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Eartier legislation aimed at encouraging members of criminal or terrorist organisations to collaborate did exist (see the reply to question 2), but no provision was made for a specific system of protection in their case. The ordinary police forces were responsible for protecting them from physical harm, but no form of economic or logistical assistance was provided. As a result, collaboration was a rare occurrence, and the few collaborators and their families were at risk of being threatened and suffering reprisals. The most significant cases of collaboration concerned individuals who had already cut off their links with a criminal or terrorist organisation for other reasons.

In contrast, the current system makes it possible to guarantee collaborators, and since 2001 witnesses, a high level of protection and assistance. This has led to considerable growth in co-operation. Since the amendments to the law came into force only a relatively short time ago, it is not yet possible to give a reliable picture of the situation as regards collaborators, but the number of witnesses is already quite high (see the reply to question 24).

Some clarification of the terminology used is necessary.

Nowadays, both collaborators and witnesses are covered by Law No. 82/91. The term "witness" refers to persons who give evidence of relevance to a preliminary investigation or trial proceedings but who have nothing to do with the offences concerned or with any criminal or terrorist organisation involved in their commission; their testimony is accordingly more disinterested since they have nothing to gain from it. Conversely, collaborators with justice (known as pentiti) are persons involved in a criminal or terrorist organisation who give evidence of relevance to a pending investigation into the organisation's activities; their aim is usually to obtain benefits such as remission of sentence, advantages while in prison, protection from the criminal organisation and economic assistance.

However, both witnesses and collaborators tend to play a similar role in trial proceedings. If they are not co-defendants or defendants in related proceedings, collaborators are subject to the same rules as witnesses.

They are accordingly under an obligation to tell the truth and any inconsistency between the evidence they give in court and their earlier statements that led to the collaboration can be challenged. If, on the other hand, the collaborator is a defendant in related proceedings other rules of evidence apply, since he/she may utilise the right to remain silent and not all earlier statements made by him/her are admissible as evidence. Collaborators are also assisted by counsel in the proceedings in which they are not a defendant.

Although the term "pentito" is frequently used to designate a criminal collaborating with justice, it does not appear in the legislation and is inappropriate since those concerned agree to collaborate without necessarily being in a state of repentance or resipiscence or officially dissociating i themselves from the organisation in question. The sole criteria for determining whether they qualify as collaborators are objective ones (newness, completeness, credibility) and do not require the authorities to consider their inner convictions. The term may appear more appropriate to the incentive measures set out in the reply to question 2 since those measures apply only where the collaborator abandons the organisation and renounces violence. However, even then the measures are implemented without questioning the sincerity of the motives which led the collaborator to leave the organisation or contribute to its elimination.

Law No. 82/91 lays down the rules governing admittance to a protection programme, the programme's operation and termination and withdrawal of protection.

Stricter rules applicable in cases of collaboration were introduced in 2001.

These provide, inter alia, that collaborators have 180 days from the date on which they make known their desire to collaborate in order to give their testimony, which must be recorded in an explanatory transcript. The transcript must be kept confidential until the committal for trial. Collaborators must also provide information allowing the authorities to locate all their assets and pecuniary and other resources available to them for the purposes of seizure. Where the above time-limit is exceeded and in the event of failure to record the testimony in the explanatory transcript, the evidence is inadmissible in the trial proceedings and any protection measures already granted must be withdrawn. A collaborator who fails to countersign the explanatory transcript also cannot benefit from the mitigating circumstances provided for in cases of collaboration.

These amendments were made to avoid cases where collaborators varied their testimony over time or falsified it merely in order to obtain a prolongation of the protection programme. According to the case-law, the rules on the 180-day time-limit and the explanatory transcript do not apply to witnesses (Court of Cassation, Criminal Division, II, 18.12.2002, No. 42851). However, legal theorists disagree with this interpretation.

2. Please describe the framework (legal provisions and established practice) governing the use of measures encouraging witness and pentito to co-operate with the justice system.

Witnesses and pentiti are encouraged to co-operate with the judicial authorities by means of measures to protect them from physical harm and other measures of the nature of incentives.

As regards pentiti, the first incentive measures introduced in Italy in fact concerned offences linked to terrorism or attempted subversion of the constitutional system perpetrated in the 1970s and 1980s.

