The legislative powers of the police to stop individuals
In Italy, police stops are regulated either:
- by the code of criminal procedure (hereinafter “CCP”) in strict connection with the power to arrest individuals; or
- by other pieces of legislation concerning national security or public order issues (hereinafter the “administrative legal framework”)
A) Within the framework of CCP, stopping, questioning and searching may be performed by police either:
- Following an order of the public prosecutor where the conditions listed in Articles 384 CCP (a person suspected of a serious crime is at risk of absconding);
- On their own initiative, and in particular:
- to identify those accused of having committed a crime and other persons able to provide useful information on such crime. In this context, police may take fingerprints, pictures, details of height, weight etc, and even DNA. DNA samples, however, may be taken only with the consent of the person checked, or with the written authorization of the public prosecutor (Art. 349 CCP). In case of urgency, such authorization may be orally provided by the prosecutor, and confirmed in writings afterwards.
- where an individual is caught near a scene or is evading the police, officers may carry out a personal or local area search when they have good reason to believe that the person has hidden things or evidence pertinent to the crime that can be destroyed or disposed of (Art. 352(1) CCP).
- when a person is detained, officers may also carry out a personal or local search if the conditions indicated in the above bullet point are met and there are particular grounds of urgency that do not allow the issue of a timely search order (Art. 352(3) CCP).
- where there is a risk of absconding, before the before the Public Prosecutor takes over the investigation (Art. 384(2) CCP), or where the risk of absconding is such that it is not possible to wait for the warrant from the prosecutor (Art. 384(3) CCP).
In cases of search that leads to seizure, police shall transmit a report of the incident without delay, and in any case no later than forty-eight hours, to the local public prosecutor. If the conditions are met, the public prosecutor shall validate the search within 48 hours.
B) Within the administrative legal framework:
- stop and searches may also be performed by police in order to assess potential administrative violations (Art. 13, Law 24.11.1981, no 689).
- stop and searches may also be conducted to assess the possession of weapons or explosives (Art. 4, Law 22.05.1975, no 152).
- in cases of urgency, where it is not possible to wait for the intervention of the judicial authority, police may operate stops and searches in order to prevent or prosecute offences, such as drug trafficking (Art. 103, d.P.R. 9.10.1990, no 309), organized crime and money laundering, and illegal immigration (Art. 12(7), Legislative Decree 25.07.1998, no 286).
- stop and searches may also be performed by police in order to assess potential administrative violations (Art. 13, Law 24.11.1981, no 689).
In all these cases, reports of the operations carried out shall be drafted and sent to the Prosecutor for validation. In order to use the results of such operations (e.g. seizure) at trial, validation should occur within 48 hours from the notification. (Art. 4, Law 22.05.1975, no 152).
The obligation to register stops
According to Article 357 CCP, police searches are documented in the form of a report, containing a reference to the place, year, month, day and, when necessary, time at which it began and ended, the details of the persons present, an indication of the causes, if known, of the absence of those who should have intervened, a description of what the auxiliary has done or ascertained or what has happened in her/his presence, as well as the statements received. The level of detail for such reporting may be chosen, by police, taking into account the nature of the investigation. Reports shall be made available to the public prosecutor.
Legislation procedures which protect citizens from police offences
The rights of an individual, in the case of arrest, are guaranteed by information rights, by the assistance of a defence lawyer and by the mechanism of judicial review.
In the case of identity checks, police shall warn the person of the consequences of refusing to identify him/herself, and shall ask the person to declare his/her domicile for future notifications (Articles 66 and 349 CCP and Art. 21 disp.att. CCP).
Where the police search led to a seizure, according to Article 355 CCP, the police shall give a copy of the search report explaining the reason behind the seizure to the person from whom the object(s) was seized. Also the validation decree issued by the Prosecutor shall be immediately delivered to the same person.
The person against whom the search is carried out has the right to be assisted by a defence lawyer during the search if the latter is promptly available. There is not, however, a duty to notify the lawyer in advance, nor to wait for his/her arrival.
Against the validation decree, the accused, his/her lawyer, the person from whom the object(s) was seized and the person that owns or legitimately possesses what has been seized, have the right to submit an appeal (riesame – Art. 324 CCP) to the Tribunal specializing in the review of precautionary measures (Tribunale del riesame).
In case the police stop and search does not lead to seizure of any object, no remedy is provided for by the code to complain against such police acts. Specific remedies are instead provided for in case the person gets arrested following such police activity (information rights, by the assistance of a defence lawyer, judicial review, and compensation in case of unlawful arrest).
