Laws of greater penitentiary interest
The legal aid at government’s expenses "Gratuito Patrocinio"
If you are Italian citizen or foreign citizen and you have a document that attests your identity, you can be admitted to the legal aid at government’s expenses "Gratuito Patrocinio" in order not to pay the defender and the expenses for your trial and also those for technical consultancy and investigators.
To obtain the legal aid it is necessary to have an income lower than 9.296 Euro yearly, income that results from the last income tax return form.
This limit increases of 1.032 Euro for each person living with you, in the case where you result to be living with your family. The accused and the convicts for crime of tax evasion are excluded from legal aid. To obtain legal aid you must made out an application through the Governor of the jail, who will authenticate your signature and transmit your application to the Judge having jurisdiction.
This application must contain:
The applicant must further undertake to communicate, within thirty days from the expiration of the one year old term from the presentation of the application, and up to when the procedure is not defined, any possible variations of income in order to obtain benefit.
The foreign applicant must attach, together with the "autocertificazione" on the incomes gained in foreign countries, a certificate from Consulate Authorities, that confirms his/her declarations. The foreign prisoner can also produce the certificate of the Consulate Authorities within twenty days from the presentation of the application (also through the defender or a proper relative).
In the case of impossibility to produce such certificate, it can be replaced by an "autocertificazione"
Concerning incomes gained in Italy, a declaration is enough, even if the Judge can request that these documents be produced that prove consistence of it: in the case of impossibility to produce such documentation it can be replaced by the "autocertificazione".
Juridical causes of restriction in the jail
Your restriction can be motivated from:
In the first two cases the Judge must meet you within 96 hours for questioning: either he will validate your arrest or the investigative detention (fermo), or he will release you.
In the third case the Judge will have to question you within five days. (If you are found in preventive detention (custodia cautelare), the P.M. (Public Prosecutor) can only question you after the G.I.P has questioned you).
The preventive detention (custodia cautelare) can only be applied in the following cases (need of prevention - "esigenze cautelari"):
For the crime of mafia-style criminal association (416 bis C.P.) the preventive detention in prison is always applied, unless there aren’t facts proving there is no need of custody.
The maximum terms of duration of the preventive detention (custodia cautelare) are of 3, 6 months or 1 year (according to the seriousness of the offence) from the first date of the arrest up to the remand (pre-trial hearing). (For complex cases and crimes the terms can be suspended, during the carrying out of the trials, and postponed, even various times).
The maximum cover of the preventive detention, taking into account of all these phases and of the possible extensions and suspensions, cannot be superior to 2, 4 or 6 years, according to the seriousness of the offence, from the arrest to the absolute decree.
The ordinance that prepares the preventive detention can be opposed by introducing an application to the Court of Liberty (Tribunale della Libertà) within ten days from the moment in which it has been notified to you.
The trial and the various forms of judgment
The shortened judgment at the pre-trial hearing (udienza preliminare)
At the pre-trial hearing, instead of committing you for trial, the G.U.P. ("Giudice Udienza Preliminare" – the Judge of the pre-trial hearing) can decide and immediately close the trial: in such case, the sentence is decreased of a third of the total.
The shortened rite must be requested directly to the G.U.P.: if the judge believes to posse enough elements to decide immediately, he will allow the celebration of the shortened rite. The shortened judgment can also be applied to the crimes that foresee a life sentence sentence without diurnal isolation.
The "plea bargain" (patteggiamento) (application of the punishment on demand of the parties of action).
It is an agreement between the accused and the P.M. (Public Prosecutor) concerning the punishment to be inflicted. This plea bargain (patteggiamento) is possible when, taken into account of the extenuating circumstances and of the diminution for the rite, the sentence is not superior to two years. It must be requested at the pre-trial hearing: you cannot propose it during the trial
Direct subpoena (citazione diretta) in front of a single-judge court (" Giudice Monocratico")
For those crimes for which the pre-trial hearing is not foreseen, you can request for the shortened rite and the plea bargain (patteggiamento) at the trial (udienza dibattimentale), before the trial begins.
The direct judgment
When there has been an arrest in flagrancy of crime, and further investigations are not necessary, within 48 hours from the arrest, the P.M. (Public Prosecutor) can request to proceed, besides the validation of the arrest, also to the direct judgment. If the arrest has already been validated, or in case of admission of guilty, the PM. can proceed to direct judgment.
During this phase you can request, if you are interested, the shortened rite or the plea bargain (patteggiamento). In any case you can request a term, in order to prepare the defence, not superior to ten days.
The immediate judgment
If proof appears evident, the P.M. (Public Prosecutor) can request the G.I.P. an immediate judgment within 90 days from the registration in the register of the news of crime. The decree of the G.I.P. that prepares the immediate judgment must be notified at least 30 days before the date of the trial.
Within 15 days from the notification of the decree that prepares the immediate judgment, the accused can request for the shortened judgment or for plea bargain (patteggiamento). Passed this term it is not longer possible to request neither shortened rite nor plea bargain (patteggiamento).