The first set of measures applicable to pentiti were set out in Decree Law No. 625 of 15 December 1979 (converted into Law No. 15 of 6 February 1980), entitled "Urgent measures to safeguard democracy and public safety", which introduced specific mitigating circumstances for persons who, having committed a terrorist or subversive offence, cut off their links with their co-perpetrators and sought to prevent the continuation of the criminal activity and its further consequences; the decree also introduced extenuating circumstances for those who prevented the commission of the offence. These rules are still in force and apply to offences committed at any time.

Subsequently, Law No. 304 of 29 May 1982, entitled "Measures to safeguard the constitutional system", was passed, which also applied to offences linked to terrorism and attempted subversion of the constitutional system, but solely where these had been committed before 31 January 1982. Under that law, persons who helped to eliminate a terrorist organisation or abandoned it while informing on its structure and organisation benefited from extenuating circumstances in respect of the offence of criminal association and certain less serious offences committed by the organisation; mitigating circumstances in respect of other offences; remission of sentence and broader access to certain advantages while in prison.

lastly, Law No. 34 of 18 February 1987, entitled "Measures in favour of persons dissociating themselves from terrorism", introduced commutation or mitigation of sentence and advantages while serving a prison sentence for persons accused or convicted of terrorist or subversive offences who officially dissociated themselves from terrorism and rejected it as a means of

political action. This law is solely applicable to offences perpetrated before 31 December 1983.

The legislation on persons collaborating with justice (Decree Law No. 8/91), which lays down the protection measures described in question 19, initially contained no measures to reward collaborators, who accordingly benefited from the ordinary incentive measures, including those provided for in the above-mentioned legislation on terrorist offences. Law No. 45/01 changed this by introducing Articles 16 quater - 16 novies, which, firstly, imposed more stringent conditions on collaborators, who benefit from the mitigating circumstances ordinarily provided for only if the co-operation they offer meets certain criteria (see the reply to question 1), and, secondly, made it possible to grant the advantages provided for by law (release on parole, leave, home imprisonment) also as a departure from the ordinary sentencing requirements on condition that the detainee has served a significant part of the sentence, co-operates in accordance with the above-mentioned criteria, does not pose any danger, has behaved well and has shown signs of resipiscence.

A special measure to encourage co-operation by nationals of non-European Union member states is set out in Legislative Decree No. 286 of 1998. Article 18 provides that a foreigner who is in danger and who decides to co­operate with the judicial authorities, or in any case shows a desire to break away from a criminal organisation, can be eligible for a special residence permit and may be admitted to an assistance and social integration programme.

Lastly, another incentive measure is laid down by Law No. 108 of 1996 for victims of usury. Those who declare themselves victims of this offence and are willing to testify against the perpetrator can obtain an interest-free loan from a special governmental fund.

3. Can measures/benefits encouraging the co-operation of witnesses
and pentiti be used in combination with protection measures
(arrangements concerning trial proceedings, sentencing
conditions, special penitentiary regimes, etc.)? If so, please specify
and indicate under which conditions they are applied.

Yes, the benefits described in the reply to question 2 can be combined with protection measures, under the conditions set out in the aforesaid answer.

4. For what kind of crime and under what circumstances can witness
and pentito protection be applied? Can the measures be extended
to the relatives or other persons close to the witness/penf/fo?

The conditions for granting protection measures vary for witnesses and for pentiti.

fatnesses are guaranteed protection where the ordinary security measures fiat may be taken by the police are inadequate and the witness is xdingly in serious, present danger on account of the testimony given. Itfhis may concern statements made in the course of a preliminary judicial ^investigation or during public trial proceedings in respect of any kind of ^offence.

Щ or pentiti (or collaborators) the same conditions apply as regards the state %f;danger, but protection is guaranteed only in respect of certain serious jpffences, in particular where their testimony concerns offences of terrorism |Sr subversion of the constitutional system or offences among those listed in ^rticle 51, paragraph 3 bis, of the Code of Criminal Procedure (criminal association in a mafia-type organisation, kidnapping, criminal association for ^Jthe purpose of drug trafficking, criminal association for the purpose of ||smuggling). They are also guaranteed protection solely on condition that ^& 'heir statements are intrinsically credible, adduce new evidence or can be to be particularly important for the conduct of an investigation or the Outcome of a trial.

ie case of both witnesses and pentiti the protection measures can also applied to persons living with them on a permanent basis, or persons >, while not living with them, are in real, serious, present danger, ^ever, where pentiti are concerned, being related by blood or marriage or \g a pentito's spouse is not in itself sufficient to guarantee the extension rotection measures.

