REPORT ON THE EXCHANGE AND SUMMARY

Transcription

1 REPORT ON THE EXCHANGE AND SUMMARY Instructions: 1. The report must be sent to the EJTN within one month after the exchange. 2. Please use the template below to write your report (recommended length: 4 pages). 3. Please write in English or French. Should this not be possible, the report can be written in another language but the summary must be in English or French. 4. Please read the guidelines for drafting the report (in Annex). Feel free to add any other relevant information in your report. 5. The summary shall contain a synthesis of the most important information of the report. 6. Please note that NO NAMES, neither yours nor the ones of the persons you met during your exchange, should appear in the report in order to ensure anonymity 1. Initials can be used when necessary. Identification of the participant Name: First name: Nationality: Italian Country of exchange: Germany Publication For dissemination purposes and as information for future participants in the Programme please take note that, unless you indicate otherwise, EJTN may publish your report in its website. In this case the report will remain anonymous and your name and surname will not appear. To this aim, please do not mention any names in the reports. Initials can be used instead. Please tick this box if you do not wish for your report to be published For completion by EJTN staff only Publication reference: 1 To that purpose, the first page of this report will be taken out before any possible publication Réseau Européen de Formation Judiciaire/ (aisbl) Rue du Luxembourg 16B, B-1000 Bruxelles; Tel: ; Fax: ; exchanges@ejtn.eu

2 For completion by EJTN staff only Publication reference: Identification of the participant Nationality: Italian Functions: Prosecutor Length of service: 2 year and a half Identification of the exchange Hosting jurisdiction/institution: Landgericht Berlin and Staatsanwaltschaft Berlin City: Berlin Country: Germany Dates of the exchange: Type of exchange: one to one exchange group exchange general exchange specialized exchange (please specify : ) REPORT 1. Programme of the Exchange My exchange in Berlin took place in the period April, In this time I had the opportunity to be in touch and to work with both Judges than Prosecutors of the District Court in Berlin. My tutor was Ms. K. T., a judge that in the next months will be transferred to the Prosecution Office. I attended to several criminal hearings, both in lower and in higher district court, some of them with just one professional judge and two lay judges and others with three professional judges and two lay judges. The composition of the Court follows the relevance of the crime. I discussed with the judges problems about the evidence, about the oral principle and concentration of process, about the length of the criminal proceedings, about differences in our systems. I had the opportunity to work also with Prosecutors, part of them from the group of financial crimes and part from organised criminality group. I could see some files and some investigation results. We talked about different ways to define a criminal proceeding, different investigation instruments and protocols, kinds of force of police. I had also the opportunity to visit a juvenile prison and a police station, where people explained me the specific functions of some juridical institutions in Germany. 2. The Hosting Institution