The ordinary judgment (it is the normal form of celebration of the trial)
It is celebrated in front of the Court that, according to each case, can be made up from one or from more judges on the date that has been fixed by the G.U.P. at the end of the pre-trial hearing, or following direct subpoena (citazione diretta) by the P.M. (Public Prosecutor) for all those crimes in which the pre-trial hearing is not foreseen. After the hearing has begun, the P.M. (Public Prosecutor) and the defenders request that the evidences be brought forward (ammissione delle prove)
Witnesses against the accused are questioned first, then those of the accused. If you want you can ask to be examined, or accept an examination, if required by the P.M. (Public Prosecutor). In this case, you will have to answer the questions of the prosecution, of the defence, and possibly those of the Judge. You are however, at any moment of the trial, even before the Judge withdraws to decide, allowed to make some spontaneous declarations.
At the end of the evidences acquisition the discussion begins and it will conclude with the sentence. You can oppose to the sentences of the ordinary and the shortened rite by introducing an Appeal to the competent Court of Appeal (the written declaration of appeal, to sentence of inadmissibility, must point out the opposed provision and its date, the Judge that has sent it forth, and the motives of the opposition) or you can appeal to the Court of Cassation (Corte di Cassazione); when there has been a plea bargain (patteggiamento) it is possible to appeal only to the Court of Cassation (Corte di Cassazione). The terms to produce the opposition can be of 15, 30, 45 days, according to the various cases:
The alternative measures to the detention
The early release of the prisoner (liberazione anticipata)
Every six months of detention, if you have:
you can receive a reduction of 45 days on the remaining sentence. You can also receive it for the periods carried out in preventive detention (custodia cautelare) and at the house arrests, but you must only request it after the sentence has become definitive. The application made on a special form (available at the section) must be handed over to the Supervisory Court (Tribunale di Sorveglianza). The benefit can be revoked, if you are convicted for new crimes before having finished serving your sentence, even in alternative measure.
The Constitutional Court with the ruling n° 186 of 23.5.1995 has established that the preoperating liberation can be revoked only if the behaviour of the subject, in relationship to the suffered sentence, results incompatible with the granted benefit
The bonus leave of absence (permessi premio)
The Supervisory Magistrate (Magistrato di Sorveglianza) decides upon permits (bonus leave) . You can have, at the most, 45 days of permits a year (a maximum of 15 uninterrupted days ). In order to receive them it is important a favourable opinion from the Governor and a report of the treatment team (équipe) that foresees them in the hypothesis of treatment (at the end of the document of the "synthesis"). Furthermore your sentence has to be definitive and confirmed to have served at least a quarter of it, when related to non serious crimes. If, instead, you are convicted for robbery, extortion, homicide, etc., you can only receive the bonus leave of absence after having served half of the sentence (but, however, not more than ten years).
For sentence not superior to three years, a minimum period of punishment is not needed in order to receive bonus leave of absence.
Bonus leave of absence cannot be granted in the following cases:
The external job (art. 21 Penitentiary Law - O.P.)
The Governor of the Jail can allow you the possibility to carry out a job outside, if your behaviour is faultless, if you are in a very positive course of treatment, and if the Monitoring Staff (Gruppo di Osservazione) expressed a proposal of this type.
However, if you are convicted for a serious crime (robbery, extortion, homicide, etc.) you can have an external job only after having served a third of the sentence (however not more than five years and ten years for those convicted to a life sentence). Also defendants can be allowed to the external job.
The semi-freedom (semilibertà)
Means the possibility to go out of jail during the day to seek working activity, or to study or to do a voluntary job, then re-entering jail in the evening. It is necessary to observe all the obligations of the program (schedule of exit and re-entry, not to differ from the places pointed out in the program). In order to obtain "semilibertà - semi-freedom" it is necessary to have served half of the foreseen sentence.
In cases where you could have the probation with the social services (affidamento in prova) (sentence to be served not superior to three years) you can be admitted to the "semilibertà" if the Court believes that there are no conditions for the probation with the social services (affidamento in prova): in this case, it is not necessary to have served half of the foreseen sentence.
This possibility is not foreseen for those who have been convicted for particularly serious crimes (art. 4 bis Penitentiary Law (O.P.): increased robbery, increased extortion, increased traffic of drugs, homicide, etc.).
For these crimes the semi-freedom (semilibertà) can only be obtained after the major part of the sentence has been carried out (at least the two thirds). Also for those been sentenced to life imprisonment can get the semi-freedom (semilibertà), but they must have carried out at least twenty years of sentence.(To calculate how much sentence you have served, in order to request the semi-freedom (semilibertà), add on also the days that you received for pre-operating liberation).
Probation with the social services (affidamento in prova)
This can be requested by sending special application to the Supervisory Magistrate (Magistrato di Sorveglianza), who can suspend the enforcement of judgement and release one from prison, while awaiting for the definitive decision from the Supervisory Court (Tribunale di Sorveglianza).
