CONSULTATIVE COUNCIL OF EUROPEAN PROSECUTORS
Questionnaire on principles of public prosecution as regards prison administration
(Antonio Mura) March 9th, 2011
= = =
What are the Prosecution Service’s powers regarding prison matters and in terms of deprivation of liberty?
In the Italian system a Public Prosecutor does not perform general functions in prison matters and deprivation of liberty (custody and detention).
As far as these matters are concerned, the main bodies are the Judge and the Court supervising the execution of the penalty (Magistrato di Sorveglianza and Tribunale di Sorveglianza). This Judge has control and jurisdiction on prisons’ organization (he ensures that custody measures are applied in accordance with acts and regulations, checks requests and claims of the convicted persons, approves the program for the treatment of convicts and provides for releasing them on parole). The Court is composed of two professional judges and two experts in various fields. As well as the Judge, the Court performs judicial functions such as entrusting the convicted person to the social service, admitting him/her to house arrest or deciding on the above mentioned Judge’s decisions as a Court of appeal.
Public Prosecutors take part -as a public party- in cases before the Judge and the Court supervising the execution of the penalty. Depending on the procedure, they express their advice either in a verbal or in a written form and can also appeal any decision.
In States where prosecutors do not have full authority in prison matters, what are nevertheless their means of action used as regards prisons?
Normally, Public Prosecutors have no autonomous coercive powers. In prison matters they act in two different ways:
a) Enforcement of the penalty:
The Public Prosecution Office is the driving body for the enforcement of criminal punishments. When the sentence becomes final, Public Prosecutors issue an order of imprisonment and establish the exact duration of the penalty.
However, if any action is undertaken, a Judge has jurisdiction upon judicial guarantees in order to check on the legal assumptions which the conviction is based on.
a) Detention measures:
Italian Public Prosecutors lead the investigations and coordinate the action of the police criminal investigative department. Yet, except in case of urgency related to the actual risk of escape, they are not entitled to arrest the person under investigation for any reasons concerning the investigations. They can only request the Judge for the Preliminary Investigation (the so-called G.I.P.) to adopt preventive measures of detention.
After the enforcement of these measures, in special occasions Public Prosecutors may ask the Judge to increase or decrease them.
They have to express their opinion on the applications that the person under preventive measures may submit.
If prosecutors have general competences as regard prisons and detention, what kind of means have been provided to the Prosecution Service to allow its effective and fast action towards protecting human rights in matters of prison administration?
As already said in the answer to question no. 2, Public Prosecutors have no general functions in prison matters.
What are the positive and decisive elements of the prosecutor’s role in terms of protecting Human rights compared to other mechanisms of legal protection?
Public Prosecutors do not play a special role to safeguard human rights. Their intervention is restricted to verify whether crimes are eventually committed and to carry on investigations. These offenses can also be human rights violations, for example when the convict has been subject to any form of violence.
What could be the improvements to this system of protection?
In the Italian system measures improving the protection of human rights might be referred to the above mentioned Judges supervising the execution of the penalty rather than to Public Prosecutors, since those Judges represent the main relevant justice body in prison matters.
Do prosecutors have jurisdiction to examine whether the rights (Human rights and especially procedural rights) of persons in criminal (for example as regards enforcement of prison sentences or pre-trial detention) or administrative detention are respected at the detention centre?
Public Prosecutors have no competence in such cases. Nevertheless, they are entitled to check whether any crime is committed against the convicts during their pre-trial detention as well as when they are serving the sentence. In this respect Public Prosecutors lead the investigations and then they decide whether to start a prosecution.
Can a prisoner meet in private with a prosecutor to determine whether they had been subjected to torture or to any other inhuman or degrading treatment or punishment?
The Judge supervising the execution of the penalty is the main reference point for a convict, especially if he is serving a final sentence. The convict may also address himself to the Public Prosecutor to reveal a violence he has suffered. In such a case, when a crime is reportedly to be committed, the Public Prosecutor has the duty to make appropriate investigations.
Do prosecutors examine, and if so, how frequently, whether convicts have been subject to torture or to any other inhuman or degrading treatment or punishment?
Public Prosecutors haven’t got such a specific task. It lies within the responsibility of the Judge supervising the execution of the penalty. The latter has jurisdiction and performs control functions, as we have already explained in the answer to question no. 2.
What kind of means exist for prosecutors to deal with authorities or officers/employees which have not completely or properly enforced the decisions of the Court or the Prosecution Service related to punishments and/or measures involving deprivation of liberty? If a prosecutor detects such negligence, is he entitled to give binding instructions for the immediate termination of the breach of the law? Is it in their power to initiate criminal or disciplinary proceedings, actions for damages or any other kind of impeachment? What other prosecutorial instruments are at his disposal?
In these cases Public Prosecutors may only act if there is a breach of criminal law. If this is the case, they have to conduct appropriate investigations. If they find out administrative offences committed by civil servants, Public Prosecutors can point them out to the Public Authorities which might take disciplinary actions.
How often do prosecutors carry out monitoring visits of institutions of criminal and administrative detention? Are there concrete follow-ups related to these visits?
Public Prosecutors do not perform such a duty. It lies within the responsibility of the Judge supervising the execution of the penalty. The latter has jurisdiction and performs control functions, as we have already explained in the answer to question no. 2
Within the framework of their monitoring duties, do prosecutors have the power to take action at any time of the day (even at night) in the institutions of criminal and administrative detention?
