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Prof. Dr. Valentina BONINI**…
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On İki Levha Yayıncılık
Yayın tarihi: Mart 2023
Sayfa: 235 - 252
On İki Levha Yayıncılık
Yayın tarihi: Mart 2023
Sayfa: 235 - 252
Yazar:
Valentina Bonını
Editör:Adem Sözüer
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Sayfa 235
Presumption of Innocence and Negotiated Justice: Who Waives What?*…
Summary: 1. Introduction. – 2. Presumption of Innocence and Negotiated Justice in ECtHR Case-law. – 3. An Overview of the Presumption of Innocence in the Italian Constitutional Frame. – 4. Presumption of Innocence and Bargained Proceedings: the Italian Experience. – 5. Presumption of Innocence and Restorative Justice.…
1. Introduction. – The presumption of innocence is considered a paramount guarantee within the modern criminal trial, and it is widely recognized either expressly or implicitly related to the due process clause(1),…
In order to identify the essential core of the guarantee, it can be observed that,…
It is easy to observe that the presumption of innocence is a cornerstone of criminal…
In front of this preliminary questions, the complex link between presumption of innocence…
2. Presumption of in Nocence and Negotiated Justice in ECtHR Case-Law. - In the attempt to give a systematic reading of the topic, it is pivotal to consider the European Convention on Human Rights, whose art. 6, par. 2 provides -within the frame of the right to a fair trial- that «[e]veryone charged with a criminal offence shall be presumed innocent until proved guilty according to law». Despite this solemn statement seems to establish a general application of the BARD…
Since the renunciation of the fundamental rights of the accused is theorized as a…
According to the general theory of renunciation of rights, the defendant can waive…
In the few occasions that have seen the ECtHR pronouncing about negotiated justice,…
Hence, it is provided that the bargain has to be accepted by the applicant in full…
This position is coherent with the ECHR purposes and structure, that are to assert…
Despite the ECtHR’s case-law –that focuses its attention on the formal validity of…
In the Resolution 2245 of 2018 about “Deal making in criminal proceedings: the need…
In particular, the need for a minimum level of investigation is expressly requested…
In this document the needing of an ascertainment and the immanence of the presumption…
Despite all this, the jurisprudence of the Court of Strasbourg still seems oriented…
3. An Overview of the Presumption of Innocence in the Italian Constitutional Frame.…
In the structure of the Italian Constitution, the presumption of innocence is an…
In this frame, it seems difficult to combine a bargaining logic with the over-individual…
With the only exception of the summary trial(26), the special proceedings now recalled can raise problems in relation to the presumption of innocence: this statement is particularly true in the “patteggiamento”,…
In this scheme, the judge is given reduced power of control, while great is the power…
Nowadays, in the event of insufficient or contradictory evidence, notwithstanding…
How can this procedural structure be harmonized with the presumption of innocence…
Nevertheless, in a system guided by the principles of legality and presumption of…
Obviously, this solution sets the Italian “patteggiamento” far from the American plea bargaining’s results in terms of number of cases avoid-
This lack of acceleration efficiency can be recovered by creating alternative procedural…
Indeed, the prominent role of plea agreements finalized to reduce the timing of criminal…
Hence, if the bargained justice is a “necessary evil”(36),…
5. Presumption of Innocence and Restorative Justice. – In order to dilute the strongly anti-cognitive characteristics of plea agreements, it is better to avoid assigning a single procedural model the task of making the system efficient, but rather pursue the objective of a speedy trial through multiple tools. Furthermore, seeking other solutions to foster procedural simplification, negotiated justice can be enriched by practicing the reparation of the offense and the closure of the conflict between the parties, rather than making the speedy trial its only goal. In fact, a more advanced form of negotiated justice may move its steps through restorative paths to pursue restorative outcomes. Restorative justice is not only an alternative to ordinary procedure, since it also can offer a new paradigm or expand the traditional function of criminal trial, with the aim of repairing the harm resulting from the crime, and, sometimes, of resolving the conflict between victim and offender(37).…
This is the road followed in recent times by the Italian legislator, by introducing…
