Art. 261. Applications of the rules of criminal procedure.

 

Unless otherwise provided by law, the rules of criminal procedure shall apply also to proceedings before military tribunals, having replaced:

1) the tribunal and the state’s attorney with the military tribunal and the state’s military attorney, respectively;

2) the secretary with the justice’s clerk.

Art. 261 bis. Proceedings related to magistrates.

 

Whenever a member of the Army, Navy, Air Force or Guardia di Finanza who exercises the functions of judge in the Military Courts or Military Courts of Appeals is in the conditions specified by article 11 (1) of the code of criminal procedure, the above article is applicable except for the fact that the judicial office having territorial jurisdiction is replaced by the military judge holding office in the administrative center of the district of the Court of Appeal or of the branch-court of the Court of Appeal, determined as follows:

a)    from the Military Court of Appeal in Rome to the branch-court in Naples;

b)    from the branch-court in Naples to the branch-court in Verona;

c)      from the branch-court in Verona to the Military Court of Appeal in Rome.

 

(1) Article on page 175.

Art. 262. Uniformity of military jurisdiction.

 

Military jurisdiction is uniform for all national land, naval and air forces.

 

Art. 263. Military jurisdiction in relation to military persons and offences.

 

Military tribunals shall have jurisdiction over military offences committed "by military in service to her arm or advised such from the law to the moment of the committed crime"

 

Art. 264. Connection of proceedings (1).

 

Connection between the proceedings falling within the province of the civil judiciary and those lying within the competence of the military judiciary is possible only when they concern offences committed at the same time by more persons together or by more persons even in different places and at different times, but in complicity, or by more persons to their mutual detriment or offences committed to perform or conceal other offences to obtain or guarantee the relevant profit, price, product or impunity to the benefit of the culprit or other persons.

The above mentioned cases fall within the province of the civil judiciary. However, the Court of Cassation, subject to the prosecutor's appeal to a civil or a military judge, or by settling the conflict, can order by reason of convenience the separation of the proceedings through a sentence.

The appeal involves the stay of proceedings (2).

 

(1) This article has been replaced to reflect article 8 of Law n. 167, dated 23rd March 1956.

(2) Code of criminal procedure article 13, second subsection, regulates the connection between military offences as follows: "Between ordinary and military offences the connection of proceedings operates only when the ordinary offence is more serious than the military offence, taking into account the criteria contained in article 16, 3rd subsection. In this case, the ordinary judge is competent for all offences".

 

Art. 265. Acquittal of some of the accused.

 

(No longer applicable).

 

Art. 266. Effects of the connection on the jurisdiction of both the military judicial authority and the High Court of Justice.

 

(No longer applicable).

Art. 269. The official nature of prosecution.

 

Prosecution is public for military offences and, if the demand or complaint is not necessary, the action is taken officially as a result of a report, denunciation or other notification relevant to an offence.

 

 

Art. 270. Civil action for restitution and damages (1) .

(1) Declared illegal by the Constitutional Court, judgement n. 60 dated 22nd February 1996.

 

Art. 271. General rule.

 

The law relevant to the military judicature establishes the type, composition and number of the bodies exercising the military jurisdiction.

 

Art. 272. Jurisdiction of the military tribunals.

 

Offences subject to military jurisdiction fall within the competence of military tribunals.

The rules of criminal procedure, except for the regulations contained in the following articles, shall be applied to establish territorial jurisdiction.

 

 

Art. 273. Offences committed at sea or abroad.

 

The original provisions of the article are superseded, in peace time, by articles 8, clause 2, and 9 of Law N. 180 dated 7 May 1981:

 

- Article 8, clause 2 - "The offences committed at sea, on board military ships or aircraft fall within the jurisdiction of the military tribunal of the place in which the parent unit of the accused is stationed";

- Article 9 - "The offences committed abroad fall within the jurisdiction of the military tribunal of Rome".

 

Art. 274. Desertion, failure to report to duty and absence without leave.

 

 

The military tribunal of the place in which the parent corps or unit of the accused or to which the accused should have reported shall have jurisdiction over offences of desertion, failure to report to duty and absence without leave.

In case of arrest, confinement to barracks or voluntary surrender, the military tribunal of the place of arrest, confinement to barracks or voluntary surrender shall have jurisdiction.

 

 

Art. 275. Loss of ship or aircraft and abandonment of command.

 

(No longer applicable, in peace time, for the implicited abrogation of the supreme military Tribunal - Law 180/81).

 

Art. 276. Effects of connection on territorial jurisdiction.

 

(Implicitly cancelled by Law 180/81, article 16).

 

 

Art. 285. Cases of removal and relevant rules.

 

(No longer applicable).

 

 

Art. 286. Effects of the proceeding for removal.

