Consiglio d'Europa
Assemblea parlamentare
Risoluzione 24 giugno 2004, n. 1388 (2004)
The Italian Law on legitimate suspicion
1. The Parliamentary Assembly recalls the importance of the proper administration of justice, in accordance with the case-law of the European Court of Human Rights, in a reasonable time and by independent, impartial judges. It attaches the same importance to the separation of powers, which is a guarantee of democracy.
2. It is with close attention, therefore, that it follows changes made to the organisation of the judiciary in Council of Europe member states. The enactment in November 2002 of the Italian Law on legitimate suspicion, known as the "Cirami law" after its author, was examined in this perspective.
3. The Cirami law introduced into the Code of Criminal Procedure the notion of legitimate suspicion as a ground for requesting the transfer of a case from one court to another. The legitimate suspicion is founded on "serious local circumstances likely to disturb the course of the proceedings". There is no limit to the number of requests for transfer on grounds of legitimate suspicion. It is sufficient to raise further grounds which may relate to facts already known that have not yet been relied upon.
4. Simply pleading legitimate suspicion brings about a stay of proceedings, pending the decision of the Court of Cassation on the merits. If the Court of Cassation finds that the legitimate suspicion is founded, it must refer the case to another court, which must reopen the proceedings ab initio. Even if the Court of Cassation finds that the legitimate suspicion is unfounded, if one of the judges is replaced in the course of the trial, the proceedings must be started again ab initio.
5. The consequences of the application of this law are the following:
i. it slows down the course of justice, whereas Italy has been condemned on several occasions by the European Court of Human Rights because of the excessive length of proceedings;
ii. it takes the case out of the hands of the "rightful" judge and virtually leaves the choice of judge to the defendant;
iii. it undermines trust in judges as a body, for unlike when the impartiality of an individual judge is challenged, legitimate suspicion tarnishes the good repute of the whole court;
iv. it is inimical to the principle of equality before the law, as only those defendants able to afford the cost of lengthy legal proceedings can avail themselves of it.
6. Therefore, with a view to avoiding the consequences of the Cirami law, the Assembly invites the Government of Italy:
i. to bring, as soon as possible, the domestic law in question into line with such guidelines and principles on securing the rule of law and the independence of judiciary as have been elaborated and approved by the institutions of the Council of Europe, including recommendations of the Committee of Ministers, resolutions of the Parliamentary Assembly and the case-law of the European Court of Human Rights;
ii. to repeal the Cirami law;
iii. to implement the recommendations of the special rapporteur of the United Nations contained in document E/CN.4/2003/65/Add.4, concerning, inter alia, judicial reform, the proceedings involving the Prime Minister and his associate, the judgments handed down by the courts and the political activities of judges.