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13. The results of the interviews conducted with the most active prosecutor’s offices: best practices in judicial activitiesadmitted the validity of the prohibition of de relato testimonies made by the judicialpolice.The legislative and judicial vicissitudes of par. 4 of article 195 criminal procedurecode have directly affected proceedings on people trafficking and migrantsmuggling, because of the above-mentioned problems in guaranteeing probatoryevidence (see § 13.1.6). In some cases, statements by illegal migrants who thenproved impossible to trace have been wasted, because those statements could notbe repeated before the judge. This waste of information caused difficulties forthose prosecutors that, relying of the procedural regulation previous to the 2001reform, had not taken precautions and therefore had not used the incidenteprobatorio procedure in order to secure the evidence, or had not applied article 18C.T. Immigration to compel witnesses to be available. This had weakened theprosecution’s case, especially in proceedings based largely on victim statements:indeed, in some cases handled by the prosecutor’s office of Perugia, traffickerscharged with serious crimes such as reduction to servitude were acquitted.To be noted in this regard is widespread criticism of the legislators, who profoundlymodified the judicial procedure without including a transitional period, as hadinstead been done in the case of other procedural reforms (article 512 criminalprocedure code).The problem had not arisen:- at the prosecutor’s offices where, together with evidence based on victimstatements, corroborating evidence and a sufficient number of interceptionswere presented to the judge (Arezzo and Trieste);- at the prosecutor’s offices where, for the type of crime concerned (smugglingalone), the strategy adopted was to use procedures alternative to the trial(Tolmezzo and Turin); and- at the prosecutor’s offices where the presence of those reporting the crime wasensured by other means, such as article 18 of the consolidated text of the Lawon Immigration and the incidente probatorio (Brindisi and Palermo).13.2.2 Reading of the judicial police verbals (article 512 and 512-bis of the criminalprocedure code)The need to secure testimony during the trial or to preserve it using the incidenteprobatorio derives not only from the innovations made to article 195 of the criminalprocedure code but also from the interpretation of two further provisions containedin the criminal procedure code: articles 512 and 512-bis. Reading these threenorms together evinces not only that indirect testimony by the judicial police basedon victim and informant statements is inadmissible but also that the related verbalscannot be admitted except in particular circumstances. 392 The judicial police’s or392 Article 512 (Reading of documents due to the impossibility of repeating statements orally) - 1. Thecourt, on request by the party, shall order the reading out of documents drafted by the judicial police, theprosecutor, the defence of the parties and the judge during the preliminary hearing when, due tounforeseeable facts or circumstances, the original statements cannot be repeated.Article 512-bis (Reading of statements made by persons living abroad) - 1. The court, on request of theparty, having considered the evidence, may order the reading of verbals of statements given by personsliving abroad, who, even after an international rogatory request has been issued and the persons have been227
13. The results of the interviews conducted with the most active prosecutor’s offices: best practices in judicial activitiesprosecutor’s verbals can only be read when exceptional circumstances make theirrepetition impossible (article 512 of the criminal procedure code). Article 512-bisof the criminal procedure code deals with the case of foreign residency andestablishes a partial exception to the reading prohibition if the witness, thoughsummonsed, has not appeared and the trial examination of him/her is entirelyimpossible.The rationale behind the three provisions considered is the constitutional principlewhereby, in a trial with participation by the parties concerned, the evidence must bebrought forth by examination and hence before the judge. Nevertheless, it is clearthat strict adherence to these norms creates serious problems in proceedings wherevictims and informants do not have fixed domiciles and cannot be found when theymust testify before the court.In the experience of almost all the prosecutor offices, application of the revisedversion of article 195 of the criminal procedure code and the narrow interpretationof article 512 of the criminal procedure code had vitiated the evidence collectedand had consequently led to acquittals due to the impossibility of reproducing thecontent of the illegal migrants’ statements.The case law on article 512 of the criminal procedure code has taken up three mainpositions on the matter:a) strict interpretation of article 512. The impossibility of finding the illegalmigrant is always foreseeable; therefore, the hearing of documentary evidencetaken by the judicial police is not allowed (Ascoli Piceno, Arezzo, Crotone,Lecce, Milan, Perugia and Tolmezzo);b) flexible interpretation depending on the case. The reading of a statement isallowed only when it is wholly impossible for the witness to appear before thecourt (Brescia, Genoa and Rome);c) broad interpretation. When the victim cannot be traced, statements previouslymade to the prosecutor may be read out (Palermo).Article 512 criminal procedure code has not been applied by the Court of Brindisi inproceedings brought for the crimes in question, because article 512-bis, criminalprocedure code, is the provision applicable in cases of statements made by illegalmigrants immediately upon apprehension.Article 512-bis is considered a partial solution to the problem described above, anda ‘parachute’ option with which to save statements made by victims and keyinformants. If it is possible to obtain the addresses abroad of illegal migrantsturned back at the frontier, they are summoned by means of rogatory procedures.Once their summons has failed, the reading out of their statements is allowed.There are, however, several practical difficulties against using this instrument.Firstly, it takes a long time to issue the summons abroad and this has a negativeimpact on trials where preventive detention has been applied. Moreover, it issummonsed, have not appeared before the court, and only in the case of absolute impossibility of trialexamination.228
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TRAFFICKING IN PERSONS ANDSMUGGLING
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Table of contentsTABLE OF CONTENTS1
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Table of contents10.4 Assistance an
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Table of contents13.1.5 Atypical in
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1. Acknowledgementsthe interviews w
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2. Executive summary2.EXECUTIVE SUM
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2. Executive summaryDuring phase V,
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2. Executive summaryAs regards the
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2. Executive summaryIncidente proba
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2. Executive summary- Establish the
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2. Executive summaryUpdate to the r
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3. IntroductionThe need for reliabl
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3. Introductionpersons and on the s
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4. Goal, objectives and phases of t
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5. Operational definitions5.OPERATI
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5. Operational definitionsany provi
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5. Operational definitions5.3 T5.3
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6. The United Nations Convention ag
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7. The European Union regulations7.
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7. The European Union regulationsEa
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7. The European Union regulations-
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7. The European Union regulationsth
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7. The European Union regulationsb)
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7. The European Union regulationspe
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7. The European Union regulationsTh
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7. The European Union regulationsap
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7. The European Union regulationsOn
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7. The European Union regulations-
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8. Trafficking and smuggling in Eur
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9. Trafficking and smuggling in Ita
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9. Trafficking and smuggling in Ita
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10. Italian legislation and judicia
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11. A map of the phenomenon in Ital
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12. The results of the interviews c
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Page 180 and 181: 12. The results of the interviews c
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Page 248 and 249: 14. Conclusions14.CONCLUSIONSThis r
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Page 252 and 253: 14. Conclusions- Increase European
Page 254 and 255: 14. Conclusions- Provide social sup
Page 256: ANNEXASURVEY ON CASES OF PEOPLETRAF
Page 259 and 260: Annex AData related to the case:Cas
Page 261 and 262: Annex AQuantity and nationality of
Page 263 and 264: Annex ANumber of persons for whom o
Page 266 and 267: Annex BINDEXFIRST PART - THE PHENOM
Page 268 and 269: Annex B1.1 Smuggling of migrants (t
Page 270 and 271: Annex B13. How much do the migrants
Page 272 and 273: Annex B2.2 The perpetrators of traf
Page 274 and 275: Annex Bmeasures, tailing, infiltrat
Page 276 and 277: Annex B45. What kind of internation
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