 

(No longer applicable).

 

 

Art. 287. Application of the rules of criminal procedure.

 

The rules of criminal procedure apply to the proceeding for removal relevant to offences subject to military jurisdiction.

 

 

The rules of criminal procedure relevant to incompatibility, abstention and recusation of the judge apply to the incompatibility, abstention and recusation of military magistrates and judges, except for the provision of the following article.

 

 

Art. 289. Special incompatibilities of military proceedings.

 

In addition to the cases specified in articles 61 and 62 (now 34 and 35) of the Rules of Criminal Procedure, the following military persons cannot sit in any capacity on a Military Tribunal or a Military Court of Appeal or therein exercise the functions of prosecutor:

 

1) the person who has been offended;

2) the officers of the parent unit or company of the accused and the officers who participated in a previous disciplinary action concerning the offence in question, or were somehow directly involved in the disciplinary repression of the offence in question;

3) the officers directly subordinate to the accused when the offence was committed or the criminal proceeding was initiated;

4) the officer who carried out the acts proceeding the preliminary investigation.

 

Art. 290. Exercise of the criminal action on the part of the prosecutor.

 

At military courts the prosecutor initiates and exercises the criminal action in connection with offences subject to the military jurisdiction.

 

Art. 291. Duties of the military attorney of the Republic of Italy .

 

Under the control and guidance of the military attorney general, the military attorney of the Republic of Italy:

 

1) watches over the observance of laws, the order of competences and the prompt performance of legal proceedings;

2) sees that the decisions made by military courts and the investigating magistrate are implemented;

3) performs any other duty conferred on him by laws and military regulations approved by decree of the President of the Republic of Italy.

On the accused (1).

Art. 292. Doubts on the personal identity of the accused on trial before the supreme military court.

 

 

 

Art. 293. Defence counsel.

 

 

 

Art. 294. Regulations concerning the military defence counsel.

 

 

 

Art. 295. Regulations concerning the non military defence counsel.

 

(1) These provisions should be considered implicitly cancelled .

 

 

 

Art. 296. Obligation to comply with the rules of court.

 

In proceedings falling within the competence of the military judicial authorities, military magistrates, military judges, clerks of the military courts, officers of justice and officers of the criminal military police are obliged to follow the rules of this code and, as applicable, those of criminal procedure, even if non-compliance does not entail nullity or any other specific punishment.

 

 

Art. 297. Issue of copies, summaries or certificates.

 

Article 116 of Rules of Criminal Procedure is applicable:

 

- Article 116. (Copies, summaries and certificates) - "1. During the proceeding and after its definition, those concerned can have copies, summaries or certificates of the individual acts at a cost.

2. The request shall be met by the prosecutor or the judge who is taking action upon presentation of the application or at the end of the proceeding, by the president of the board or the judge who issued the order to close the proceeding or the judgement.

3. The issue of the above mentioned documents does not cancel the prohibition to publish them in compliance with article 114".

 

Art. 298. Service of process.

 

Unless otherwise provided by law, the rules of criminal procedure shall apply to the service of process. The duties of the officer of justice can be carried out also by the military judicial messenger.

 

 

Art. 299. Notice to military personnel who shall have to stand as witnesses, experts, interpreters or custodians of impounded items.

 

The military personnel in military service who shall stand as witnesses, experts, interpreters or custodians of impounded items before military courts shall be notified by letter or telegram sent by the proceeding authority to the command to which the military person is subordinate. The command shall transmit without delay the paper certifying that the military person in question has been notified to the proceeding authority.

In an emergency, the military personnel in military service can be notified by oral or telephone communications to their respective superiors who are obliged to immediately notify those concerned.

If the military persons concerned are on leave or far from their headquarters, the notice can be given by the local Carabinieri post which shall immediately report to the proceeding authority.

 

Art. 300. Non-remediable nullities.

 

Nullities established by article 185 (now 178) of the Rules of Criminal Procedure can in no way be remedied. They can be deduced in any stage and degree of the proceeding and must be declared as of course.

 

Art. 301. Persons exercising the functions of military criminal police.

 

Except as provided for in article 415, the functions of criminal police for the offences subject to the military jurisdiction are exercised in the following order:

 

1) by the commanding officers of the corps, detachment or post of the different Services;

2) by the Carabinieri officers/NCOs and criminal police officers specified in article 221 (now 57) of the Rules of Criminal Procedure.

 

If there are more military persons from among those indicated in clause 1 and 2, the functions are exercised by the highest in rank or, being equal in rank, by the most senior officer.

The above mentioned military persons can request the intervention of the police.

In any case, all persons listed in clause 1 shall immediately inform the military attorney of the Italian Republic.