What urgent measures (e.g. immediate relocation to a secret place) can be taken in order to protect witnesses and pentiti?

ises of urgency the Central Committee can, on the basis of summary nation, adopt a provisional protection plan, making it possible to take all [ordinary protection measures in advance of an official decision. The imittee subsequently re-examines the case in the light of a routine inquiry may decide to cancel the provisional measures or to definitively adopt i. In cases of special urgency, where it is not possible even to wait for ^committee to decide on a provisional plan, the Chief of Police may, 1mg the committee's decision, order immediate police measures for the tnced protection of the person concerned and his/her relocation to a ъ place. The rules governing the adoption and implementation of urgent es are laid down in Ministerial Decree No. 161 (Article 4) issued by (mister of the Interior on 23 April 2004.

6. What institutions are involved in the protection of witnesses and pentiti and what is their role (e.g. law enforcement agencies, special independent agencies, prosecutor's offices, judicial authorities, etc.)? How does co-operation between the relevant institutions work in practice?

The following are involved in the protection of witnesses and pentith the Central Committee for the Definition and Application of Special Protection Measures, the Central Protection Department, the Chief of Police, the Prefects, the Public Prosecutors, the District Anti-Mafia Prosecutors, the Principal Public Prosecutors at the Courts of Appeal, and the National Anti-Mafia Prosecutor. See the Minister of the Interior's Ministerial Decree No. 161 of 23 April 2004.

The Central Committee's role is to examine proposals concerning the

granting of protection measures and admittance to a special protection

programme, to take decisions thereon, to supervise the implementation of

; the protection measures and programme, and to take decisions on changes

' in or withdrawal of protection measures ex officio or on request. It is made

up of an Under-Secretary from the Ministry of the Interior, two members of

the judiciary and five public officials having the status of police officers.

The Central Protection Department's role is to assist the Committee with inquiries concerning proposals for the granting of protection and to implement the special protection programme decided by the committee. It is a police agency attached to the Ministry of the Interior.

Apart from taking the measures described in the reply to question 5, the Chief of Police has two roles: he/she has authority to propose that an individual be granted protection and is responsible for coordinating relations between the Prefects and the police as regards the special protection measures to be implemented in the protected individual's place of residence.

The Public Prosecutors and the District Anti-Mafia Prosecutors, whose offices bring prosecutions for the offences to which the individual at risk has testified, have authority to make admittance proposals. Where several offices are conducting related inquiries, the proposal is made by one office in agreement with the others. In the case of the offences covered by Article 51, paragraph 3 bis, of the Code of Criminal Procedure (see the reply to question 4), the proposal must be forwarded to the National Anti-Mafia Prosecutor, who is also responsible for settling any difference of opinion; where the offences are linked to terrorism the proposal is made in agreement with the relevant Principal Public Prosecutors.

Iff here are no specific provisions governing the protection of witnesses and ЩеШШ in relation to acts of terrorism. Law No. 374 of 2001 gave the District ■^nti-Mafia Prosecutors jurisdiction concerning terrorist offences. However, Tlfieir role with regard to the protection of witnesses and pentiti is not different j-om that described in the reply to question 6.

How does the framework governing the use of measures protecting witnesses and pentiti and encouraging them to co-operate with the judicial authorities guarantee respect for human rights and individual freedoms? Please indicate the procedures in place, if any, to monitor compliance with human rights standards.

ifjjie system for the protection of witnesses and pentiti guarantees full Ijespect for human rights and fundamental freedoms. See the reply to gjuestion 15 as regards the principle of equality of arms and the rights of the ]|efence. With regard to victims' rights, it can be noted that victims are pntitled to appoint counsel to represent them during the preliminary Investigation and trial, to challenge the authenticity of statements made by itnesses or pentiti, to object to any discharge order given at the Investigation stage on the basis of the testimony of a witness or pentito, to ^request the public prosecutor to appeal against a judgment of conviction without punishment and to sue for damages.

The main responsibility for verifying that the above principles are upheld lies with the trial court handling the proceedings in which the witness or pentito gjps evidence, since it must ensure that the rights of both defendants and /K§ims are safeguarded. In addition, if false testimony is given, the court transmit the case documents to the public prosecutor so that the i|yant witness or pentito can be charged with perjury.

