defense investigation documentation can be used, in the trial context, pursuant to art. 500, 512 e 513 c.p.p. (art. 391-a million).
In the case of documentation of non-repeatable acts formed on the occasion of access to the places presented during the preliminary investigations, it is included in the dossier pursuant to art. 431 c.p.p. (art. 391 a million, comma 2).
In the case of unrepeatable technical assessments, the defender must notify the Public Prosecutor, without delay, so that the latter can exercise the faculties pursuant to art. 360 c.p.p. ; in other cases of non-repeatable acts, the Public Prosecutor, personally or after delegation to the judicial police, has the right to assist you (comma 3). The report of the investigations ex comma 3 e, in the eventuality the P.M. saw watch, the documentation of the acts performed pursuant to paragraph 2, are inserted both in the file of the defender, both in that of the Public Prosecutor.