 

 

Art. 302. Criminal police subordination.

 

The persons listed in the preceeding article shall exercise their function under the control of the military attorney general of the Italian Republic and the military attorney of the Italian Republic in compliance with their respective regulations governing the relations within the chain of command.

 

Art. 303. Arrests, inspections and searches.

 

In carrying out arrests, inspections and searches, criminal police officers, military or non-military, shall comply with the special regulations contained in articles 310 and 327.

 

 

Art. 304. Sending of documents and information to the military attorney of the Italian Republic.

 

Once the operations are completed, the persons listed in article 301 shall immediately forward the relevant documents and the impounded items to the military attorney of the Italian Republic.

Furthermore, the above mentioned persons shall report any information they may subsequently acquire to the military attorney of the Italian Republic and accomplish at any time the acts necessary to ensure the evidence of the offence.

 

 

Art. 305. Disciplinary sanctions relevant to persons exercising the functions of military criminal police.

 

The persons listed in article 301, who do not comply with those regulations not entailing a special punishment or object to, omit or delay the implementation of an order of the military judicial authority or carry out an order only partially or negligently, shall be punished with disciplinary sanctions by their direct superiors, on demand of the military attorney general of the Italian Republic.

 

Art. 306. Assumption of criminal police acts.

 

As provided for in the previous paragraph, the military attorney of the Italian Republic can perform criminal police acts either directly or through the persons specified in article 301.

 

Art. 307. Assistance by the justice’s clerk.

 

The military attorney of the Italian Republic shall be assisted by the justice’s clerk in all the acts he will accomplish.

 

Art. 308. Arrest flagrant delicto.

 

A report is made on the arrest. The person arrested is immediately put at the disposal of the military attorney of the Italian Republic and, in the meantime, is taken into custody, preferably in a military place of confinement, and if the person is in the armed forces, he is detained apart from non-military persons.

 

 

Art. 309. Arrest outside the cases of flagrant delicto.

 

(It was declared constitutionally illegal by the Constitutional Court, judgement n. 74 dated 19^th March 1985).

 

 

Art. 310. Arrest in private places or in facilities outside the control of military authorities.

 

Except for the cases of flagrant delicto and by warrant or order of the military criminal authority, the military criminal police officers are authorized to arrest the accused persons subject to military jurisdiction in private houses or places or in facilities outside the control of military authorities.

 

 

Art. 311. Arrest in facilities or other places under the control of military authorities.

 

Except for the cases of flagrant delicto and by warrant or order of the ordinary judicial authorities, when a military or a non-military person accused of an offence subject to the ordinary jurisdiction has to be arrested in barracks, ships, facilities or other places under military control, the ordinary judicial authority shall forward the relevant request to the military authority who is obliged to immediately deliver the accused up to the judicial authority.

 

 

Art. 312. Orders by the military attorney of the Italian Republic.

 

The military attorney of the Italian Republic shall interrogate the person arrested as soon as he has been delivered up to him and shall release him if he considers this case one of those specified in the first two subsections of article 390 or in article389 of the Rules of Criminal Procedure.

 

 

§ 2

 

On arrest warrants.

 

 

Art. 313. Cases in which the arrest warrant is mandatory.

 

(No longer applicable after coming into validity of the new Rules of Criminal Procedure).

 

Art. 314. Cases in which the arrest warrant is optional.

 

(No longer applicable after coming into validity of the new Rules of Criminal Procedure).

 

Art. 315. Determination of the punishment under the preceeding articles.

 

(No longer applicable after coming into validity of the new Rules of Criminal Procedure).

 

Art. 316. Revocation and issue of a new arrest warrant.

 

(No longer applicable after coming into validity of the new Rules of Criminal Procedure).

 

Art. 317. Cases in which the summons to appear or escort warrant can be issued; successive issue of the arrest warrant.

 

(No longer applicable after coming into validity of the new Rules of Criminal Procedure).

 

 

Art. 318. Execution of warrants.

 

(No longer applicable after coming into validity of the new Rules of Criminal Procedure).

 

 

 

§ 3

 

On precautionary custody.

 

 

 

Art. 319. Release of the accused from prison; bail or guaranty; indisputability of the relevant order.

 

(No longer applicable after coming into validity of the new Rules of Criminal Procedure).

 

 

Art. 320. Rules concerning the duration of the precautionary custody.

 

The military judicial regulations establish the measures designed to avoid an excessive duration of the precautionary custody and to ascertain the responsibility for the delay in defining the criminal proceedings.

 

 

Art. 321. Arrest warrant after the order to stand trial.

 

(No longer applicable after coming into validity of the new Rules of Criminal Procedure).

 

§ 4

 

On release on bail.

 

 

Art. 322. Cases in which release on bail is allowed.

