Second, were I to ask a dozen lawyer about it, I'd probably get as many answers.
Given that, article 8 of the Criminal Code has been applied in this case. Article 8 concerns political crimes committed in foreign territory either by an Italian citizen or a foreigner. Article 9 regulates common crime committed in foreign territory by an Italian citizen or a foreigner. Article 8 appears to allow more leeway in eventually declaring a defendant in absentia.
Now Italy like most continental European nations follows the inquisitorial system of justice while the US generally uses the adversarial system. The fundamental notion of the inquisitorial system is to establish the facts of an event, a sort of judiciary truth. So the prosecution of a person is in a certain sense secondary to this aim.
On national territory, a person who is subject to investigation or indicted must be identified, located and informed of procedures regarding him/her and when hearings will be held. Without going into detail on the articles of criminal procedure concerning "contumacy" or absence of the defendant (Codice di procedura penale, articles 420-quater, 489, 490 &c), the defendant has a right not to attend or participate in his/her preliminary hearings or trial and need only inform the court of the decision. Conversely, there are the conditions that may compel the court to declare a defendant in contumacy despite all lawful procedures undertaken to guarantee his/her presence during hearings. He/she will then be represented by his/her lawyer(s) throughout the trial whether chosen by him/her or by the court. The defendant declared in contumacy may at any moment present himself at hearings.
It may be noteworthy that in the Italian inquisitorial system a defendant has a right to silence and may make spontaneous declarations without taking oath and without cross-examination. The defendant may also ask to be interrogated. The burden of proof of whatever the defendant says always lies with the court.
Whereas the presence of the defendant appears crucial in the adversarial system where evidence is weighed before a jury between two contending parties, it does not appear indispensable for the inquisitorial system (except in rare cases of forming proof where the defendant's presence is indispensable).
The problem with Mario Lozano is not that he hasn't been identified but that he cannot be officially located. Considering the legal steps made by the Italian government for his extradition according to bilateral treaties, US State and Justice are at fault for not honouring those treaties. In fact they are ignoring Italy's grievance.
I presume that in the fine print of norms of procedure and their interpretation a certain burden lies at the feet of the US government in locating and informing Mr. Lozano. The Italian judiciary and the Minister of Justice have done all they can to inform Mr. Lozano of his rights as well as the time and location of hearings. He can at any moment present himself before the court, but whether he does so or not, he will always be represented by his lawyer(s).
So to clarify things, article 8 of the Criminal Code does not regulate trials in absentia. It simply explains the conditions of a crime committed abroad by a citizen or a foreigner that gravely offends the political interests of the State or the political rights of (a) citizen(s). Unlike articles 9 and 10 that regulate common offences the person indicted or the defendant does not have to be present on national territory. Ergo the possibility of a trial in which a defendant is declared in absentia.
In the normal routine of justice on national territory trials in absentia are common in Italy, but its always by the will of the defendant. If the defendant does not show up for a hearing the judge postpones the hearing to another date. If however the defendant continues to not show up without cause, the judge declares that the defendant is in absentia and holds the defensive lawyer as representing the case. Otherwise, a trial would never go anywhere. A very well known case was the IMI-SIR trial against Previti and Berlusconi for bribery and corruption. Berlusconi chose to be defended in absentia while Previti dragged the trial out for years by concocting one excuse after another to postpone hearings. Simply because the statute of limitations never stops ticking away in Italy, unlike most nations.
Re government inquiries. Italy can institute parliamentary inquiries which have judiciary powers. Otherwise, there is no other form of inquiry for similar cases that does not directly involve the judiciary, whether civil or military.
There was a joint US-Italy inquiry in Iraq into the Calipari incident with manifest irregularities on the American part. The Italian investigators refused to sign the final report and wrote a dissenting report which was not taken into consideration. In effect they had been excluded from the key phases of the investigation.
As far as fair trials are concerned there has always been a lively discussion on which system is actually "fairer" to the defendant.
