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Italy: New Law on the Protection of Judicial Witnesses Enters into Force

(Apr. 4, 2018) On February 21, 2018, a new law on the protection of judicial witnesses came into effect in Italy. (Law No. 6 of January 11, 2018, Provisions for the Protection of Judicial Witnesses) (Law No. 6), GAZZETTA UFFICIALE (G.U.) (Feb. 6, 2018) (in Italian).) This Law seeks to dismantle the judicial strategies so far pursued by terrorist and mafia suspects through the intimidation or coercion of witnesses. (Alberto Cisterna, In Gazzetta la Legge con le Disposizioni per la Protezione dei Testimoni di Giustizia [New Law with Provisions for the Protection of Judicial Witnesses in Gazette] WOLTERS KLUWER: IL QUOTIDIANO GIURIDICO (Feb. 7, 2018).)  This Law received an exceptionally broad level of support from the Italian Parliament as it was unanimously approved by the Senate. (Monica Rubino, Testimoni di Giustizia, la Riforma è Legge: Più Tutele a Chi Denuncia Crimine e Mafie [Judicial Witnesses, the Reform Is Law: More Protection for Those Who Denounce Crimes and the Mafia] R.IT (Dec. 21, 2017).) The bill leading to the new Law was based on the draft prepared by the Parliamentary Anti-Mafia Commission on October 21, 2014. (Mafia. Ok Definitivo a Legge su Protezione Testimoni di Giustizia. Bindi: Segnale Importante [Mafia. Final OK to Law on the Protection of Judicial Witnesses. Bindi: An Important Signal] R.IT (Dec. 21, 2017).)  This new Law constitutes an update and improvement on the protective measures included in the previous legislation. (Law No. 45 of February 13, 2001, Amendment on the Protection of the Penalty System for Those Who Collaborate with the Judicial System as well as Provisions Benefitting Persons Who Provide Testimony) G.U. (Mar. 10, 2001) (in Italian).)

Special Protective Measures for Judicial Witnesses

The new Law establishes protective measures for persons who are to provide witness testimony at judicial proceedings. Protected witnesses include persons who are exposed to serious, current, and concrete dangers as a result of their stable cohabitation or other relationships with judicial witnesses. (Law No. 6 art. 1(2).)

The legal definition of judicial witnesses includes persons who provide, within a legal procedure, justifiably reliable testimony that is relevant for the investigation or sentencing (id. art. 2(1)(a)); testify in support of the injured party with respect to the facts of the crime or information about other witnesses that are to testify in the case (id. art. 2(1)(b)); have neither been convicted of crimes connected to those under investigation nor benefited from their relationship with the criminal case in which they are providing their testimony (id. art. 2(1)(c)); have not been subject to preventive measures or are not currently being prosecuted under the Anti-Mafia Code on the grounds that they pose a social danger and are reasonably likely to commit a serious crime (id. art. 2(1)(d)); and currently are in concrete, grave danger that ordinary preventative measures adopted by public security authorities will be inadequate to protect against (id. art. 2(1)(e)).

Types of Special Protective Measures

Special protective measures seek to safeguard the personal safety of judicial witnesses and include security measures, measures for economic support, and measures for social and employment reinsertion. (Id. art. 3(1).) Such special protective measures are determined case by case on the basis of several factors, including the dangers to which the judicial witness is exposed and their detrimental effects on his or her personal, family, social, and economic circumstances. (Id. art. 4(1).)

Other protective measures adopted exceptionally in extremely dangerous situations include the transfer of the person to another locality and the use of cover identity documents. (Id. art. 4(2).) Economic support measures include the payment of expenses derived from the application of special protective measures or a permanent stipend when continuing to work is impossible under the circumstances. (Id. art. 6(1)(a) & (b).) Other measures include housing accommodations when judicial witnesses must attend judicial procedures in localities other than those of their usual abode (id. art. 6(1)(c)); health insurance payments (id. art. 6(1)(c)); and legal fees generated by the respective judicial proceedings (id. art. 6(1)(e)). Financial assistance takes the form of lump-sum and all-inclusive compensation as a relief for the injury caused by providing testimony under special protective measures. (Id. art. 6(1)(f).) Additionally, financial assistance includes the acquisition by the state of real property owned by judicial witnesses when their transfer to another location is required because of the judicial procedures and when the normal sale of the real estate is not feasible. (Id. art. 6(1)(h).)

Social and Employment Reinsertion Measures

Social and employment reinsertion measures include the witness retaining his or her job despite absence from work or the transfer of the witness to another employment or office for security reasons (id. art. 7(1)(a)); support for other unpaid work in the new locality to which the witness has been transferred (id. art. 7(1)(b)); support for business activities of judicial witnesses that may be actually harmed by the application of special protective measures (id. art. 7(1)(c)); being provided with the use of assets from the National Agency for the Administration and Destination of Assets Seized and Confiscated from Organized Crime (id. art. 7(1)(d)); access to subsidized loans (id. art. 7(1)(e)); and finding new employment for the witness (id. art. 7(1)(f)).

Duration of Special Protective Measures

Special protective measures may not last more than six years. (Id. art. 8(1).) During this period the authorities must periodically reevaluate the current need for the measures and severity of the danger to which the judicial witness is exposed, as well as the suitability of the protective measures already in place. (Id. art. 8(1).)

Application Procedure for Special Protective Measures

The Law creates a central commission within the Ministry of the Interior in charge of applying special protective measures, which carries out its duties with previous consultation with the National Anti-Mafia and Counter-Terrorism Prosecutor. (Id. art. 11(2).) The commission may adopt, without delay or formalities, provisional protective measures. (Id. art. 12(1).) The commission evaluates all protection programs every six months and may amend or revoke them at any time. (Id. art. 13(3) & (4).)

Urgent Measures

In case of urgent situations of particular gravity that cannot wait for the central commission to meet and deliberate, the provincial authority of public security may approve urgent special protective measures. (Id. art. 18(1)–(2).)

Aggravating Circumstances for the Crime of Slander Related to Protective Measures

The new Law increases by a third to a half the penalty for the crime of slander established in article 368 of the Criminal Code when the perpetrator has committed the crime for the purpose of profiting or continuing to profit from special protective measures established in the new Law; the penalty is increased from half to two-thirds when any of the benefits established by the Law has been obtained through slander. (Id. art. 22(1).)