Wrocedural measures

At what stage(s) and in what context is it possible for witnesses and pentiti to benefit from procedural measures of protection?

uural protection measures may be granted to witnesses and pentiti at the preliminary investigation and trial stages. Some procedural ures apply to anyone who is in danger, regardless of whether they been admitted to a protection programme (see the reply to question vi d), e), f), g)); conversely, other measures are dependent on tfttance to the programme (see the reply to question 11 a), b)).

10. Can witnesses and pentiti obtain legal assistance at this (these) stage(s)?

Yes, witnesses and pentiti can obtain legal assistance at all stages in proceedings.

For witnesses, free legal assistance is available in respect of proceedings in which they give evidence where they are also a victim and wish to avail themselves of their procedural rights (submission of memorials, raising of objections, suing for damages); as regards other proceedings, legal assistance is part of the economic assistance measures that may be granted to a witness in order to ensure that his/her standard of living is unaffected by the testimony.

For pentiti, legal assistance is guaranteed in respect of the proceedings in which they give evidence.

11. Are there alternative methods of giving evidence which allow the protection of witnesses and pentiti from intimidation resulting from face to face confrontation with the accused? If yes, please specify (e.g. full or partial anonymity, video-conference, disguise, exclusion of the defendant from the courtroom when the witness is giving evidence, exclusion of the media or the public from the trial, etc.) and indicate under which conditions these methods are used.

Yes, there are many methods of safeguarding witnesses and pentiti from the intimidation resulting from face to face confrontation with the accused.

a) Article 147 bis of the implementing provisions of the Code of Criminal Procedure provides that individuals who, in accordance with the law, are granted protection measures or admitted to a protection programme, even of an urgent or provisional nature, shall be heard during trial proceedings with all the precautions necessary to safeguard their persons. In particular, it is possible to have them testify from a remote location via an audiovisual link, simultaneously guaranteeing the visibility of all those present in the room where the person giving evidence is located. For the offences covered by Article 51, paragraph 3 bis, of the Code of Criminal Procedure (criminal association in a mafia-type organisation, kidnapping, criminal association for the purpose of drug trafficking, criminal association for the purpose of smuggling) and terrorist offences, and where the person giving evidence has changed his/her identity, this procedure is mandatory except where the court deems that the person's presence in the courtroom is absolutely necessary. If a person has changed identity, he/she must be able to give evidence without his/her face being visible

Article 147 ter of the implementing provisions of the Code of Criminal Procedure provides for similar precautions to be taken as regards the identification of individuals who have changed identity or any other step entailing bodily observation.

Article 214 of the Code of Criminal Procedure lays down the general rule that, in cases of identification, where there is due reason to believe that the person required to make the identification may be intimidated or otherwise influenced by the presence of the person whose identity is being established, the procedure may take place without it being possible for the defendant or pre-trial detainee to see the person making the identification. This rule applies to both trial proceedings and preliminary investigations.

Where witnesses' anonymity must be protected, Article 472 of the Code of Criminal Procedure makes it possible to hold the hearing without the public being present. Proceedings concerning sexual offences perpetrated against minors are never held in public.

The defendant is entitled to be present at the hearing, but if his/her conduct is of a nature to disrupt the proceedings, the court may order his/her temporary or permanent removal from the courtroom.

|f) Article 392 of the Code of Criminal Procedure provides for the possibility of a so-called advance hearing to take evidence (incidente probatoho), that is to say the taking of evidence in the same way as during the trial proceedings, and hence as described above, also at the investigation stage before the committal for trial. The circumstances in which this is permissible include where, on the basis of specific, tangible evidence, there is due reason to believe that the person concerned may be at risk of suffering violence, being threatened or being bribed, etc.

iArticle 398, paragraph 5 bis, of the Code of Criminal Procedure jj|rqvides that advance taking of evidence in cases concerning sexual jgffences perpetrated against minors under the age of sixteen may take Jj||ace under special conditions: the hearing may be held in a location jjlher than the court, such as the minor's home or the premises of a p|ecialist counselling agency; the minor's statements must be recorded *%full by phonographic or audiovisual means.

pwhat grounds and on the basis of which criteria can anonymity | granted? Is there the possibility to obtain legal assistance at Ц stage?

pity may be guaranteed within the limits specified in the reply to Ri 11.