As pointed out in the answer to the previous question, Public Prosecutors do not have general supervising powers. Nevertheless, if special investigations are needed for crimes committed inside prison walls, Public Prosecutors may carry out inspections and searches (at any time of the day and without notice) as provided for by the Code of Criminal Procedure.
May commission experts to assist them in their tasks related to supervision and inspection?
Yes, they may, but only when Public Prosecutors are conducting investigations about crimes committed inside prison walls.
Are complaints and/or denunciations regarding criminal and administrative detention subject to prosecutorial inquiry independently of any relevant authority or employees/officers? Is it a prosecutor’s duty to complete investigations himself/herself or is he/she allowed to forward these complaints for investigations to the officers/employees that are the subject of those complaints?
Complaints against any breach of law with respect to detention are under Public Prosecutors’ investigations, whatever person committed the crime, even if he/she works in the same prison as the convict who suffered from it.
If such is the case, Public Prosecutors can charge of the investigations a police of their choice. They are not compelled to entrust them to the same unit which the officers under investigation belong to.
In case of sudden death, accident or criminal offence committed against a prisoner, or if a prisoner commits a crime against another prisoner or a prison staff member, is the investigation conducted by a prosecutor acting as an independent judicial authority or is it simply supervised by a prosecutors? Do prosecutors have any role in investigation?
The investigation is conducted by a Public Prosecutor who directs the police criminal investigative department. The Prosecutor acts as an independent judicial authority who has a plenty role in this activity.
Are prosecutors entitled to take action in procedures concerning the adoption/revocation of special measures for high risk detainees or subject to special restrictions in connection with their role and position in active criminal organisations? If so, how?
Offenders of very serious crimes (such as crimes of terrorism, even international terrorism, subversion of the democratic system through violence, criminal organizations and mafia related crimes, reducing people to slavery, kidnapping for ransom, juvenile prostitution and sexual abuse) are subject to a stricter kind of detention.
Such a detention is organized in various ways, depending on the crime committed. For example, reward permits and alternative measures to detention can be applied to convicts who are sentenced for terrorism or mafia crimes only on condition that they cooperate with police officers as state witnesses.
A Public Prosecutor plays the role of giving his opinions to the Judge supervising the execution of the penalty.
In the case of offenders charged with mafia and terrorism, if order and safety reasons come about, the Minister of Justice is entitled to suspend all or some detention measures which are usually in favour of convicts. He can also do so upon request of the Minister of the Interior.
In this case Public Prosecution Offices also get involved in the Minister of Justice’s action by giving their advice on the matter. Besides, the National Anti-mafia Prosecuting Department (D.N.A.) provides any needed information. Then Public Prosecutors take part in eventual rehearing proceedings before the Court supervising the execution of the penalty and, in case of appeal against a decision, in front of the Supreme Court.
With a view to preserving them from any type of influence, are prosecutors autonomous or subordinated to other colleagues when monitoring the detention’s legality?
As we have already indicated, Public Prosecutors limit their intervention to cases where crimes are committed during detention. In the following investigations they are absolutely independent.
In this perspective every Italian Public Prosecutor enjoys a statute of independence which is safeguarded by the High Council for the Judiciary (CSM), i.e. a body of self-government for Public Prosecution and the Judiciary.
Is a prosecutor involved in granting a person’s pardon, amnesty or release, specially in the case of negative effects resulting from the punishment? Do prosecutors supervise criminal records?
Amnesty is a general, not discretional measure. Its requirements are provided for by law. For the application of amnesty Public Prosecutors act according to the Code of Criminal Proceeding and the concerned cases are decided by Judges.
The Criminal record Office is established at the Public Prosecution Offices.
Are special qualifications and training required of prosecutors who carry out duties in matters of criminal and administrative detention? Please specify.
No special qualifications or training periods are required for Public Prosecutors who are charged with prison matters. Nevertheless, in the inner organization of each Prosecution Office there is a division among work groups or sections, each of them being charged with special subjects. Such groups or sections can also deal with the execution of the penalty.
Some sessions of professional training for Public Prosecutors and judges are dedicated to prison matters.
What acts (presentation of conclusions, attend hearings, appeal against court decisions) are prosecutors entitled to carry out during proceedings before judges with jurisdiction over the enforcement of sentences/surveillance judges, in States where such judge exists?
The Court supervising the execution of the penalty is the main reference point in prison matters. Public Prosecutors may make requests (with respect to the application of some benefits such as entrusting the convicted person to the social service, day release from prison, leaves, early release). They can also state their conclusions about the requests which are made by convicts or their lawyers in the same matters.
Public Prosecutors are entitled to appeal judges’ decisions to a higher Court in all the cases they intervene in.
Signing an arrest warrant for the execution of a penalty is one of the Public Prosecutors’ main duties when they act as enforcement bodies. For sentences up to 3 years of detention, Public Prosecutors issue an order of execution together with an order to stay the proceeding. By doing so, they prevent the deprivation of liberty from being enforced to sentenced people who are in abstract entitled to benefit from alternative measures to detention. The convict is served a warrant stating that he/she may make a request to obtain an alternative measure, instead of detention, within 30 days from notice. The following step of the procedure takes place before the Judge.
When monitoring the enforcement of punishments, do public prosecutors interact with the ombudsman or any organisation linked to or charged of controlling the enforcement of punishments? If so, what type of interactions are they? Could you give the names of these organisations, whether they by institutional or not, and explain briefly their roles?
In the Italian system the Judges supervising the enforcement of the penalty are in charge also of this matter, rather than Public Prosecutors.
Could you give other useful information to the preparation of the draft Opinion (relevant questions to add, documents, etc.)?
= = =