 

(No longer applicable after coming into validity of the new Rules of Criminal Procedure).

 

Art. 323. Time in which release on bail can be granted: bail or guaranty.

 

(No longer applicable after coming into validity of the new Rules of Criminal Procedure).

 

 

Chapter II

 

ON FORMAL PRELIMINARY INVESTIGATION.

 

Section I

 

General provisions.

 

 

Art. 324.Cases in which the formal preliminary investigation is mandatory.

 

(No longer applicable after coming into validity of the new Rules of Criminal Procedure).

 

Art. 325. Activities and delegations of the military examining magistrate.

 

(No longer applicable after coming into validity of the new Rules of Criminal Procedure).

 

Art. 326. Supervision of the military attorney of the Italian Republic on the preliminary investigation.

 

(No longer applicable after coming into validity of the new Rules of Criminal Procedure).

 

 

 

 

Art. 327. Inspections and searches by the military investigating magistrate in places within the jurisdiction of the Military Authority.

 

When an inspection or a search has to be carried out in barracks, ships, facilities or other places within the jurisdiction of the military authority, the investigating magistrate, in compliance with the regulations on access to military areas, carries out the inspection/search in the presence of the local commander, his delegated officer or, when deemed necessary by the investigating magistrate for special reasons of justice, of a higher military authority.

 

Art. 328. Judicial proceedings.

 

Except for the provisions of article 312 (now 219), last subsection, of the Rules of criminal procedure, during proceedings for offences cognizable by military courts it is forbidden to carry out judicial proceedings which may undermine service discipline or order in military areas.

 

 

Art. 329. Appointment of an expert witness.

 

When expert evidence is required, the judge appoints an expert witness, preferably among the officers of the national armed forces.

 

Art. 330. Technical advisers.

 

(Abrogated).

 

Art. 331. Incapacity or incompatibility of the expert witness.

 

In addition to the cases of incompatibility/incapacity of the expert witness or technical adviser provided for in the Rules of Criminal Procedure, the officer who drafted the report or denunciation or who accomplished the acts preceding the preliminary investigation cannot act as expert witness or technical adviser.

 

 

Art. 332. Deadline for submittal of expert’s report.

 

When an expert evidence cannot be given immediately, due to the nature or difficulty of the investigations, the judge establishes a term not exceeding two months for submittal of the expert’s written report. This term can be extended only once by the same judge, having heard the Military Attorney of the Italian Republic. If the expert does not submit the report within the established deadline, the judge replaces him and applies provisions of article 321 (now 231) of the Rules of Criminal Procedure. The judge has the above acts placed on record.

 

When required, the judge appoints an interpreter, preferably among officers of the National Armed Forces.

 

 

Art. 334. Incapacity or incompatibility of the interpreter.

 

In addition to the cases of incompatibility/incapacity of the interpreter provided for in the Rules of Criminal Procedure, the officer who drafted the report or denunciation or who accomplished the acts preceding the preliminary investigation cannot act as interpreter.

 

§ 4

 

On impoundment for criminal proceeding.

 

 

Art. 335. Impoundment in places within the jurisdiction of the Military Authority.

 

When an impoundment of property related to an offence has to be carried out in places within the jurisdiction of the Military Authority, it must comply with the regulations on access to military areas.

The impoundment is carried out in the presence of the Military Authority having jurisdiction on the place, his delegate or, when deemed necessary by the investigating magistrate for special reasons of justice, of a higher military authority.

 

Art. 336. Deeds or things protected by military or official secret (1).

 

(1) The provisions contained in the code of criminal procedure, article 256, are applicable.

 

Art. 337. Appointment of the custodian of impounded property.

 

In the proceedings for offences under military jurisdiction mentioned in article 344 (now 259), second subsection of the Rules of Criminal Procedure, the judge appoints a military custodian without requiring any indemnity bond.

 

 

 

 

§ 5

 

On witnesses.

 

 

Art. 338. Professional secrecy.

 

(No more hold).

 

Art. 339. Official secret.

 

(No longer applicable after coming into validity of the new Rules of Criminal Procedure).

 

Art. 340. Relations between the investigating magistrate and the prosecutor.

 

(No longer applicable after coming into validity of the new Rules of Criminal Procedure).

 

Art. 341. Dissent between the investigating magistrate and the prosecutor on the competence of the Military Court.

 

(No longer applicable after coming into validity of the new Rules of Criminal Procedure).

 

Art. 342. Incompetency sentence.

 

(No longer applicable after coming into validity of the new Rules of Criminal Procedure).

 

Art. 343. Order to stand trial. Provisions concerning the personal freedom of the accused.

 

(No longer applicable after coming into validity of the new Rules of Criminal Procedure).