3 The Prosecutor Office in Berlin is the biggest Prosecutor Office in Germany. Around 1000 people work in it, out of whom more than 300 Prosecutors. They are divided into specialised groups which attend to specific crimes, such as Capital Crimes, Financial, Corruption Crimes, Organised Criminality. Prosecutors don t remain into the same field of activity along their whole career, but they rotate among all of them. The Prosecution Office lays in Kriminalgericht Moabit, Turmstraße 91, Berlin. 3. The Law of the Host Country THE COURT. According to what I experienced, there is a common procedural ground between Italian and German system, with one significant difference: professional judges have all the investigation file studied before they begin the process. That means that they are prepared to the hearing and that the witnesses exam is primarily judge s duty. This leads to a generally faster trial than in Italy, even if both are based on an oral principle. It was quite impressive for me as an Italian Prosecutor to see a trial, with four witnesses, one of those was a Policeman, to begin and to end in the same day, sentence included. This is an other distinctive point: what is really relevant in Germany is the oral motivations of the sentence and not the written ones. The accused will decide within 7 days to appeal it or not, only on the basis of the explanation that the judge gave him. The Prosecutor s role during the public trial is usually of less engagement than in Italy, where the evidence shall be formed by both the parties in front of the judge, who don not know the investigation results. In Germany, the Prosecutor is deemed the person who helps the judge in the decision, as well shown by the phisical seating arrangement (beside the judges, and not in front of them) in several hearing rooms. On the other hand, in Germany the accused usually plays a more important role in trial: he could do on his own some questions to the witnesses and he could ask for a short suspension of the process to talk with his lawyer. The accused can also ask some questions to the judge in case he doesn t understand something about what happens in the trial. Some other differences, like the presence of experts in capital cases, or the informality of the hearings with definitive condemned people that had presented some requests to the judge, testify that the German system is based on a common cultural ground in respect of Italian procedure, but in some way it pays more attention to substantial aspects than to formal perspectives. Germany knows only in part the different kinds of trial that are possible in Italy. INVESTIGATION The investigation is attended in the same way as in Italy, from the notice that a crime has been committed to the final decision to go to the trial or not. Differences lay in the wide possibilities for the German Prosecutor to close a file without any trial. No proceeding will be held in absentia. For first-time-offender, there are a lot of possible choices to close the file without any trial. Agreements with the Prosecutor are always possible, with some few exceptions. Minor cases can be simply closed. In general, there is no check by the Court or by the Judge of the investigation on the closure of a file. Rules about people arrest or freedom limitation are similar: judge s control is needed for common situations or for similar means of investigations (tapping phones, etc.). Also the workload is not so different in Germany as in Italy: worklife comparison allows to state that we work in the same Europe, with similar worries and identic solutions. A strong difference is the fact that German Prosecutor is dependant on the Government and he doesn t share the same guarantees of the judge, even if he belongs to the same corporation. That is a fact that in some circumstances has been complained about. PRISON In Berlin, the Prosecution and the Courts Offices are phisically connected to the Prison. Consequently, there are no problems of transferring people, and thanks to those reserved walkways there aren t any gate

4 parts in the Court rooms. I haven t seen any Prisoner in state of limitation of freedom. That s a fact in protection of dignity. I have visited also a Juvenile Prison. It was relevant to see how it is used also for very short periods, just to give the guys the idea of what would happen in the future, and in some cases to help them. POLICE I also visited a Police Investigation team, which was made by lots of people. Some of them work in the field of protection of art and showed me some confiscated pieces of work. 4. The Comparative Law Aspect At the end of this experiencei had the impression that the role of the accused in the German process is much more important than in Italy. In fact, I have seen some accused people talking directly with judges, asking questions to the witnesses, and asking for suspencion of the hearings if they needed to talk with their defendant. In Italy the relationship with the Court is held only by the professional defense (lawyers) and the accused usually talk just for spontaneous declarations or to be examined. A Prosecutor told me that this difference is probably due to the fact that after the WWII in Germany the law has to recognize to the accused all kind of rights. Another important difference is the Prosecutor role. He is deemed the person who helps the Judge in the decision, and it is symbolized by the fact that, in most cases, the Prosecutors is at the right hand of the Court, in front of the accused. In Italy, it is different. The Court is completely third and impartial from both the parties (Prosecutor and Defendant), as it is stated by Art Constitution. The role of the judge is mostly the one to hear and to understand, and then to decide on the basis of both thesis. He has no involvement in the investigation, he knows nothing about it and he decides on the basis of the evidence that has been formed in front if him. Another relevant point is the enormous power that the Prosecutor has to close a file. He can select what is really important and to bring to the Court only the relevant cases, while the other can be ended in different ways (fines, pardon, etc.). Moreover, there is no judiciary control on what the Prosecutor has closed, apart in cases in which there is the opposition of the offended person. Prosecutors are dependent from the Executive. It means that they have not all the guarantee of independence that they have in Italy. German system is based on oral words. It means a greater attention to the substance, and less importance of the single word or formal aspects. I think this is a cultural point more than a comparative aspect, and it needs faithfulness between lawyers and magistrates, but in the end I think that it means faster proceedings and, in certain cases, (substantial) fairer decisions. From a certain point of view, Italy has a greater respect to individual dignity, as it is recognized by the Constitution. Even if the possibility of forced medical investigation is existing, I have no knowledge about its application. In Germany, the forced blood analysis are made also for driving under the effect of alcohol. 5. The European Aspect of the Exchange It was particularly evident the relevance of cooperation between Police or, in general, investigation institution and, then, Prosecutor s Offices of several Countries. The transnationality of crime needs stronger cooperation during investigations. Some problems can be solved if people could meet and find an agreement, as in joint investigation, while other aspects are more seriously complicated by different law: in a case in which Spain, Germany and Portugal made a joint investigation, after the arrest the real problem was in which Country the trial should have taken place (the facts were the same).

