I was honoured to be invited by the Italy Commission of the Paris Bar Association to speak in February at its presentation about the evolution of criminal justice in Italy and France over the past 20 years. I, along with Renaud Van Ruymbeke, First Vice President of the Tribunal de grande instance of Paris, and Lorenzo Salazar, Assistant Attorney General at the Naples Court of Appeal, helped demonstrate some important differences between trying a case in Italy versus trying a case in France. The event was moderated by Martina Barcaroli, head of the Italy Commission of the Paris Bar and Giandomenico Magliano, the Italian ambassador in France.
My presentation focused on one main point of comparison—the statutory independence of Prosecutors in Italy. One of the major differences between French and Italian criminal systems is that Prosecutors in Italy have an independent status, while, in France, Prosecutors are under the hierarchy of the Ministry of Justice. I noted that the independent status of Italian Prosecutors, viewed as a model by many in France, raises the question of democratic control over their activity.
I stressed that the statutory independence of Prosecutors, per se, does not produce effective criminal justice in economic and financial matters, and it can be quite the opposite. Even Mr. Salazar admitted that this independence was the source of some “anarchy” in the application of laws in Italy.
In countries, like the United States and Germany, where the fight against international corruption is most effective nowadays, Prosecutors don’t have an independent status, but are clearly considered as being part of the Executive Branch of government. In Italy, however, they are considered as being part of the Judiciary Branch. In the competition between criminal enforcement authorities in economic and financial matters, both Italian and French authorities were losing out. U.S. Prosecutors led the way, particularly through the use of pleas or DPAs, including against French and Italian companies severely sanctioned in the U.S.
Finally, Italian criminal justice chose to abandon the inquisitorial system with investigating judges in favour of the adversarial system. While this shift might be possible in France, I stated that the Italian experience needs to be examined more carefully to retain its positive attributes and to avoid any negative consequences, like the length of trials in Italy.