The suspension of the sentence can be granted if the Judge believes that you have good probabilities to obtain the probation with the social services, that there is no danger of escape and that the continuation of the imprisonment constitutes a serious prejudice. The Supervisory Court should decide within 45 days beginning from when the application reaches them, transmitted by the Magistrate, but such term may not be respected because of the Courts heavy workload.
Even though it is not formally obligatory in order to receive the probation with the social services, however having a job is an essential element to get the probation (affidamento) with the social services, when you propose the application, therefore, it is appropriate that you attach the documentation concerning to the offer of a job, otherwise the possibilities of receiving it are rare.
If the application is rejected, the suspension of the sentence is revoked and you have to return to jail, without having any further possibility of making another request and not even the possibility in relationship to a different alternative measure. The probation with the Social Services allows you to carry out your sentence at home or in another residence, but you must respect the prescriptions that of Supervisory Court will decide.
The most frequent prescriptions are:
You can request the probation (affidamento) if you still have to carry out an inclusive sentence within three years.
If you are convicted for mafia-style association, kidnapping or association finalized to the traffic of drugs you can only request the probation (affidamento) if you have collaborated with the justice.
If you are convicted for increased robbery, increased extortion, increased drug traffic or homicide, you can only receive the probation with the social services if, from information carried out by the Provincial Committee of Order and Public Safety ("Comitato Provinciale per l’Ordine e la Sicurezza Pubblica"), that there results to be no elements of subsistence of connections with the subversive or organized crime.
Therefore bear in mind that it is not enough to have a positive "synthesis" of staff operators and to come under the limits of sentence in order to receive this kind of probation: you also must build your application with documentation that gives guarantees concerning employment once released from prison:
Bear in mind that, in relationship to all the alternative measures: probation (affidamento), semi-freedom (semilibertà), house detention (detenzione domiciliare) if you don’t respect the prescriptions, the measure can be suspended by the Supervisory Magistrate (Magistrato di Sorveglianza) and you will return (provisionally) in prison. The Supervisory Court (Tribunale di Sorveglianza) will decide within thirty days whether to revoke or not this measure. In case of revocation, you are not able to request any kind of benefit nor the bonus leave of absence, for three years.
In final the Supervisory Court (Tribunale di Sorveglianza) will evaluate the time spent on probation (affidamento) to be considered served sentence.
The probation in special cases (affidamento in prova) (for drug addicts and alcohol dependents)
If your sentence or the sentence that remains for you to carry out is inferior to four years and you have a program in course of recovery from drug addiction, or if you intend to undergo this program, you can request to be sent to the social services, to continue it or to undertake it outside. The program of recovery must be arranged with the Ser.T. staff (Service Drug Addiction of the A.S.L).
The application of admission on probation (affidamento in prova) must turn to the Public Attorney (Procura della Repubblica) that has sent forth the sentence, and it must be accompanied, to sentence of inadmissibility, by a certification, released by a public sanitary structure, certifying the state of drug addiction or alcohol dependence, the therapeutic program to be followed and the certification of fitness for the same program in order to reach those goals of recovery.
The admission to the alternative measures for convicts acclaimed affected by A.I.D.S. or from serious immunity deficiency (Art. 47,quater Penitentiary Law (O.P.), introduced by the Law n° 231/99)
By rule of the art. "47, quater O.P.", the convicts acclaimed affected by A.I.D.S. or from serious immunity deficiency, which intend to undertake a program of care and assistance, can be admitted to the probation or to the house detention, whatever the sentence be that they have to serve.
The application must be supplied together with a medical certificate issued by the competent sanitary service, or from the penitentiary sanitary service that certify the health conditions and the feasibility of the program of care and assistance in hospital structures or in other structures engaged, that are according to the regional plans in the assistance concerning the cases of AIDS. The prescriptions that concern the alternative measure will also contain those inherent to the formalities of execution of the program of care and assistance.
The house detention (Detenzione domiciliare)
There are various "cases" of house detention: you can request it when the residual sentence you have to serve is less than four years, if you are found in one of the followings conditions:
If your residual sentence to be served is not superior to two years, you can obtain the house detention:
The application must handed over to the Supervisory Magistrate (Magistrato di Sorveglianza).
In these two suppositions (sentence not superior to four years in the particular situations as mentioned above and sentence not superior than two years) the Supervisory Magistrate can provisionally apply the measure while awaiting the decision from the Supervisory Court (Tribunale di Sorveglianza).
The house detention can be also granted when you are in one of the conditions that cause:
the optional deferment of the sentence (the judge is able, upon his discretion, to postpone the sentence):
In these cases, independently from the entity of the sentence to be served, the house detention can be granted, for one determined and extendable period. You must hand over the application of "suspension of enforcement of judgement" to the Supervisory Magistrate.
Bear in mind that if you leave the place of house detention (residence private or of any other structure) you commit the crime of escape, and this will involve the revocation of this benefit.