5 Germany, like Italy, looks now with greater attention at the interpretation of law that comes from European Courts, both EU Court and EHCR. 6. The Benefits of the Exchange I think it has been a wonderful experience, leading me to think about lights and shadows of Italian juridical system in comparison with the German one. Above all, I have seen that the problems that Prosecutors face every day (enormous amount of files, length of proceedings, relationships with colleagues and police, etc.) are the same, even in different circumstances. Another important point is that this exchange gave me the opportunity to get in touch with lots of people and to express fears and hopes about the future of our common Europe.

6 SUMMARY My exchange in Berlin took place in the period April, In this time I had the opportunity to be in touch and to work with both Judges than Prosecutors of the District Court in Berlin. I attended to several criminal hearings, both in lower and in higher district court. I discussed with the judges problems about the evidence, about the oral principle and concentration of process, about the length of the criminal proceedings, about differences in our systems. I had the opportunity to work also with Prosecutors, we talked about different ways to define a criminal proceeding, different investigation instruments and protocols, kinds of force of police. I had also the opportunity to visit a juvenile prison and a police station, where people explained me the specific functions of some juridical institutions in Germany. According to what I experienced, there is a common procedural ground between Italian and German system, with one significant difference: professional judges have all the investigation file studied before they begin the process. The Prosecutor s role during the public trial is usually of less engagement than in Italy, where the evidence shall be formed by both the parties in front of the judge, who don not know the investigation results. On the other hand, in Germany the accused usually plays a more important role in trial. The investigation is attended in the same way as in Italy, from the notice that a crime has been committed to the final decision to go to the trial or not. Rules about people arrest or freedom limitation are similar. Also worklife comparison allows to state that we work in the same Europe. I think it has been a wonderful experience, leading me to think about lights and shadows of Italian juridical system in comparison with the German one. Above all, I have seen that the problems that Prosecutors face every day are the same, even in different circumstances.

7 ANNEX GUIDELINES FOR DRAFTING THE REPORT I- Programme of the exchange Institutions you have visited, hearings, seminars/conferences you have attended, judges/prosecutors and other judicial staff you have met The aim here is not to detail each of the activities but to give an overview of the contents of the exchange. If you have received a programme from the hosting institution, please provide a copy. II- The hosting institution Brief description of the hosting institution, its role within the court organisation of the host country, how it is functioning III- The law of the host country With regard to the activities you took part in during the exchange, please develop one aspect of the host country s national law that you were particularly interested in. IV- The comparative law aspect in your exchange What main similarities and differences could you observe between your own country and your host country in terms of organisation and judicial practice, substantial law..? Please develop. V- The European aspect of your exchange Did you have the opportunity to observe the implementation or references to Community instruments, the European Convention of Human Rights, judicial cooperation instruments? Please develop. VI- The benefits of the exchange What were the benefits of your exchange? How can these benefits be useful in your judicial practice? Do you think your colleagues could benefit of the knowledge you acquired during your exchange? How? VII- Suggestions In your opinion, what aspects of the Exchange Programme could be improved? How?