 

Art. 344. Acquittal.

 

In case of acquittal, the suspension is ordered of the additional punishments and of the security measures taken provisionally, which must be cancelled as a result of the acquittal. The security measures under the criminal law and this code shall be implemented.

 

Art. 345. Sentence of abstention from ordering to stand trial for the military offence of duelling.

 

(No longer applicable).

 

Art. 346. Formal requirements of the investigating magistrate’s sentence.

 

In addition to the formal requirements established by the Rules of Criminal Procedure, a sentence adjudged by the investigating magistrate to a military person shall include identification of the military person’s rank, parent corps or ship.

 

Art. 347. Notification of the investigating magistrate’s sentence.

 

(Abrogated).

 

Art. 348. Appeal against the investigating magistrate’s sentence.

 

(No longer applicable after coming into validity of the new Rules of Criminal Procedure).

 

Art. 349. Absence of the accused.

 

If the accused could not be arrested or has escaped before an order to stand trial, the order shall be notified as provided for in the Rules of Criminal Procedure; if the accused serves with a corps or on board a ship, the order shall be notified to the corps/ship commanders and included in the order of the day of the corps/ship.

Art. 350. Cases requiring summary investigation.

 

(No longer applicable after coming into validity of the new Rules of Criminal Procedure).

 

Art. 351. Request for acquittal and sentence of the investigating magistrate.

 

(No longer applicable after coming into validity of the new Rules of Criminal Procedure).

 

Art. 352. Formal requirements of the request to summon a person subject to this code

 

The request of the Military Attorney of the Italian Republic to summon a person subject to this code shall include the latter rank and parent corps/ship in addition to the formal requirements established by the Rules of Criminal Procedure.

 

 

 

Chapter IV

 

ON REOPENING OF THE INVESTIGATION.

 

 

Art. 353. Reopening of the investigation and relevant procedure.

 

The reopening of the investigation is allowed in the cases established by the Rules of Criminal Procedure and is governed by the same Rules.

 

 

Art. 354. Selection of the advocate: notice by the clerk of court.

 

(Abrogated).

 

Art. 355. Appointment of the public defender of the fugitive from justice.

 

(Abrogated).

 

Art. 356. Notification of the advocate’s appointment and advocate’s powers. Technical adviser.

 

(Abrogated).

 

Art. 357. Remedy for the nullities ascertained during the investigation.

 

(Abrogated).

 

Art. 358. Scheduling of the hearing and relevant notice.

 

The president establishes the day/hour of the hearing.

The hearing day/hour are notified to the accused and to the advocate. If the accused is not a convict, notification shall be made according to the procedures for subpoena provided in articles 298 and 299.

A notice of not less than five days should be given in compliance with article 183 (now 174) of the Rules of Criminal Procedure.

 

Art. 361. Lists of witnesses and their reduction; production of documents, summoning of expert witnesses and other preliminary actions. Remedy for nullities.

 

1° (No longer applicable subsection).

2° The President must reduce the lists of witnesses, if they are too long, and cancel witnesses either inadmissible according to law or not directly related to the matter under trial.

 

Art. 362. Examination of witnesses who are on the point of travelling by sea.

 

If a witness who is on the point of travelling by sea has to be examined, the chief justice, at the request of the parties or as of course, can let the witness testify before the hearing by delegating the investigating magistrate of the military court or the non military judicial authorities.

In that case, testimony will be under oath.

 

 

Art. 363. Notification to an accused unrelated to the national armed forces; summoning of witnesses, expert witnesses, interpreters and technical advisers.

 

Unless otherwise provided for in this code, notification to an accused unrelated to the national armed forces is made in accordance with the Rules of Criminal Procedure, if the accused is not a convict.

Witnesses, expert witnesses, interpreters or technical advisers shall be summoned in compliance with articles 298 and 299.

 

Art. 364. Application of the rules of criminal procedure.

 

In proceedings before military courts the rules of criminal procedure relevant to the judgement before tribunals, as amended and supplemented in the following sections, are applicable to hearings, hearing records and the sentence.

 

Art. 365. Appearance of the accused.

 

The accused shall appear personally in the hearing of military courts.

In no case can the accused ask or allow that the hearing be held in his absence.(1).

The provisions of articles 427, 428 and 429 of the Rules of Criminal Procedure apply if the accused leaves the court during the hearing (2).

 

(1) The first and the second paragraphs are declared unlawful.

(2) Referring to the new Rules of Criminal Procedure.

 

 

Art. 366. Adjournment sine die of the hearing.

 

In case of adjournment sine die, a new hearing is demanded and established and the criminal process is conducted in compliance with the provisions of the first chapter of this title.

