Does the public prosecutor act in the suspect’s favour? The Supreme Court’s guidelines. The Eni-Nigeria case
The reasons given by the Milanese judges for the acquittal: there is no obligation to provide further evidence. The decision is discretionary
Key points
The Court of Cassation has set limits on the investigative activities of the public prosecutor in favour of the suspect . In judgment no. 34182 of the Sixth Criminal Section, filed yesterday and setting out the grounds for the acquittal, the Court of Cassation overturned the verdict of the Court of Appeal handed down by public prosecutors Fabio De Pasquale and Sergio Spadaro in the proceedings concerning international corruption Eni-Nigeria (the two magistrates were accused of failing to submit evidence in favour of the persons under investigation), the Court takes care to analyse in detail the relevant provisions of the Code of Criminal Procedure, primarily the content of Article 358, according to which the prosecution ‘shall also carry out investigations into facts and circumstances in favour of the person under investigation’.
The prosecution of criminal cases
The ruling emphasises, first and foremost, that the provision establishes a mandatory rule of conduct, compliance with which by the public prosecutor is linked to the proper conduct of criminal proceedings – that is to say, to the requirement that criminal proceedings be brought only on condition that the investigations are complete and adequate in relation to the outcome sought, the reasonable probability of conviction.
The consequences
An error or abuse on the part of the public prosecutor who, in the course of preliminary investigations , brings criminal proceedings in breach of Article 358 ‘does not result in a specific procedural sanction, but rather the risk, on the one hand, of an incorrect or, worse still, a careless or inadequate decision regarding the bringing of criminal proceedings – a decision destined to be overturned – and, on the other hand, of the imposition of sanctions that may apply across various levels of liability’, ranging from civil to criminal liability, including disciplinary liability.
No connection with the principle of equality between the parties
However, contrary to the view taken by the appeal judges, the legal issue is not linked to the principle of equality of the parties or to the right to a defence, but rather ‘to the need to establish a system of efficiency and safeguards in which the judge is, in turn, to rigorously apply the new rule of procedure underlying the order to dismiss the case in all instances where the public prosecutor has failed to properly apply the identical rule governing requests for dismissal’.
Indeed, a weak criminal case – because it is brought without conducting investigations in the suspect’s favour and is therefore incomplete – almost inevitably leads to a ruling of dismissal of the case at the preliminary hearing.