According to la Stampa today Mario Lozano is presently on Staten Island, still with the 69th Infantry Regiment. He's put his destiny in the hands of the US military and reportedly fears a vendetta or an unfair trial. He could just as well express his version in court rather than confiding his misgivings to a media blurb. To consider Italian justice or Italians in general as motivated by vendetta is plain offensive especially confronted with a judiciary system- the American- that openly contemplates such vindictive punishments as the death penalty.
The widow of Nicola and his colleagues, as well as Giuliana Sgrena, have simply asked to find out the truth.
And if Lozano were to actually present himself before the court and eventually be found guilty after a trial? First he would get an automatic six years taken off the sentence thanks to the recent "indulgence" law. The judges would probably do a little backroom mathematics with the international scene in mind and further reduce the sentence for a variety of attenuating circumstances (first offender, clean slate, cooperative, penitent nice guy, war zone stress). At the most that would leave maybe two or three years maximum. He would be released immediately because his case would go to the appellate court. Plus, because of treaties between the States and Italy on serving time in your own nation, Lozano would go back home in no time ostensibly to serve what little time he's been meted if at all, and the case is closed. In the worst of hypothesis he'll land a contract with some PR firm.
And at the same time the offended parties would have had justice.
If instead Lozano does not wish to present himself, he'll just have to avoid visiting a considerable number of nations where he risks being arrested and extradited.
How does a trial in absentia work if the defendant completely ignores the court? I don't just mean not showing up, but not at all. Does the court hire a lawyer to represent his interests and tell him to mount the best defense he can, or is it like in certain civil cases in the US where you get a judgement by default? I'm trying to figure out how you get something resembling a fair trial without having a defendant.
As for in absentia trials in Italy, a defendant has the right to completely ignore his trial- a trial that can only be celebrated if he has been fully informed of when, where and why it is being held. It's a defendant's sovereign choice not to participate. Only in certain case can he/she be conducted to trial by the forces of law.
Your comment on statute of limitations. The Berlusconi government did pass a law modifying it by cutting statutes of limitation for all crimes for which he and his cohorts could be remotely accused. This has made it procedurally impossible to try a large number of crimes within the time limit. The Berlusconi government made further vexative laws such as the need to inform a person he is under investigation in a derisively small time limit. Other laws passed include reducing the time that a state witness may formulate his testimony or putting severe limits on the length of investigations.
Berlusconi practically destroyed the efficiency of the judiciary branch. (Not that it was all that efficient in the first place).
There is however an absolute demand that defendants has gotten informed about the proceedings. So when avoiding the law (yes, statute of limitations clock ticks on) you do not avoid the court proceedings as much as you avoid getting served.
So I guess focus is on giving defendants the possibility of assisting in their own defense, and if they choose not to, well that is their loss.
The US is obstructing justice and has pre-emptively prejudiced the defendant´s case before hand by leaving the Italian side out of the full investigation. Our knowledge has surpassed our wisdom. --Charu Saxena.
No, that's the problem - Italy doesn't have a defendant - it has an arrest warrant out for the defendant. I really, really dislike this idea that somehow the state's burden is lessened if the defendant refuses to cooperate. If you're going to suggest that you don't need anybody presenting alternative theories and pointing out holes in the government's argument, why hold a trial at all? If the prosecutor thinks he is guilty, and he won't cooperate, skip the trial altogether.
The US is obstructing justice and has pre-emptively prejudiced the defendant´s case before hand by leaving the Italian side out of the full investigation.
Are you suggesting that the US is holding back exculpatory evidence of Lonzano's innocence? On the other hand if the evidence they have would hurt his case they're helping him. Think of it on individual terms - if I saw a person commit a murder and I refuse to testify in that person's trial I may be obstructing justice, but I'm certainly not hurting that person's chances of getting off. I'm only hurting him if he's innocent. So if you believe that the US government is hurting Lonzano's case, that presumes that he isn't guilty.