As a result of the provision by which the hearing is adjourned, the judge can avail himself of all his powers and the prosecutor and the parties can exercise all their rights during the acts preceeding the trial, except for lost rights. The acts provided for in articles 415 and 416 (now 468) and 417 (now 508) of the Rules of Criminal Procedure are valid with respect to the new hearing, if they are not renewed by the parties.

 

 

Art. 367. Offences committed during the hearing; immediate judgement.

 

(Referring to the corresponding provisions of the new Rules of Criminal Procedure).

 

Art. 368. Decision on the pleas of nullity during the preliminary investigation.

 

(Referring to the corresponding provisions of the new Rules of Criminal Procedure).

 

Art. 369.Admissible testimonial depositions.

 

In addition to the testimonial depositions specified in article 462 (now 511-513) of the Rules of Criminal Procedure also the depositions received in compliance with article 362 of this code can be read during the hearing.

 

When the judge abstains from giving a verdict of guilty in compliance with article 210 he declares that action shall not be taken stating the cause in the purview of the sentence.

 

 

By a verdict of guilty the culprit is sentenced to restitution and compensation for damages caused by the offence.

Action for the liquidation of damages is taken before the competent civil judge.(1)

In the action for compensation and liquidation of damages commenced or continued after a penal verdict of guilty in a criminal proceeding, the sentence has the force of a res judicata with respect to the existence of the offence and the right to compensation.

However, the judge of the civil Tribunal can also be cognisant of the detrimental effects after the sentence.

The matter is still open whether, in compliance with the civil legislation, the person who has the civil liability should be liable for the damage caused by the offence committed by the accused.

 

(1) Paragraphs declared unlawful by the Costitutional Court, judgement n. 78/1989.

 

Art. 374. Content of the minutes of the hearing and relevant regulations.

 

 

The minutes of the hearing are drawn up in accordance with the Rules of Criminal Procedure and the following should also be specified therein:

 

1) the rank of the permanent or temporary judges who have deliberated the sentence and their parent branch or corps;

2) the rank of the accused and his parent corps or ship;

3) the reading of the purview of the sentence and the observance of the relevant formalities.

 

The declarations of the accused and testimonial depositions are summarised in the minutes according to the president’s orders or as requested by one of the parties.

 

Art. 375. On judgement by default, summary proceedings and judgement by decree.

 

In proceedings before military courts, summary proceedings, judgement by decree and judgement by default are admissible in the cases specified in the following articles, in accordance with the regulations contained therein.

 

In case of judgement by default the sentence is notified to the culprit following the procedure relevant to the notification of the order to stand for trial and is subject to the appeals admissible against the sentences pronounced after cross-examination.

An appeal can be made also by reason of the unlawful declaration of absence.

 

 

Art. 379. Cases requiring summary trial and relevant procedures.

 

(Referring to the corresponding provisions of the new Rules of Criminal Procedure).

 

 

Art. 380. Summary trial procedures.

 

If the accused in a summary trial does not select an advocate immediately, a public defender shall be appointed by the prosecutor at the beginning of the proceeding or, if this was not done, by the Chief Justice before the opening of the hearing. Witnesses can also be summoned orally by the military messengers, a bailiff or a criminal police officer.

The prosecutor or the accused can call a witness to a hearing without a subpoena.

At the request of the accused, the judge may give him up to five days, that cannot be extended further, to prepare for his defence. In that case the trial is scheduled on the date of the hearing immediately following the five days term by an order of the Chief Justice which shall be notified to the accused. In the meantime, the accused remains in custody.

 

 

Art. 381. Replacement of the summary hearing by the plenary action.

 

(Referring to the corresponding provisions of the new Rules of Criminal Procedure).

 

On judgement by decree(1).

(1) A part of these provisions should be considered no longer applicable.

 

Art. 382. Cases requiring judgement by decree(1).

 

If in a proceeding for military offences for which the punishment prescribed by law is military confinement for not more than one year, the prosecutor, after examination of the deeds and any investigations he deems necessary, believes that the accused may be sentenced to military confinement for not more than six months, he may ask the Military Chief Justice to pronounce a judgement by decree, without a hearing.

Provisions of the preceding subsection are also applicable to:

1) proceedings for the offences named in article 264, numbers one and seven, for which the punishment prescribed by law is a money penalty, provided that the prosecutor believes that the penalty to be inflicted does not exceed 500 lire (2);

2) proceeding for offences named in article 264, number three, for which the punishment prescribed by law is imprisonment for not more than two years, or a money penalty, provided that the prosecutor believes that the term of imprisonment to be inflicted does not exceed one year, or the money penalty does not exceed 500 lire (2);

3) in any other cases expressly provided for by law.

The judgement by decree is not allowed in the cases named in article 506 (now 459), subsection three of the Rules of Criminal Procedure.