13. Are pre-trial statements of witnesses and pentiti and testimonies of anonymous witnesses and pentiti regarded as valid evidence? If yes, under which conditions?

Pre-trial statements by witnesses and pentiti are admissible as evidence on the following conditions. Where the statements were made in the course of a so-called advance hearing to take evidence, that is to say at the investigation stage, in the presence of the defendant's counsel and before a judge other than the investigating judge, they are fully admissible as evidence for the purpose of the final verdict. As mentioned in the reply to question 11, the circumstances in which it is possible to hold an advance hearing to take evidence include where there is due reason to believe, on the basis of specific, tangible evidence, that the person concerned may be at risk of suffering violence, being threatened or being bribed, etc.

, Where statements were made in the course of the investigation to the public (prosecutor or the police, but the person testifying does not repeat them at the public hearing, they are admissible as evidence if there is tangible evidence to show that the witness was subjected to violence, threatened or bribed in order to prevent him/her from testifying or to cause him/her to falsify the testimony (Article 500, paragraph 4, of the Code of Criminal Procedure).

14. Is it possible and, if so, under which conditions to use information provided by pentiti? How is their credibility assessed?

As stated in the reply to question 1, in some circumstances pentiti are treated as having the same status as witnesses. This is the case:

a) where pentiti are not involved, directly or indirectly, in the proceedings
concerning which they are testifying;

b) where they had the status of defendants in related proceedings and a
final, irrevocable decision/judgment has been given concerning them;

c) where they are defendants in related proceedings and their testimony
concerns the criminal liability of others.

In all of the above cases, pentiti are required to tell the truth and in circumstances b) and c) they are assisted by counsel (see Articles 64, 197 bis and 210 of the Code of Criminal Procedure). This is justifiable because, in Italian law, defendants are in principle entitled to remain silent and are not obliged to tell the truth. Treating pentiti on the same footing as witnesses exposes them to the consequences of a false testimony and prevents them from being able to make false allegations against others by taking advantage of their status of defendant.

ever, where pentiti are co-defendants in the proceedings in which they We testifying they retain the status of defendant. They are not required to tell the truth. Statements they made during the preliminary investigation can be used against other defendants only if they reiterate them at the hearing, if the defendant in question consents thereto or if their repetition at the hearing has become impossible for objective, unforeseeable reasons (Article 513 of the Code of Criminal Procedure).

lljpall events, according to the case-law, if they are to be deemed

credible " Щс1 admissible as evidence, statements made by pentiti must be subject to

ТЦу strict scrutiny and should be corroborated by other reliable evidence

||!curnents, other testimonies, etc.).

■I

15. What opportunities are there for the exercise of the rights of the defence, including the right of the accused to challenge the witness'/penf/to's credibility in criminal proceedings (including at the pre-trial stage) and the respect of the "equality of arms" principle?

cle 111 of the Italian Constitution expressly provides that:

a) criminal proceedings shall be adversarial and based on equality between

all parties;

b) the defendant's representative shall systematically be entitled to cross-
examine persons testifying against him/her;

no defendant may be found guilty on the basis of testimony given by persons who avoided cross-examination by the defence, except in the cases expressly laid down by law.

fse principles are reiterated in the Code of Criminal Procedure, which (fides that evidence shall be taken in the course of the hearing, except in ific circumstances, and affords the defence considerable opportunities lallenge it. In particular, the defence may adduce exonerating evidence, |lenge the admissibility of testimonies against the defendant, cross-|nine witnesses and co-defendants and challenge the credibility of pentiti itnesses at all stages in the proceedings (see the replies to questions 13 14).

the pre-trial investigation, the defence cannot challenge statements by a witness or a pentito to the public prosecutor or the police except an advance hearing is held to take evidence (Articles 392 et seq. of Code of Criminal Procedure), that is to say only in exceptional Instances where the evidence is established before the trial lings.

However, compliance with the principle of equality of arms is guaranteed at the investigation stage by the rules on defence investigations (Articles 391 bis et seq. of the Code of Criminal Procedure), which entitle the defence to conduct its own investigation and to obtain certified statements from witnesses or defendants, which can be utilised at the hearing, in the same way as those taken by the public prosecutor and the police, in order to challenge testimonies given in court.

c. Non-procedural measures

16. At what stage(s) and in what context is it possible for witnesses
and pentiti to benefit from a protection programme?

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