Negotiations 'on Evidence' and Negotiations 'on Sentence': Adversarial Experiments in Italian Criminal Procedure

Abstract

In Italy, procedures based upon concessions to the defendant in exchange for cooperation with the prosecution were ?rst established in 1981, but were organically laid out only in 1988, when an adversarial Code of Criminal Procedure came into force. Little of the original versions of the ‘summary proceeding’ and ‘application of a penalty upon request’ (the Italian equivalent of plea-bargaining) has survived the swinging reforms of the 1990s. Such reforms, driven at times by concerns of public interest and, at other times, by the endorsement of the fundamental rights of the accused, have culminated in the 1999 fair trial amendment to the Constitution. Negotiated justice also received constitutional legitimacy, albeit in an acutely controversial form. Despite the acknowledged indispensability of consensual means of con?ict resolution for reasons of procedural expediency, Italian commentators still struggle to reconcile the very concept of negotiated justice with engrained constitutional principles. Negotiations in Italian law can now be pro?tably grouped into two categories: negotiations ‘on the evidence’ upon which the court may base a judgment, and negotiations ‘on the sentence’ that the court may serve on the defendant.