 

(1)    The Constitutional Court, by judgement n. 902 of July 7, 1988, has declared manifestly inadmissible the issue of constitutional legitimacy of article 382, which was raised in relation to article 25, sub-paragraph 1, of the Constitution, because, insofar as reference is made to the Public Prorsecutor, it is ruled out that article 382 attributes to the Public Prosecutor the power to choose the judge.

(2)    Original article 264 was abrogated by article 8 of law n. 167 of March 23, 1956. See new texte on page 120.

Art. 383. Powers of the Chief Justice or the delegated referee.

 

In the cases mentioned in the first two subsections of the preceding article, the Chief Justice or the delegated referee may pronounce a sentence by decree without a hearing, at the request of the prosecutor. The punishment inflicted by decree by the Chief Justice or the referee shall not exceed the limit imposed by law on the prosecutor’s demands. The cost shall be charged to the convict and the impounded things shall be seized or returned, as appropriate.

When allowed by law, the Chief justice or the referee may also order the conditional suspension of sentence and the no mention of conviction in the criminal record issued at the request of private citizens.

If the Chief Justice or the referee reject the prosecutor’s request, they return the deeds to the prosecutor in order to proceed with plenary action.

 

 

Art. 384. Formal requirement of the penal decree. Objection.

 

The penal decree includes:

1) name, surname and rank of the Chief Justice or referee who issue it;

2) name and address of the accused and, if he is a military person, his rank and parent corps/ship;

3) a description of the fact, the name of the offence and the circumstances which are considered part of the fact being prosecuted;

4) a summary of the prosecutor’s demands;

5) a summary description of the factual and legal grounds at the basis of the sentence;

6) the purview of the sentence including the articles of law which have been applied;

7) the date and signature of the president or referee and of the justice’s clerk.

A copy of the decree and the notice prescribed by article 586 (now 660) of the Rules of criminal procedure are handed over to the accused; he shall also be informed that he can raise an objection within ten days after notification if the sentence inflicts a money penalty and thirty days in case of sentence of detention.

If no objection is raised within this period, the decree comes into force.

 

 

Art. 387. Grounds for appeal against the sentences of the military courts (1).

Art. 388. Appeal of the accused (1).

Art. 389. Term for making an appeal (1).

 

 

Art. 390. Statement of appeal (1).

 

Art. 391. Notification of the prosecutor’s appeal to the accused (1).

 

Art. 392. Presentation and signing of the grounds for appeal (1).

 

Art. 393. Notice to the advocate (1).

 

Art. 394. Scheduling of the hearing and related measures (1).

 

Art. 395. Decision and sentence (1).

 

Art. 396. Annulment without adjournment (1).

 

Art. 397. Annulment with adjournment (1).

 

Art. 398. Exclusion of the money penalty in case of inadmissibility or dismissal of the appeal (1).

 

Art. 399. Limitations on the execution of punishment in the adjournment decision (1).

 

Art. 400. Cases of appeal. Presentation of the grounds for appeal (1).

 

(1) No longer applicable (article 6, Law n. 180 of May 7, 1981)

 

The sentences of the military courts may be reviewed in the cases provided for and in accordance with the Rules of Criminal Procedure.

 

 

Art. 402. Application of the Rules of Criminal Procedure.

 

Unless otherwise established under this Title, the Rules of Criminal Procedure shall apply to the execution of sentences of the military courts.

 

 

Art. 403. Different sentences on the same offence.

 

In view of comparison of punishments, under article 579 (now 669) of the Rules of Criminal Procedure, in the case of different irrevocable sentences pronounced against the same person for the same offence, the punishment of military confinement is regarded as equal to confinement.

 

(Abrogated by Law 589 of 13 October 1994).

 

 

Art. 405. Execution of a sentence of detention pronounced by a military judge.

 

The military regulations approved by decree of the President of the Italian Republic set out the execution procedures of sentences of detention adjudged by military courts; there will be different procedures according to whether the convict is free or in custody, is an ORs, an NCO or an officer, is on the national territory or on board a naval vessel, or is a member of the armed forces abroad.

In addition, these regulations set out the execution procedures of a sentence entailing demotion.

 

Art. 406. Execution of sentences of detention inflicted by ordinary judges.

 

The sentences of detention pronounced by ordinary judges against military personnel on active service, which do not entail permanent disqualification to hold public office, shall be executed by the military judicial authorities upon request of the Public Prosecutor or a magistrate; such request shall be submitted to the Military Attorney of the Italian Republic of the Military court having jurisdiction over the area in which the convict is custody, or over the convict’s parent corps, or over the district area to which belongs the vessel on which the convict is embarked.

A copy of the sentence, a copy of the punishment commutation provision under article 63 and the order of transfer from the place of custody pending trial, if the convict is in custody, shall be forwarded in conjunction with the request.

The Military Attorney of the Italian Republic designates the military penal institution where the convict must be transferred to serve his term of imprisonment and the Corps commander orders the convict’s transfer.

 

 

Art. 407. Commutation of punishments.

 

If the sentence does not provide for the commutation of punishment under articles 27, 63, 64 and 65, this shall be done by the prosecutor at the convict’s request or as of course.

The provision shall be notified to the convict under penalty of nullity.

When the person concerned raises an objection to the prosecutor’s provision, the rules concerning the execution objections apply.

 

 

Art. 408. Identification of the arrested person in view of executing the punishment.

 

If a person is arrested to serve a military prison sentence or a person escaped from a military prison is arrested and his identity is questioned, the Military Attorney of the Italian Republic of the place of arrest interrogates him and carries out any other investigation required to identify him.

When he ascertains that the arrested person is not the convict, he orders his immediate release; if his identity is doubtful, he remits ascertainment to the military court responsible for the execution objections.

The Military Attorney of the Italian Republic may delegate the magistrate of the place of arrest to carry out the acts mentioned in the previous subsection.

The Rules of Criminal Procedure concerning the execution objections apply.

 

 

Art. 409. Military surveillance office.

 

1) The military surveillance office is located in Rome and has jurisdiction over the whole national territory.

2) This office includes military judges of the Courts of Cassation, Appeal and Justice, personnel of the Registry, clerks of the Court’s office and civilian and military subordinate personnel.

3) Article 69 of Law 354 of 26 July 1975, as superseded by article 21 of Law 663 of 10 October 1986, applies to functions and provisions of the military surveillance judge.

4) military judges entrusted with surveillance functions shall not be tasked with other judicial functions.

5) The Chief Justice of the Military Court of Appeal may direct by decree a military judge of the Courts of Cassation, Appeal or Justice to replace temporarily a military surveillance judge, if he is missing or unable to carry out his functions.

 

 

Art. 410. Execution of money penalties.

 

Sentences to money penalties, pronounced by military courts under the penal code or special laws shall be executed in accordance with the Rules of Criminal Procedure, unless otherwise provided for by the military penal code; the military attorney of the Italian Republic may convert the money penalty into imprisonment.

 

Art. 411. Execution of additional punishments.

 

Demotion, dismissal, privation of rank and suspension from duty are executed by the military authority in compliance with the special laws and military regulations approved by decree of the President of the Republic.

The prosecutor is charged with noting on the card-index of criminal records any additional punishments following a sentence and any provisional punishments inflicted under the penal code and the military penal code on the card-index of criminal records.

 

 

Art. 412. Rehabilitation.

 

The Military Surveillance Court, at the request of the person rehabilitated in compliance with the common criminal law, may order to extend the effects of rehabilitation to any additional military punishments and to any other military penal effects of the sentence, after a hearing in camera and subject to the decision of the Military Attorney General of the Italian Republic and to any investigations he may deem necessary.

The decision may also be pronounced at the request of the Military Attorney General of the Italian Republic.

The provisions of the Rules of Criminal Procedure apply.

 

Art. 415. Preliminary investigation (1).

(1) The military courts on board were abolished, for peace time, by article 8, Law n. 180 of 7 may 1981.

 

Art. 416. Acts of criminal police abroad (1).

 

Art. 417. Decision of the commander on the findings of the preliminary investigation (1).

 

Art. 418. Order to file the acts or a statement of incompetency (1).

Art. 419. Direct summons to stand trial (1).

Art. 420. Order to carry out preliminary investigation (1).

Art. 421. Acts of the preliminary investigation (1).

Art. 422. Acts to be performed abroad (1).

Art. 423. Closing of the preliminary investigation (1).

Art. 424. Indisputability of the sentences of the preliminary investigation (1).

Art. 425. Reopening of the preliminary investigation (1).

Art. 426. Preliminary acts before the judgement (1).

Art. 427. Hearing; sentence; hearing minutes (1).

Art. 428. Execution of sentences; suspension; proposed pardons (1).

Art. 429. Default judgement (1).

Art. 430. Appeal to annul a sentence (1).

Art. 431. Retrial (1).

Art. 432. Substitution of punishments and forfeiture of conditional suspension of punishment (1).

(1) The military courts on board were abolished, for peace time, by article 8, Law n. 180 of 7 may 1981.

 

If the extradition of an accused person or a convict has to be requested from a foreign state for a proceeding under the jurisdiction of a military judge, the Military Attorney General of the Italian Republic requests it to the Minister of Justice and forwards the necessary acts and deeds.